Ann Rostow: Mike Mike Mike Mike

By Ann Rostow

Mike Mike Mike Mike

The reaction to Indiana’s Religious Freedom Restoration Act has been heartwarming to all of us true believ­ers in the vibrant and colorful world of LGBT activism. After a total meltdown of national outrage, Indiana Governor Mike Pence said on Tuesday, March 31, that the state legislature would shortly find a way to “clarify” a bill, which for all intents and purposes appeared to sanction discrimination against gay and lesbian customers. Who knows what that means, but at the very least it’s a step back from the thinly disguised animosity that characterizes our com­munity’s relationship with the state leg­islature.

It’s hardly news that the GLBT commu­nity is confronting a backlash against our recent success in the fight for mar­riage. We’ve all been reading and writ­ing about it. We’ve seen the court cases, Groovy Gay Guys v Big Bad Bakers, Lovely Lesbians v Dastardly Dress De­signers, Same-sex Sweethearts v. Insidi­ous Inn Keepers. We’ve covered the an­tigay legislative attacks, including near misses on “religious freedom” bills in Kansas and Arizona, and nasty debates throughout the south.

So why the national explosion over Indiana’s new RFRA, or RiffRaff as I like to call it? Is it really that much worse than the antics in other states? Isn’t this law similar to something Mis­sissippi passed a year ago? That wasn’t such a big deal. Isn’t it about the same as the other 19 state RiffRaffs, and the federal version that passed in 1993? Those haven’t done that much damage to our community, have they?

Most importantly, given that Indiana does not protect gays and lesbians against discrimination on a statewide basis, why does this law matter at all? Technically, most Hoosier businesses are perfectly free to discriminate against gays and lesbians already. Not to belabor the point, but it’s worth re­membering that every single court case against Christian business owners has been won by our side for one simple rea­son. Every one of those cases has been filed in a state that outlaws discrimina­tion based on sexual orientation, which is why the violations were cited in the first place! If, on the other hand, you’re doing business in a state, or community, that does not ban gay bias, you can dis­criminate to your heart’s content.

So what gives? Corporations are pull­ing out of the state, newspapers are out­raged, op-eds abound, the Governor can’t cope, conventions are canceling, Charles Barkley wants the Final Four moved out of Indiana! NASCAR’s all mad. Why is this happening?

In my opinion, it’s because the (dimin­ishing) antigay far right has a problem. It’s no longer okay to despise gay men and lesbians. They can’t tag us as per­verts. They can’t hate us. They can’t call us evil. They have been backed into a corner that allows them very little freedom of movement. The only explanation for an antigay attitude that still survives public examination in this day and age is a devout adherence to traditional Christian beliefs. Further, even a religious preference for hetero­sexual families must be expressed with respect for people who disagree, and with a general acknowledgement of the humanity of the GLBT community.

But even this last bulwark against an increasingly gay friendly America is weakening. People don’t believe it any­more. There are plenty of Christians who like and respect gay men and women. There’s no scriptural impera­tive that says businesses shouldn’t serve gays. Indeed, I think there are quite a few paragraphs about kindliness, not judging, being neighborly, and so forth. If you’re still spouting Bible-based anti­gay rhetoric in 2015, you’re not fooling many people. You’re a bigot.

So basically, Indiana lawmakers just in­advertently announced to the rest of the country that they support bigotry and the country just gave them a national thumbs down.

Everyone agrees that—as a general rule— the government has no business interfering with your ability to practice your faith. But if your faith requires you to drive a hundred miles an hour through residential streets, we make an exception because the government has a compelling interest in road safety. Likewise, most people agree that the government has a strong interest in making sure that the public square is equally accessible to all citizens. That means stores, jobs, housing, restau­rants. Is guaranteeing that equality a compelling interest? Where racial bias is concerned, the answer is yes. Where sexual orientation is concerned, the an­swer has been maybe yes, maybe no.

But increasingly, the answer is also yes. Increasingly, the notion that religion might dictate antigay prejudice is as dubious as the concept of faith-based racism. And this growing consensus is the driving force behind the outrage over Indiana’s “religious freedom” law.

Really? America is asking. Religious freedom? The Constitution isn’t good enough for you? What’s behind all this? And for all his hemming and hawing, Indiana governor Mike Pence can’t hide the fact that the two men stand­ing directly behind him, looking over his left and right shoulder during the March 26 signing ceremony, were Indi­ana’s top two antigay activists.

Business As Usual (Not)

Cycling back to some of the questions we were asking at the start of this col­umn, the main answer is yes, Indiana’s law is, in fact, significantly different from its predecessors.

Mississippi’s 2014 RiffRaff was a straight forward copy of the older ones around the country, and keep in mind, the Mississippi law only passed after it was revised to get rid of the most egre­gious antigay implications. The revised version obliged the government to prove that a law that burdens someone’s faith is narrowly tailored to serve a compelling interest. I guess that’s okay.

