Mike Pence admits that the First Amendment is fine all by itself

Yesterday, Mike Pence announced that he will seek a “fix” to Indiana’s recently-passed Religious Freedom Restoration Act to clarify that the law “does not give businesses the right to deny services to anyone” — presumably including members of the LGBT community.

While he refused to elaborate on what the language of the fix will look like, that’s still a significant walkback from his Sunday appearance on This Week with George Stephanopoulos, where Pence insisted that he would not seek changes to the law.

Pressure from corporate America, fueled by shifting public opinion, played a major role in Pence’s decision to seek a fix to the bill. It’s no coincidence that he asked Indiana’s legislature to act by the end of the week: NCAA Basketball’s Final Four tips off in Indianapolis on Saturday, and the organization’s President, Mark Emmert, has come out against the RFRA .

In between Sunday’s interview and yesterday’s press conference, Governor Pence has been dragged, kicking and screaming, into agreeing with the basic outline of the First Amendment to our Constitution:

You can believe whatever you want, and you can practice those beliefs as long as they don’t interfere with anyone else.

But don’t tell that to the the conservatives who are itching to codify religious privileges. To The National Review‘s Quin Hillyer, Pence’s nominal reaffirmation of the First Amendment constituted “craven capitulation” that would make him “unworthy of the presidency” if decided to throw his hat in the 2016 GOP primary.

What seems to have been lost in the debate over Indiana’s — and now Arkansas’ — Religious Freedom “Restoration” Acts is that religious freedom in America isn’t under attack, and doesn’t need to be “restored.” Proponents such as Pence and Jeb Bush claim that all Indiana’s RFRA does is ensure that the state cannot unnecessarily infringe on the free exercise of religion because, according to them, it currently can. On this point, they’re simply wrong: Those protections have existed on the federal level for centuries.

If all a law does is restate the First Amendment, then it adds nothing to the First Amendment. If a law is seeking religious privileges that go beyond the First Amendment, then chances are it violates the First Amendment.

Religious conservatives seem to have confused an erosion of religious privilege with an assault on religious freedom. As the Wall Street Journal’s editorial page argued on Monday, without Indiana’s law:

Amish horse-drawn buggies could be required to abide by local traffic regulations. Churches could be prohibited from feeding the homeless under local sanitation codes. The state Attorney General even ruled Indiana Wesleyan University, a Christian college which hires on the basis of religion, ineligible for state workforce training grants.

Legally reaffirming private religious freedom changes none of these outcomes. Despite whatever religious beliefs they may (deeply) hold, the Amish still need to stop at stop signs, food kitchens still need to wash their dishes and religious colleges can’t use taxpayer money to hire based on the religion of their applicants.

Exemptions from these regulations aren’t “freedoms” that have been taken away and need to be restored; they are religious expressions that infringe on public, secular interests. They do not deserve special protections, and any law designed to carve out space for religious privilege is patently unconstitutional.

Mike Pence caricature, via DonkeyHotey / Flickr

Mike Pence caricature, via DonkeyHotey / Flickr

But it isn’t really about what the letter of the law says. What religious conservatives are really worried about is the fact that their social privilege is waning, regardless as to whatever political privilege they think they deserve. And on this point, they may be on to something, but they aren’t making the point they think they’re making. As Josh Marshall noted last night:

Apologists for the Indiana law are out guffawing and saying how Bill Clinton and Barack Obama and half the states in the country and even the federal government all supported or have the same laws (largely false) and that it’s a pure calumny to claim the law is intended or can make it possible to discriminate against gays and lesbians. But this is winning by losing. Because every restatement of this argument – even if it’s largely bogus – drives home the argument that any form of discrimination against gays and lesbians is literally indefensible, even allowing people with socially conservative social values to discriminate because of “religious liberty.” Even claiming anyone thinks that is apparently now an affront. In other words, even the tactical wordplay and verbal jujitsu amounts to conceding a major strategic defeat.

The gay culture war in America is ending, and conservatives are losing. When large, conservative corporations from Angie’s List to Wal-Mart recognize that not only is discrimination bad business, but that anti-discrimination is great PR, it’s a clear sign that it’s time for religious conservatives to pack up their Bibles and practice their faith in the privacy of their own homes. They won’t have to worry about the rest of us keeping them from doing so.

America was founded on the basis of protecting religious belief, but to the extent that religious belief comes into conflict with civil society — and it often does — civil society has to maintain priority. As Jefferson understood centuries ago, that’s the only way to guarantee religious freedom for everyone, as opposed to whichever sect was the loudest or most powerful.

That principle works; it does not need updating. Good on Mike Pence for at least saying that he’s come around.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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18 Responses to “Mike Pence admits that the First Amendment is fine all by itself”

  1. tommy5677 says:

    Whatever Pence does it’s too little too late. It changes nothing, including the fact that Indianans voted this Bozo into office. It’s a state of hate filled religion crazed morons who are unworthy of a single cent of my money.

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  5. Indigo says:

    Rewriting the First Amendment has turned into the latest Fundie pass-time. Feeding the poor, housing the homeless, tending to the sick are not to their taste. But rewriting established laws into hate agendas fits their theological posture. They need something our social structure is not providing, I’m not sure what that is. Mental health care, possibly?

  6. StealthVoter says:

    I am asking a meaningful question to illustrate that there are many ramifications to such laws. And you responded with a personal attack that does not address any of the points I raised. I assume you are an intelligent and reasonable person. Therefore, your off-topic insulting response indicates to me that you are in intellectual agreement with my point but it upsets you emotionally.

