Consider how things have advanced:
1. Before the Indiana RFRA, gays were not in a protected category under state law and had zero legal recourse if denied service in a restaurant or the services of a wedding singer, baker, florist, etc. Under First Amendment doctrine, a minister and likely other wedding service providers could not be compelled to participate in a ceremony to which they had genuine religious objections.
2. RFRA set out to fix a problem that largely did not exist with regard to gays (who were the object of the supporters’ concerns), but supporters waded in nevertheless.
3. Once the law hit, together with the additional provision that the religious defense applied in private suits, the hypotheticals started flying. Gov. Mike Pence was accused of trying to give businesses leeway to discriminate — that is, to deny service to gays. He then came out with a bold and unequivocal statement in support of nondiscrimination:
I don’t support discrimination against anyone. The question that you pose, though, I believe — it’s — we’re dealing here, in a free society, with always a careful balancing of interests. and the facts and circumstances of each case determines the outcome. What this legislation dos, what it did when President Clinton signed it into law in 1993, and what it serves in some 30 states where it’s been the law, is provide a framework for determining whether or not government action puts a substantial burden on person’s religious liberty. Now it’s counterbalanced against whether there is a compelling interest. The first question is, in any case: does the government action place a substantial burden on the free exercise of religion under this standard as it has been applied for decades. The second question is, is there a compelling state interest? And what courts have found without exception in the past twenty-plus years, is that the state has a compelling interest in combating discrimination, and I support that interpretation.
4. If he means that and that interpretation is set in concrete by law (either by tweaking the RFRA or by including gays in the state’s nondiscrimination laws), gays in Indiana will be in a much stronger legal position to demand service. Christians will be left with a weak RFRA defense since such laws generally have not been determined to justify workplace or accommodation discrimination.
So the proponents set out to solve a problem that largely did not exist, with a solution that was not going to work anyway and wound up empowering people whom they set out to restrict in some fashion. In short, they messed up, whatever your view of the merits of what they are trying to accomplish.
As to this, Walker said: It’s up to Wisconsin to figure out. Instead, he kept things sufficiently vague. (“As a matter of principle, Gov. Walker believes in broad religious freedom and the right for Americans to exercise their religion and act on their conscience,” a spokesman said.)
Smart move and good political instincts, that fellow.