It’s all about the cake.
In a frustratingly inconclusive Washington Post column today on Indiana’s religious-freedom law, Kathleen Parker writes, “Without diving into the weeds, the law aims to protect religious freedom against government action that abridges deeply held convictions.”
Trouble is, the weeds are exactly where we need to be. The public perception is that the law would discriminate against the LGBT community. Yet Indiana Gov. Mike Pence, who supports the legislation (though he now wants to add clarifying language), has insisted that it would not discriminate. For instance, Tony Cook and Tim Evans quote Pence in today’s Indianapolis Star as saying that the law “does not give anyone a license to deny services to gay and lesbian couples.”
For someone trying to follow this story, the problem appears to be two-fold. First, the law itself is vaguely worded and could be interpreted in a variety of different ways. Second, the media for the most part have covered this as a political story, more interested in traditional narratives about winners and losers than in what effect the law might actually have on people.
Bits of background emerge here and there. For instance, we’re regularly told that the Indiana law is similar (though not identical) to the Religious Freedom and Restoration Act, signed by Bill Clinton in 1993, and that 19 other states already have such laws on the books. We know that Arkansas is on the brink of joining those states. For the most part, though, coverage is framed in terms of pure politics.
My frustration spilled over this morning in reading the latest from The New York Times and The Washington Post. I don’t mean to single them out. It’s just that I’ve been thinking about this in recent days, and today’s coverage crystallized my sense that the public is not being as well-served by journalism as it could be.
The Times story, by Campbell Robertson and Richard Pérez-Peña, and the Post story, by Philip Rucker and Robert Costa, are mainly about politics. You learn a lot from both of them. The Post strikes me as particularly insightful, as Rucker and Costa observe in their lede that the controversy over the Indiana law “has drawn the entire field of Republican presidential contenders into the divisive culture wars, which badly damaged Mitt Romney in 2012 and which GOP leaders eagerly sought to avoid in the 2016 race.” The Post also notes that Pence may harbor presidential ambitions of his own.
But if you want to know what, exactly, the law would do, you’re out of luck, unless you want to latch onto Gov. Pence’s assurances that it won’t do much of anything (then why pass it?) or the warnings of civil-rights groups that it would legalize discrimination against sexual minorities.
Here is how I’d define what we need to know.
Does the Indiana law merely (for instance) prohibit the government from requiring a member of the clergy to perform same-sex marriages? No; the wording of the law makes it pretty clear that the door is open to actions that would go well beyond that. In any case, the clergy is already protected by the First Amendment.
So where does the law draw the line? What it comes down to, as Kathleen Parker and others have pointed out, is cake. Would the law allow a bakery to refuse to sell a wedding cake to a same-sex couple? And here is where the coverage has tended to devolve into a one-side-says-this/the-other-side-says-that morass.
Maybe the Indiana law is just too vague to provide a clear answer to that question. Nevertheless, I think German Lopez of Vox deserves a lot of credit for trying. In a lengthy article published on Tuesday, Lopez pulls together all known facts — the background, the threatened boycotts — and points out that, historically, laws such as Indiana’s have not been used to engage in the sort of discrimination LGBT advocates are worried about. (My favorite example involves the Amish, who were exempted from a law requiring them to put fluorescent lights on their buggies.)
Nevertheless, Lopez notes that supporters of the Indiana law have celebrated the idea that “Christian bakers, florists and photographers” would not have to “participate in a homosexual marriage!” So the intent to discriminate is clearly there. Countering that, though, is University of Illinois law professor Robin Wilson, who tells Lopez that it is unlikely the courts would uphold such discrimination. And yet, as Lopez observes, the U.S. Supreme Court’s Hobby Lobby decision raises the specter that Wilson’s sanguinity might prove unwarranted.
Of course, Vox’s self-styled mission is to explain. But I would argue that even a daily update in a developing story like this ought to explain as clearly as possible what the law is about, or at least link to such an explanation.
In his book “Informing the News,” Thomas E. Patterson writes that journalists need to add a third tool — knowledge — to their traditional tools of direct observation and interviews. In the case of Indiana, telling us what the religious-freedom law would actually do is at least as important as telling us what people are saying about it.
Note: If you find any particularly good explainers about the Indiana law, let me know and I’ll post links to them here. And here we go:
• This article, by Stephanie Wang of the Indianapolis Star, is quite good. (Thanks to Mike Stucka.)
• Here’s an explainer in Q&A form that’s in today’s Times. (Thanks to Kris Olson.)
• In the comments, Steve Stein flags this article by Kristine Guerra and Tim Evans of the Indy Star that explains the differences between federal and state law.
On Twitter, I got recommendations for several worthwhile pieces — one from the liberal website ThinkProgress and two from more conservative sources, The Weekly Standard and Commonweal:
https://twitter.com/dfdore/status/583285266254794752
@dankennedy_nu Peter Steinfels pointed to Douglas Laycock's analysis at @weeklystandard as a good RFRA primer: http://t.co/SwtgHNhq36
— Andrew Morse (@CAndrewMorse) April 1, 2015
@dankennedy_nu And, of course, Steinfels' thoughts themselves are worth reading: https://t.co/tXhxHzAeYU
— Andrew Morse (@CAndrewMorse) April 1, 2015
This commentary was also published at WGBHNews.org.
Photo (cc) by D&K and published under a Creative Commons license. Some rights reserved.