  7. rmthunter says:

    Amanda Marcotte made a telling comment in a piece on how the right has inverted the idea of “religious liberty” — historically, we managed by everyone “staying in his own lane” — believe what you want, but when you try to impose those beliefs on others, you’re over the line. The religious right wants the whole road, and Pence was more than willing to give it to them, until he got caught. And he did get caught — he and the legislature thought they would just zip this one through with little fuss, the same way the other state laws have happened, but the country reached a tipping point on RFRAs, and Indiana’s is the most extreme. And now he’s trying to weasel out of it anyway he can, even if it means he’s forced to do the right thing and make sure the law cannot be used as a basis for discrimination.

    And it’s worth noting that the governor of Arkansas has sent their bill back to the legislature to be “fixed” (and one could hope that the term would mean “neutered” in this case), and the Georgia legislature has tabled its bill in the face of an amendment specifying that it could not be used to discriminate. Sometimes the backlash is so severe that even Republicans have to noticed.

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  9. benb says:

    Spoken like a self-entitled, straight, white, conservative (nominally) “Christian” guy who cowardly faults the “The Liberal Media” in a desperate attempt to deflect the blame from his own stupid actions. Takes balls to admit a mistake…which explains why Fox News never does.

  10. BeccaM says:

    Trolling again, huh?

  11. mirth says:

    Based on your commenting history, here’s a hypothetical situation for you:

    A homophobic, anti-semitic, misogynist, fundy conservative dumbass writes inane comments on a progressive blog edited by someone whose beliefs s/he does not like and whose liberal commenters s/he consistently disagrees with and regularly insults.

    Do I sue him/her just on general principles or thank him/her for their blog income-enhancing page clicks?

  12. StealthVoter says:

    Here’s a hypothetical situation to illustrate the purpose and/or problems caused by such laws. There is a Muslim-owned butcher, that offers a service where they will butcher livestock brought to them by ranchers. I bring a hog to them and try to hire them to butcher it for me. They will refuse, on religious grounds. Their religious beliefs won’t let them butcher the hog. Can I sue them?

    Here’s another one. I sell t-shirts at street fairs. I go to a gay-owned t-shirt printing company and ask them to print t-shirts that say “God Bless Traditional Marriage.” They refuse to print the t-shirts. Would I be justified in suing them?

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  14. BeccaM says:

    The natural instinct of a politician when faced with a situation like this, when his and his party’s naked pandering to the most far-right extreme elements is revealed to be disgusting, unfair and gratuitous is to flood the media with meaningless words in the hope it’ll all go away in a news cycle or two.

    I agree with you, Fixer. Pence hasn’t come around. The difference between the Federal (and nearly every previously existing state-level) RFRA is those laws were all in response to a SCOTUS overreach decision penned for the majority by Scalia. That case was about a Native American group that wanted to use peyote in its ceremonies. Because as always Scalia was more interested in the outcome than the repercussions, his decision basically said the Feds could do whatever the hell they wanted in terms of restricting (or ‘burdening’) the free exercise of religion. The Christianists cried bloody murder, so Congress quickly passed the RFRA which stated the government could not unduly burden someone’s free exercise of religion without a compelling reason. This left “using illegal drugs in ceremonies” in the banned territory, and likewise human sacrifice or polygamy…but did make it so that the military, for example, could not kick someone out for being a Wiccan or Muslim.

    These new laws aren’t even apples and oranges; they’re more like comparing apples to computers: The only thing they truly share in common is the name. Indiana’s law (and similar ones being proposed in wingnut states around the country) takes an individual’s practice of religion and lets them impose it on others, thus breaking the “your right to swing your fist ends at my nose” standard, as well as demolishing any walls between church and state or religious vs secular rights.

    Anyway, I know I’m preachin’ to the choir here…

  15. BeccaM says:

    Discrimination against LGBT people, and by extension anybody else the fundamentalists disapprove of. Like I keep saying, this law provides cover if a doctor or pharmacist doesn’t want to prescribe contraceptives or allow ‘Plan B’ to be used or sold. A landlord could refuse to rent to an unmarried couple or to an unwed mother. A shopkeeper could demand that all customers remove their head-coverings, including Jews, Sikhs, and Muslims.

    But yeah, the primary targets are and always were intended to be LGBTs.

  16. nicho says:

    There’s nothing to “fix.” The law is fundamentally flawed at its core. It was designed solely to allow discrimination against LGBT people — nothing more, nothing less. Trying to “fix” it will, at best, end up with a stupid and meaningless law on the books, or at worst, making things worse. Just repeal it, forget the whole thing ever happened, and go on with what you were supposed to be doing — running the goddam state.

  17. The_Fixer says:

    I enjoyed reading this article, and agree.

    Jon, you may be giving Pence more credit than is due, however. I don’t think that he’s truly “come around.” He’s trying to, through a series of statements carefully crafted from weasel words, take the heat off of him and his state. If acceptable clarifications are written into an amended version of the law, it will be simply to “shut people up” and keep from losing a lot of business (and the opportunity to raise campaign funds, I might add).

    In the end, if the right thing is done, we’ll all be better for it, of course. But it won’t be because Pence has had a change of heart. It’ll be simply because he bowed to immense pressure.

    This whole episode, and ones like it, are a sad reminder that money talks. I find it sad that people get far more attentive when money is at stake.

    The RFRA, in an acceptable form, would really be nothing more than a restatement of the U.S. Constitution’s First Amendment. As such, it’s superfluous – a “junk law.”

  18. petewestcentral says:

    Pence said he wants new wording. The new wording should be, “Repeal the damn law.”

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