A Bigger Deal Than You Think

Indiana Gov. Mike Pence listens to a question during a news conference, Tuesday, March 31, 2015, in Indianapolis. Pence said that he wants legislation on his desk by the end of the week to clarify that a new religiou... Indiana Gov. Mike Pence listens to a question during a news conference, Tuesday, March 31, 2015, in Indianapolis. Pence said that he wants legislation on his desk by the end of the week to clarify that a new religious-freedom law does not allow discrimination. The law has triggered an outcry, with businesses and organizations voicing concern and some states barring government-funded travel to the Midwestern state. (AP Photo/Darron Cummings) MORE LESS
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As the Indiana debacle unfolds there is an unmistakeable and merited glee from supporters of LGBT rights as they watch the law’s sponsors buffeted by waves of bad publicity and threatened boycotts. As I noted on Monday, Indiana is anything but the first state to pass anti-gay legislation. It’s just that the state’s governor and Republican legislators seem to have stumbled onto one of those tipping point moments when the balance of public sentiment and action doesn’t just shift but shifts dramatically, with the initial shift building on itself. I doubt very much that most of the companies and organizations that have announced boycotts or opposition in recent days thought they would be doing so before Salesforce’s Marc Benioff made his announcement just five days ago.

But for all this, I think the sheer scale of the debacle is still not quite visible. It’s hidden in plain sight. But we’re not quite seeing it.

It’s not just that the law’s defenders are denying it targets gays and lesbians. It’s not just that they’re claiming (mostly falsely, it turns out) that other states and the federal government have similar laws. It’s this: virtually everyone from the governor on down is claiming not only that the law wasn’t intended to allow discrimination and that it does not have this effect but that they oppose discrimination in any form.

No one of any prominence has been willing to say that gays and lesbians don’t deserve “special rights” (as the social conservative right likes to phrase it) or that godly business owners shouldn’t be forced to participate in same sex weddings that violate their religious principles. (If you’ve missed this, catch up on the bakery rights movement.) If you listen to Gov. Pence, you half expect he’s about to push through a full LGBT anti-discrimination bill just to make clear he loves him some gays and doesn’t accept discrimination in any form.

Now, no, I don’t expect that the “fix” he was referring to today will amount to that. Indeed, social conservatives have always tried to find ways to argue that they don’t support discrimination per se – just “special rights” etc. But these kinds of slippery, obfuscating arguments have major consequences. And these are far more total and unqualified than we almost ever see in these cases.

Apologists for the Indiana law are out guffawing and saying how Bill Clinton and Barack Obama and half the states in the country and even the federal government all supported or have the same laws (largely false) and that it’s a pure calumny to claim the law is intended or can make it possible to discriminate against gays and lesbians. But this is winning by losing. Because every restatement of this argument – even if it’s largely bogus – drives home the argument that any form of discrimination against gays and lesbians is literally indefensible, even allowing people with socially conservative social values to discriminate because of “religious liberty.” Even claiming anyone thinks that is apparently now an affront. In other words, even the tactical wordplay and verbal jujitsu amounts to conceding a major strategic defeat.

Now, I’m not naive enough to think that anyone has changed their stripes. But the defense of the Indiana law has gone a fair way to establishing a new standard – from the social conservative right itself: that any law, not just one that is expressly discriminatory but one that creates a loophole for private discrimination, is not worthy of defense. If someone asks Gov. Pence tomorrow if he thinks a bakery should be able to refuse to bake a cake for a same sex marriage, what will he say? I suspect this Indiana standard will be invoked widely with corporations and other large institutions as anti-gay legislation, or even the refusal to codify protections for gays, is debated in other states. Even now, you can see that companies and unions and sports organizations and even what are normally the most conservative corporations are practically falling over each other to denounce the law.

It’s a big, big deal. And it’s only the fireworks and hapless walkback that so far has kept people from focusing on this simple point.

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