After all, the whole point of these laws was to protect individual liberty, and indeed one of the main advocates of the 1993 federal version was the American Civil Liberties Union. Should a Native American be allowed to use peyote in a ritual? Should a Muslim prisoner be allowed to grow a beard? Should an Amish buggy driver have to use a light at night? These are the usual suspects for a RiffRaff case, hapless individuals struggling in good conscience against the indifference of a powerful state and its one-size-fits-all mandates.

Oh. But then there was Hobby Lobby, a for-profit corporation that decided to strip female employees of federally mandated insurance for contraception. Surely this religious freedom law wasn’t intended to help a large employer mess around with staff benefits!

Well, you know the end of that story. The gay community was outraged by last year’s High Court Hobby Lobby rul­ing, in large part because it elevated the self-identified religious proscriptions of businesses to an exalted constitutional status. What was to stop other for-profit Christian businesses from indulging in antigay policies based on faith? The an­swer, as we’ve said before, is that the only thing that can prevent such abuses are laws against LGBT discrimination. Not only does Indiana lack such a law, but also lawmakers expressly rejected gay protections during the debate on the RiffRaff. They knew exactly what they were doing.

Taking their cue from the Hobby Lobby ruling, Indiana lawmakers made clear that the RiffRaff didn’t simply protect individuals from government, but also included businesses in the definition of “persons,” and then protected these businesses from individuals, a ridicu­lous role reversal. Moreover, the Indi­ana law does not even require that the government be involved in a violation. Bear with me and read this section:

“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a viola­tion of this chapter may assert the viola­tion or impending violation as a claim or defense in a judicial or administra­tive proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the govern­mental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.”

Hmmm. What, beyond some state pol­icy, could possibly burden a “person’s” faith? How about a gay customer who won’t go away? Note that if the gay cus­tomer, who may be likely to burden the idiosyncratic faith of a business owner, decides to complain about service, the government has an “unconditional” right to intervene. Did I mention that the winner of a RiffRaff claim might get money damages plus court costs and legal fees?

“Tolerance is a two-way street,” Mike Pence said on Sunday March 29, be­moaning the “avalanche of intolerance that has been poured on our state,” in the aftermath of the law’s passage.

Okay. If we’re the ones sending intoler­ance down one side of the street, who exactly is sending tolerance down the other side? Indiana? Or are we sup­posed to tolerate a law that allows antigay discrimination in order to be rewarded with tolerance from, whom exactly? In other words, what the Hell is Mike Pence talking about? I don’t even disagree; he’s just incoherent, and that bugs me.

And a Genius Will Lead Us

Sound a loud trumpet blast. Mary Bonauto has been named to argue our main case before the U.S. Supreme Court on April 28. If Evan Wolfson is the Godfather of marriage equality, Bonauto is its Godmother, the author and winner of seminal marriage cases in Vermont and Massachusetts and the strategist responsible for our attack on the Defense of Marriage Act. Bonauto, the top civil rights lawyer for the New England-based Gay and Lesbian Ad­vocates and Defenders (GLAD), filed the first DOMA challenge and won the first appellate court victory against the law. Eventually, the High Court picked a different DOMA case to re­view, striking down the law’s main sec­tion, but Bonauto was instrumental in its downfall.

Bonauto, who has ties to the Michigan case, was selected by a group of GLBT lawyers involved in the four cases now pending before the Supreme Court. While Bonauto will argue the main question of whether or not the Con­stitution mandates marriage equality, a second lawyer, Douglas Hallward- Driemeier, was selected to argue the subsidiary issue of whether or not states must recognize legal marriages from elsewhere. The Court will hear 90 min­utes on the main issue, and one hour on the side question.

I gather from the L.A. Times that all the lawyers from these four cases wanted to argue for 15 minutes each, or something like that. Come on, you grandstand­ers! Thankfully, the Court told them to pick two lawyers, as did the states on the other side of the cases. Arguing against Bonauto will be former Michi­gan solicitor general John Bursch, while Tennessee associate solicitor general Jo­seph Whalen will take on Hallward- Driemeier. Hallward-Driemeier, for the record, is a former assistant solicitor general who has argued several cases before the High Court.

We can’t get any better than Bonauto, who is calm, collected, brilliant and warm. She recently won a genius Ma­cArthur Fellowship, which I think is up to something like $650,000. It couldn’t have happened to a nicer person.

Sam’s Club

Now what? Just a couple of lines left, not enough space to launch into a big new topic, but far too much to leave blank.

Did you read that Michael Sam said he met a number of closeted gay foot­ball players during his brief stint in the NFL? He even said that some famous names might be secret members of the club. You know, I don’t have much sym­pathy for closeted adults at this stage in our movement. But if it’s going to cost you eight figures, I might give you a gay break. Yes, it would be courageous to be the first active superstar to come out. On the other hand, if I were in that po­sition I might just stay private for a few more years. Ka ching, ka ching.

But now that I think about it, it would be the great athlete who would have less to lose, right? It’s the journeyman who gets benched or traded. So come out, guys!

arostow@aol.com