Yesterday, in this post, I wondered why Indiana's "religious freedom" law was getting such strong blowback from all quarters. Josh Marshall has an insight that pretty much mirrors one of my own possible reasons:
He has some interesting ideas on what caused this particular backlash at this particular time:
It's the second thing that worries me: the Supreme Court is a random factor when it comes to "religious freedom" these days, and I think any argument that is going to persuade the Court to overturn these RFRAs is going to have to be very carefully crafted. Most judges have held that non-discrimination laws embody a compelling government interest, which ordinarily would override the assertion that individual religious beliefs deserve pride of place. The Roberts Court, however, has not been notably assiduous in protecting individual rights, and have tended to side with the states on things like the Voting Rights Act and DOMA -- which, of course, means that the Court can jump in either direction on "religious liberty" laws.
The strength of the backlash in the case of Indiana is indicative of the "tipping point" idea: Tim Cook of Apple, Inc., has been quite vocal in his broad condemnation of these laws. Jeremy Stoppelman, CEO of Yelp, has stated point-blank that the company will expand only in states that do not entertain such laws. These are only the first two (well, there's also the White House, which, although focused on Indiana, implies that this is not a good thing in general), but I suspect that idea is going to gain momentum. What's noteworthy is that their reaction is not limited to Indiana.
Arkansas is poised to enact a similar law; the bill in Georgia was scrapped after it became obvious that the whole point was discriminatory.
Do I see a trend here?
But all of this seems to miss the point. There are tipping point moments in which things that were once uncontroversial or unpunished suddenly become very controversial and bring in their wake a storm of backlash. What's most interesting is how these changes are often not incremental. They build slowly and then suddenly the terms are entirely different. It's not surprising that something like this would eventually happen. But just why it happened in this case and in this way is less than clear.
He has some interesting ideas on what caused this particular backlash at this particular time:
Two things have changed. In the last eighteen months, social conservatives have recognized that they've lost the public battle over gay rights. Marriage equality will almost certainly be the law of the land nationwide in the near future. And the rulings that set the stage for that change will likely knock down all remaining legally sanctioned discrimination against gays and lesbians in the coming years. So social conservatives have retreated to a defensive action of accepting legally sanctioned equality but trying to create a carve out of discrimination under the guise of 'religious liberty.' The second thing is Hobby Lobby and that the signal that the Supreme Court will accept a concept of religious liberty far more expansive than anything seen in the past.
It's the second thing that worries me: the Supreme Court is a random factor when it comes to "religious freedom" these days, and I think any argument that is going to persuade the Court to overturn these RFRAs is going to have to be very carefully crafted. Most judges have held that non-discrimination laws embody a compelling government interest, which ordinarily would override the assertion that individual religious beliefs deserve pride of place. The Roberts Court, however, has not been notably assiduous in protecting individual rights, and have tended to side with the states on things like the Voting Rights Act and DOMA -- which, of course, means that the Court can jump in either direction on "religious liberty" laws.
The strength of the backlash in the case of Indiana is indicative of the "tipping point" idea: Tim Cook of Apple, Inc., has been quite vocal in his broad condemnation of these laws. Jeremy Stoppelman, CEO of Yelp, has stated point-blank that the company will expand only in states that do not entertain such laws. These are only the first two (well, there's also the White House, which, although focused on Indiana, implies that this is not a good thing in general), but I suspect that idea is going to gain momentum. What's noteworthy is that their reaction is not limited to Indiana.
Arkansas is poised to enact a similar law; the bill in Georgia was scrapped after it became obvious that the whole point was discriminatory.
Do I see a trend here?
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