Wrong In Washington, Worse In Indiana

Salon's Elias Isquith (video of discussion at Newsmax, below) is right when he recognizes

Vox, the Indianapolis Star, Think Progress, the Federalist, the Washington Post and National Review. Generally, these pieces reach the conclusions you’d expect: The left-of-center sites report that Indiana’s RFRA is different — or that the recent Hobby Lobby decision has changed the federal law’s implications — and the right-of-center ones find that there are no significant differences.

The right-of-center ones are wrong, of course. But Isquith is far too generous when he writes

Although he is one of my favorite pundits, The Week’s Michael Brendan Dougherty is also a devout Catholic who tends to lean conservative on economics. So when it comes to the political arguments of any given news cycle, we more often than not disagree. But while that’s been the case with the contentious “religious freedom” law recently passed (and more recently amended) in Indiana, I do think Dougherty’s Tuesday column about the controversy made a point that has otherwise gone under-appreciated.









You will fail if you try to be as wrong as Dougherty when he argues

The White House, which has made its objection to the Indiana law clear, isn’t highlighting differences between the statute Obama supported in the 1990s and the one Pence just signed. This morning on ABC’s This Week, White House spokesman Josh Earnest said the seeming discrepancy is just because times have changed. “If you have to go back two decades to justify something that you’re doing today,” Earnest said, “it may raise some questions about what you’re doing.” 

This is a weak, unserious argument. Of course, Obama’s position on some issues seems to have changed since he was a state senator, just as, for instance, Bill Clinton now opposes the Defense of Marriage Act he signed in the ’90s. But if the White House’s argument is that he now feels a law like Indiana’s is wrong, then he should support the repeal of laws like it at the state level, too. The fact that he isn’t, and no one else really is, either, gets to why the hysteria over religious-liberty laws is a sham....

On the contrary, it is a strong, serious argument and not only because the Indiana law (at least in its earlier iteration, to which Dougherty is referring) can be used as a vehicle to discriminate against gay individuals. Worse yet, it could be used to rationalize discrimination against individuals. As with the revision, it authorized invocation of religious beliefs as a defense against lawsuits charging discrimination.

There has been no scholarly, or other, finding that Jesus, the Old Testament, or the New Testament blesses discrimination on the basis of gender preference.  yet, the law in Indiana thus gives religion- or, rather, one's convenient interpretation of his/her religion- a special status. Congratulations, conservatives! To unbelievers and the uncertain, you've now crafted an image of discrimination as consistent with Christianity.

There is, additionally, a disturbing pretext to Dougherty's claim "if the White House's argument is that he now feels a law like Indiana's is wrong, then he should support the repeal of laws like it at the state level, too."

That would be extraordinarily un-Obama like. The right continues to believe (could anyone, though, be this blind?)  that President Obama is an arrogant extremist bent on denying American exceptionalism and reshaping America. There might be some question exactly what Barack Obama is. But one thing we know for sure: he is no revolutionary.

This is a guy who, faced with the greatest economic debacle since the Great Depression, passed on prosecuting major financial figures for their role. He wanted to "look forward, not backward" and explicitly ruled out even inquiring as to the deception of federal agencies and Bush Administration employees relative to the war in Iraq, conducting possible illegal surveillance, and torture.  Even his signature achievement- health care reform- was crafted with a view toward support from the private sector and fell far short of what the left advocated and a plurality of Americans supported,  And even in one of his conservative initiatives- agreeing to a buildup of American forces in Afghanistan- he avoided the steep increase in troop strength recommended by his generals.

Sometimes a fellow just doesn't want to make waves. That may be the President's reason for not calling for repeal- as Dougherty believes he should do to demonstrate intellectual consistency- of state laws which are not identical to each other.  President Obama also isn't anxious to invite further, much greater, controversy, by calling for repeal of the misguided 1993 federal Religious Freedom Restoration Act, sponsored by the future Democratic leader of the Senate.

So Josh Ernest, whatever he himself (or the President) believes about the RFRA, understands "if you have to go back two decades to justify something that you're doing today, it may raise some questions about what you're doing."  As one conservative paraphrased Justice Scalia's view in those days, "the First Amendment does not provide a religion-based exemption from compliance with a law of general application that is religion-neutral — i.e., a law that applies to everyone equally and does not discriminate against adherents of a particular religion." Still, with both the federal law and some state laws, sometimes- as Barack Obama realizes- it is better to let sleeping dogs lie.



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