Yeah, we may need to fix this.

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Indiana's Religious Conservatives Surrender

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg View. He was executive editor of the Week. He was previously a national affairs writer for Rolling Stone, a communications consultant and a political media strategist.
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That was quick. Indiana legislators appear to be caving to pressure from businesses (and just about everyone else), and are preparing a "fix" to their religious-liberty law that will prohibit discrimination against gays and lesbians.

The original language allowed "a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened" to use that imposition as a legal defense. In other words, if you sue me for denying you service because I don't approve of your gay marriage, I can defend myself in court on religious grounds. Indiana Governor Mike Pence took pains to say that the law wouldn't condone discrimination. But no one was buying it. Ergo, the "fix."

Cultural conservatives interpret this as a case of world-class bullying. Some complain that the backlash to the law reveals that liberals just don't care about the sanctity of conservatives' religious views. Timothy Carney of the Washington Examiner seemed genuinely irate about liberal contempt:

Religious Freedom Restoration Acts have existed on the state and federal level for decades. What's new here -- the "wave" that's actually sweeping over the country -- is an emboldened and litigious cultural Left, unsated by its recent culture war victories, trying now to conscript the defeated soldiers at gunpoint. 

Minus the militarism, he has a point.

Many liberals simply refuse to take seriously religious opposition to the mainstreaming of homosexuality. There are reasons for that -- and they're generally pretty compelling.

First, history shows that such scruples tend to be impermanent features of religious faith. They are instead culturally sensitive and highly adaptable. Indeed, opposing gay marriage through a muddled, convoluted law is itself a massive retreat from what was once wholesale vilification of the gay "lifestyle." (Apparently you can keep your gay lifestyle now, you just can't mimic a conservative, straight one.)

Like other strictures once justified on grounds of religion -- against miscegenation or divorce, for example -- opposition to gay rights is growing increasingly marginalized. This evolution is not quite the challenge to religion that some contend: Many religious Americans -- Christians, Jews, Muslims, others -- have embraced gay rights, including gay marriage. Religious faith is not the common denominator of resistance to gay equality; cultural conservatism is. White mainline Protestants are three times as likely to favor gay marriage as white evangelical Protestants. That's not a Christianity gulf, it's a culture gulch, shaped partly by age, region, class, education and politics.

Second, the nature of the issue ensures that liberals will accept nothing less than total surrender.

This is not true on every political front. In fact, most issues allow room for compromise. Liberals are pretty sure, for example, that they've debunked much of supply-side economics. They would no doubt appreciate a public surrender (along with a surtax on millionaires). But many would still happily meet supply-siders halfway on tax rates. Even abortion, with all the stridency evident on both sides, provides middle ground.

Gay rights is different. The most compelling argument in its favor rests on a (religiously inspired) belief in the universality of human dignity. Consequently, there is little ground for compromise: Either gays and lesbians share in society's full measure of dignity, or the battle for gay rights continues.

This would be true regardless of the practical implications of the Indiana law, which are probably minimal. Expressions of civility, and the pursuit of profit, are powerful norms. Instances of the wedding-cake baker who refuses to bake a gay cake -- or gay customers who nonetheless insist on it -- are less common.

The legal force of the law (and its Arkansas twin, which suddenly entered political limbo after the avalanche of criticism and boycott threats landed on Indiana) has been difficult to parse precisely because the law's discriminatory aims are more implied than stated. More than anything, the law came across as yet another symbolic yelp from conservatives who perceive themselves under siege. It put the state of Indiana on record as a land that frowns, not-quite-overtly, on gays and lesbians. And it supports your right to frown, too. What happens after that -- how far private citizens and businesses can go in making their displeasure manifest -- has never been clear.  

As gay rights conquers ever larger swaths of popular culture (Nascar, folks) its champions grow more confident of total victory. "Religious liberty is the terms of surrender the Right is requesting in the culture war," Carney wrote. But liberals are not interested in negotiating a surrender on gay rights. They are on the cultural equivalent of Sherman's March. They will halt when they reach the sea. As it happens, much of the country is already there, wading in the water.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor on this story:
Zara Kessler at zkessler@bloomberg.net