newyorker | The Indiana law is the product of a G.O.P. search
for a respectable way to oppose same-sex marriage and to rally the base
around it. There are two problems with this plan, however. First, not
everyone in the party, even in its most conservative precincts, wants to
make gay marriage an issue, even a stealth one—or opposes gay marriage
to begin with. As the unhappy reaction in Indiana shows, plenty of
Republicans find the anti-marriage position embarrassing, as do some
business interests that are normally aligned with the party. Second, the
law is not an empty rhetorical device but one that has been made
strangely powerful, in ways that haven’t yet been fully tested, by the
Supreme Court decision last year in Burwell v. Hobby Lobby. That ruling allowed the Christian owners of a chain of craft stores to use the federal version of the RFRA
to ignore parts of the Affordable Care Act. Ruth Bader Ginsburg, in her
dissent, argued strongly that the majority was turning that RFRA into a protean tool for all sorts of evasions. As Jeffrey Toobin has noted, she was proved right even before the Indiana controversy.
Both
of those factors have combined to produce real confusion about the
Indiana law. Some people are not being straightforward about its
implications, whether because they are calculating, mortified, or—in the
case of opponents, some of whom have also been unclear about what the
law means—alarmed, but it also inhabits novel legal territory, so it is
genuinely hard to know what those implications would be. Governor Pence
has done much to muddle things even more. On Sunday, on “This Week,” George Stephanopoulos asked Pence
“a yes-or-no question” about whether “a florist in Indiana can now
refuse to serve a gay couple without fear of punishment.” He asked half a
dozen times, but never got an answer:
Pence: This is not about discrimination, this is about …
Stephanopoulos: But …
Pence: … empowering people …
Stephanopoulos: But let me try to pin you …
Pence: … government overreach here.
Stephanopoulos: … down here though. … It’s just a question, sir. Question, sir. Yes or no?
Pence: Well—well, this—there’s been shameless rhetoric about my state and about this law and about its intention all over the Internet. People are trying to make it about one particular issue. And now you’re doing that as well.
