Pence wouldn’t characterize it that way, of course. He’d say (and did say, about a hundred times) that nothing in the law gave anyone a license to discriminate, and the new legislation would merely make that explicit. But no matter how many times he said it, that was indeed what the law would likely have done. That issue is somewhat complicated and has to do with the conflict between this law and local ordinances in some places in Indiana (I discussed that at some length yesterday). But certain aspects of the law, including the fact that it specifically applies to for-profit businesses and disputes between individuals (unlike the federal Religious Freedom Restoration Act) made it all but certain that eventually we’d get cases in Indiana in which people were claiming to discriminate against gays. And if the law stood as it was, they probably would have prevailed.
But the pressure Pence got from people both within Indiana and around the country has essentially forced him to be true to his word. Up until now, Pence has been saying that the law was not intended to give businesses in Indiana the right to discriminate against gay people. Now he’s saying that he wants to put that explicitly within the law itself. That’s a huge win for gay people who don’t want to be discriminated against, and makes it more likely that the next state that passes a law like this one — and there are similar bills pending in multiple states — will include a similar clarification.
Not only that, Pence went so far as to say, “No one should be harassed or mistreated because of who they are, who they love or what they believe. I believe it with all my heart.” The “who they love” part is not the kind of language one usually hears about LGBT people from Republicans, particularly those as conservative as Pence.
Nevertheless, what’s important isn’t what Mike Pence believes in his heart. He wrote in an op-ed this morning in the Wall Street Journal: “If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.” But he isn’t a restaurant critic, he’s a governor, and the real question is what kind of laws he’ll advocate and sign. Now he seems to have answered that question, at least in part: he says he’s going to sign a law that won’t legalize just that kind of discrimination.
What he won’t do, however, is sign a law outlawing that kind of discrimination. So if this “clarification” is what he says it will be, the state will revert to the status quo: where there are local ordinances in Indiana forbidding discrimination against gay people, as there are in Indianapolis and other places, that kind of discrimination will continue to be illegal. Every place else, it will still be legal.
Now let’s be honest: there’s a very particular context in which the Indiana law was passed. It’s part of a movement among conservatives to expand the notion of “religious freedom” beyond how you worship and your own conduct to the interactions religious people have with other people, particularly in the realm of commerce. Many conservatives want religious people to have a set of special rights that allows them to claim an exemption to certain laws because of their religious beliefs. Those exemptions would not be available to people who wanted to do the same thing but justified it on the basis of a non-religious philosophy, or just their opinions.
What we all need to acknowledge is that the place where these laws really get tested involves zero-sum conflicts where there is going to be a winner and a loser: the florist doesn’t want to make flowers for the same-sex wedding, and the couple wants to be treated equally. One side is going to prevail (I discussed this in greater detail here). Liberals know exactly where they stand on those cases, but some conservatives want to pretend they’re irrelevant. The Indiana controversy may show that when even a staunch conservative is forced to confront the implications of the laws Republicans would pass, he feels like he has no choice but to shuffle a few steps to the left.