As you may have noted, I have yet to write anything about the Religious Freedom Restoration Act (RFRA) debacle in Indiana last week. That’s probably because in the midst of the outrage, I felt a bit unsettled—for two reasons.
First, Indiana’s RFRA, timed when it was, was specifically about providing services for gay weddings. This is why the owners of Memories Pizza said they would serve gay people in their restaurant but not cater for gay weddings. In the past few years, evangelicals have begun to shift their battle from preventing gay marriages to ensuring that they are not required to participate in them. Evangelical publications are full of stories about that focus on this question: a Christian baker who shut down his business rather than be forced to provide a cake for a gay wedding, a photographer who was sued for declining to photograph a gay wedding, and so forth.
I mention this because I think it sometimes got lost in the conversation. Indiana’s RFRA was not about allowing people to put a “no gays” sign in a restaurant window. Instead, it was about ensuring that a Christian photographer would not be required to photograph a lesbian couple’s wedding, participating in something prohibited by their religion and thus violating their conscience. Why does this matter? Largely, I think, because if we are talking about discrimination writ large and evangelicals are talking about providing services for gay weddings, we are going to talk past each other.
Second, the focus on the RFRA obscured the reality that in most of Indiana, discrimination against gay people—in any area of life and for any reason—was (and is) completely legal. There is no law against discriminating against gay people in Indiana. It is against the law to discriminate based on race or religion, and so forth, but not based on sexual orientation or gender identity. In other words, in much of Indiana, it would be legal for a a person to put a “no gays” sign in their restaurant window—and this is as true today as it was two weeks ago. In fact, the fight over the RFRA never touched on this.
I’ve long felt that gay rights have advanced in a very odd way. In most of the U.S. today, it is legal for gay and lesbian individuals to marry. Yet in most of the U.S., it is still legal to fire someone for being gay or to evict someone for being transgender—or, yes, to put a “no gays” sign in a restaurant window. I’m sure there are a variety of reasons gay rights have proceeded in this lopsided way. The push for marriage has turned on images of gay couples with their children and elderly gay couples’ stories of decades of companionship, for instance. People seem to be more emotionally impacted when words like love or children are used, and I suspect that gives these stories more emotional pull than stories of people being fired or evicted for being gay or transgender.
But I suspect, too, that most people don’t know that in most of the country it is legal to discriminate against LGBT individuals. I found this suspicion confirmed while watching the controversy over Indiana’s RFRA. The outcry centered on fears that the RFRA would allow people to discriminate against LGBT individuals for religious reasons—in a state where discrimination against LGBT individuals, for any reason whatsoever, was already legal.
Some cities in Indiana, like Indianapolis or Bloomington, have local ordinances that prohibit discrimination against gay and lesbian individuals (in some cases these ordinances extend to transgender individuals as well). Thus it is illegal to deny service to a gay individual in Monroe County, but completely legal to deny service to a gay individual in next door Brown County. This is the case across most of the country, where one town may have a nondiscrimination ordinance but the next may not.
And that brings us to Arkansas. Perhaps the strangest thing for me, in the past week, has been the focus on Indiana after silence on Arkansas. In late February, the Arkansas legislature barred any city, county, or town from passing a law barring discrimination against LGBT individuals. To recap, it is now against state law for a city in Arkansas to ban discrimination against gay, lesbian, bisexual, or transgender individuals. Of course, Arkansas is not the only state to do this. Arizona did it last year. (It’s almost comical how quickly conservative states forget their emphasis on local control when municipalities start passing nondiscrimination ordinances.)
This needs to stop. We need a federal law extending civil rights protections to LGBT individuals. Of course, with Congress as dysfunctional as it is these days, this may be a while coming. Perhaps a court case could achieve the same goal, if it went far enough. But in reaching this goal, conversations about RFRAs that both ignore the distinction between providing any service whatsoever and providing services for gay weddings, and also ignore the fact that discrimination against gay people for any reason whatsoever is already legal in most of the country, are not helpful.
When passed today, RFRAs are meant to ensure that Christian bakers, etc., do not have to provide services for gay weddings in areas that have nondiscrimination ordinances. In other words, Indiana’s RFRA was aimed at Indianapolis, Bloomington, and other municipalities that have banned discrimination against LGTB individuals. The RFRA would have had no effect at all in the rest of the state, where such discrimination is already legal. And maybe that’s why the locus of public outrage bothered me. It’s like treating someone for measles while ignoring that they have cancer.
After a week of controversy and national outcry and a much-promoted legislative “fix,” do people know that in most of Indiana discrimination against gay people is (and has always been) legal? If not, I’m really not sure what we have to do to get the word out. But perhaps at least some are now aware of this. Perhaps this moment of controversy will draw attention to a larger national problem and grease the wheels to fix it. Perhaps people will be able to look beyond the focus on the RFRA and see that, in most of the country, the problem is much worse than they may have imagined.