Monday, March 30, 2015

Outrage in Indiana!

Despite What It Says, These Guys REALLY Care About Native American Rights!
Governor and presidential-maybe (although, today, The Omnivore's older dog is a GOP presidential-maybe) Mike Pence singed into law a bill that condemns gay people to gas chambers--or, at least, that's what you'd think from the response it has generated. What response? In addition to tons of Twitter and Facebook outrage, notably there has been backlash from the commercial sector. This includes:
Why So Serious?
Conservatives everywhere are, well, kind of shocked. After all, didn't Bill Clinton sign the first Religious Freedom Act in 1993 or something? These laws (IN's and several others) are based on that--so they should be just fine with the libs. Secondly, there's no gay anywhere in there. Go look--read the law--it doesn't say anything about gay people whatsoever ('No Homo' either).

They are right! A review of the bill found no reference to homosexual people in there--at all. And, indeed, Clinton (the one who can't run again) did sign a law that these acts are based on! This is a political slam dunk.

Except for a few things.

A Few Things
Firstly, while the text of the law has noting to say about gays or denying gay people business--and, indeed, it could be used to reinforce religious objections across a number of potential spectra, let's make no mistake: this is about gay rights.

Indiana is one of the states on the front-lines of the gay culture wars. They fought gay marriage in 2012 and 2014 (it was explicitly outlawed since 1986)--and this is just the next iteration. The "religious rights" protection is a shift in strategy: if it seems that gay marriage can happen, the attempt is to prevent wedding shops (and, erm, maybe others?) from having to participate.

The change in strategy is fairly canny--by modeling off the 1993 Religious Freedom Restoration Act. they are co--opting what was a liberal strategy to get the law out of, like, peyote ceremonies by native Americans. It's a kind of philosophical ju-jitsu, turning the other side's arguments against themselves.


Firstly there is the issue that what the native Americans in question were doing wasn't refusing anyone service. Secondly, the specific language of the Indiana law makes it clear that the defense is not against the Federal Government for individual people--but for private businesses against individual people. The idea that this is not a change or an insignificant change is not supportable (it begs** the "Why'd you pass it then?" question). It also goes substantially further in this direction than other current and similar laws (this link has some interesting analysis of this).

But what really (and always) interests the Omnivore is, of course, how people talk about the law.

How The Law Is Talked About
There are several different narratives in use about the Indiana law. Usually these are particularly loaded or have a specific blind-spot.

From The Left
The left is pretty consistent in its story:
  1. It allows businesses to discriminate against gays.
  2. It is like the laws that kept black people off lunch counters in the South.
  3. It does not have to do with religion so much as, erm, something like racism.
There are some problems with this. The first is that it most certainly does have to do with religion. The most charitable form is that participating creatively in a sin is, itself, a sin (that is: creatively baking a cake for a sinful marriage). In that formulation the person could be totally fine with gay people--even fine with gay marriage--so long as they do not participate

The (The Omnivore thinks more common) less charitable form of this is that being gay is either a sin--or means committing a sin if you do anything 'gay'--and the good Christian person doesn't like that and so they want nothing to do with it. 

Even dicier is the case where one believes that gayness is spiritually harmful and therefore should be either eradicated or banished. This is the case where gays should not eat at the restaurant because one's children will see the gays . . . and maybe catch it off one of them!

In any event, despite what Tim Cook says--or maybe would like us to believe he believes--this totally has to do with religion. For anyone keeping score, on a similar liberal talking point: so does ISIS.

Secondly, though, while not settled*** (we'll come back to that technical term), being gay is largely (today) seen as being innate. This means that to a lot of people discriminating against gays is like racism: it's treating someone differently based on their internal makeup rather than their decisions (arguing otherwise is sophistry). So, erm, yeah--discriminating against gays is not popular.

Finally, there's the business of business. Arguing that the law does not allow businesses to discriminate against gays is simply wrong. You can argue--and we'll see this below--that it only allows businesses to discriminate in very specific cases ("There is no religious objection to selling someone a hamburger"). While arguable (we'll argue it), the fact that this law does apply to protecting private businesses from private citizens. So if someone is worried about being discriminated against by a business person . . . well, this law is a point of concern.

From The Right
Keeping with the pattern we see today, the right has several different talking points about this law. Some of them are contradictory.
  1. It's just like what Clinton did--where was the outrage then!??
  2. It's not about gay people at all: persecution complex, much?
  3. Hey!! What happened to tolerance!?
  4. Wake UP, Sheeple! The Gays Are Coming.
As we've gone over, #1 is false--the language in the law expands the protections of the 1993 act. On the other hand, not everyone is so obvious. The Federalist gives us 10 People Helped Most By Religious Freedom Laws Like Indiana's. These are all religious minorities being oppressed by the Federal Government or a State Government when they are in prison. The problem with this article is that that law didn't help Christian bakers who were being oppressed by want-to-be-wedded-gays that wanted a cake.

It's a nice try--but it's obfuscatory.

The #2 item is mostly seen in the comments sections and is a 'what-do-you-take-me-for' line of argument. On the other hand, #3 gets some The Daily Signal dances with several of these--but it ends with an appeal to tolerance:
Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms. All Americans should remain free to believe and act in the public square based on their beliefs about marriage without fear of government penalty. 
It’s what true tolerance, pluralism and diversity require. Apple should give it a try.
This is an interesting position--but the concept of tolerance--much less pluralism and diversity--is generally not about refusal of services. The refusal of services is, itself, a form of intolerance and intolerance need not necessarily be tolerated in order to be tolerant [ citation needed ].

For #4, though, The Omnivore gives you this:
You can’t have it both ways. It is impossible to will a world where religious liberty is protected while endorsing a jurisprudence that describes opposition to gay marriage as animus. One side’s vision of public morality will win out. Conservatives and Republicans who think that religious liberty can exist in a world with same-sex marriage should be disabused of such utopic foolishness after this week's shameful and dishonest attempts by the media to quash Indiana's religious freedom bill. That’s the future of the debate about religious liberty in America.
This guy? This guy is basically right. Racist segregation laws, by dint of asymmetric moral plate-tectonics got to its end of public acceptance first. Unfortunately for Christian wedding people, the iconography of blacks kicked off lunch counters is already in the public's mind's eye. It isn't going away and clever analogies or nuanced defenses won't help with that.

Anti-Gay discrimination isn't racism--but even if you can convince someone of that (and mostly? You won't get the face time necessary) you also can't convince them it isn't as bad. After all, those black people could just have gone to another lunch counter that wanted them, right? The Omnivore is sure there was one in like New Hampshire or something.

The problem is that #4 is an honest argument and it also happens to be a losing one (and that, right there, reader, is why numbers 1-3 exist).

What The Omnivore Thinks
The biggest element of this conflict isn't the differing spin-zones or the intellectual unforced errors people are making--it's about who came out against this--and how quickly. Seriously? The advent of big e-businesses jumping into the fray like this is actually new. Imagine if Standard Oil had decided integration was a good thing back in 1950. What if the Pinkertons had decided that exploiting Chinese labor was a bad thing on the railroads?

Business--big business--holds levers of power that governments often only dream of. When they decide to get involved it's a huge deal. The Omnivore thinks a decisive one: Going up against Apple--whatever they sell--is risky business. This may well be a case where doing nothing would have been better than winning a victory--because it seems to have brought the war from an unexpected direction.

* On research, it turns out they make phones. So, kinda like Ericsson?
** ooookkkay, if you must: poses
*** The earth going around the sun isn't settled for some people. Today, in a political context, saying 'The Science Is Not Settled' is meaningless.

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