Tuesday, March 31, 2015

Does It Matter Whether Jeb Bush Is Pandering or Sincere?

by Neil H. Buchanan

A national controversy has erupted over Indiana's recent adoption of a state-level version of the Religious Freedom Restoration Act (RFRA).  Apple CEO Tim Cook, who recently came out as gay, wrote an impassioned op-ed in The Washington Post, describing the Indiana law as part of a "wave of legislation" nationwide that "would allow people to discriminate against their neighbors."  Cook described the law (and a similar one in Arkansas) as "say[ing] individuals can cite their personal religious beliefs to refuse service to a customer or resist a state nondiscrimination law."

The political comedian Andy Borowitz has been especially strong on this issue, penning fake news reports with the headlines "Indiana Defines Stupidity as Religion" and "Indiana Governor Stunned by How Many People Seem to Have Gay Friends."  The defensive response from Governor Mike Pence and his supporters has amounted to the claim that "there's nothing to see here," asserting that this is merely a law that would protect religious belief from intrusion by the state.

The satire just keeps coming, however, as The Onion published "Indiana Governor Insists New Law Has Nothing To Do With Thing It Explicitly Intended To Do," which concluded with a mock quote from Pence: " 'I want to reassure Hoosiers of all backgrounds that this law will never be interpreted in the way it was unambiguously designed to be from the very beginning.'  Pence further clarified that the act’s sole purpose was in fact to safeguard the free exercise of religion it was in no way whatsoever created to protect."

Pence, moreover, could not help but somehow try to connect this to the Affordable Care Act, which he claims "renewed concerns about government infringement on deeply held religious beliefs."  Given that the infamous Hobby Lobby decision should have put any such fears to rest (no matter how ridiculous or insincere those fears might have been), it is hard to see how this is anything but an "Obamacare tic," a default move by Republicans to somehow connect everything to a law that they are sure everyone hates (but is actually working quite well).

It is clear that Indiana's new law (and others like it now under consideration in Republican-led states nationwide) is designed to do something, and that something is quite obviously to provide business owners with legal cover to refuse to serve gay people.  It is heartening to see the strong national reaction against the Indiana law, with businesses and other groups (including the NCAA, which is based in Indianapolis) coming out strongly against Pence and his disingenuous defense of the law.

In the remainder of this post, I want to focus on the reaction among Republican politicians, in particular soon-to-be-presidential-candidate Jeb Bush, to the Indiana controversy.  Bush, of course, is the supposed moderate in the race, and he is apparently trying to win the nomination not by pandering to the seething right-wing base of his party (contrary to Scott Walker, Ted Cruz, and in fact almost every other potential candidate) but rather by expanding the range of people to whom his party could appeal.

A month or so ago, Linda Greenhouse wrote about how establishment Republicans have been privately happy that gay marriage is becoming politically passé, and that they are in fact looking forward to the Supreme Court's inevitable decision later this Spring in favor of same-sex marriage.  The thinking, apparently, is that Republican politicians can still, when necessary, mutter a few negative comments about activist courts and the sanctity of marriage, even as they are privately delighted that Republicans will not have to be publicly on the wrong side of history for much longer.  The thought is that the party can then begin to appeal to young people on other issues (although I honestly cannot figure out what those issues would be), as the old white people who constitute the party's base move on to their reward.

Greenhouse was incredulous: "You have to admire the chutzpah of party operatives whose national platform calls for limiting marriage to opposite-sex couples, and for whom denouncing 'judicial activism' is usually as natural as saluting the flag, lining up right behind the justices who they hope will relieve them of the pesky problem of choosing sides in a fast-fading culture war."

The point of Greenhouse's column, however, was that these Republican leaders were dreaming if they really thought that gay rights issues would fade away, because it was already clear that the crazy base was hard at work.  She described the Elane Photography case as "just the leading edge of a pipeline’s worth of cases in which florists, bakers and owners of wedding venues are invoking claims of conscience to shield them from having to do business with gay men and lesbians."

At this point, no one can predict just how far the crazies will push this issue and others like it.  And national Republicans will not be able to ignore what is going on.  As Greenhouse put it: "[I]t’s safe to predict that politicians will be confronting these issues under the glare of a public spotlight.  Republicans who expect the Supreme Court to give them a pass from having to take a stand are in for a rude surprise."

Which brings us to Jeb Bush.  My first thought was that Bush was precisely the person whom Greenhouse was describing, someone who would find the Indiana situation "a rude surprise," and who would do everything possible to change the subject.  Bush's "brand" supposedly requires him to avoid stepping into exactly this kind of quicksand.

Yesterday, however, Bush caved, reportedly telling a conservative talk radio host that the new law is "simply allowing people of faith space to be able to express their beliefs."  Weirdly, Bush claimed that "[t]here are many cases where people acting on their conscience have been castigated by the government," which is probably a dog whistle for some category of right-wing grievances of which I am blissfully unaware.  In any case, Bush tried to finesse the issue by describing this as entirely a matter of being "tolerant" but allowing religious people to practice their religion.

Again, this is all rather surprising.  Why would Bush weigh in at all?  Even if he was directly asked the question by a conservative interviewer, surely Bush has the political savvy to say something noncommittal.  What was he thinking?  Three possibilities come to mind.

(1) Bush genuinely believes that this law is a good idea, and that it is necessary to pass such laws to protect religious people from persecution.  Much has been made of Bush's conversion to Roman Catholicism, and perhaps he is much more of a religious zealot than his faux-moderate image suggests.  In that case, his handlers have a problem, because his viability as a candidate in the general election explicitly is predicated on his not being a religious extremist.  The more it appears that he is just as extreme as the other Republican candidates, the more difficult it will be to deny that his political strategy involves using his name and connections to strong-arm the nomination, denying it to people with whom he actually agrees on hot-button, divisive (and broadly unpopular) issues.

(2) Bush does not think that laws like Indiana's are a good idea, but he thinks that supporting them is a small price to pay to get the nomination -- a price that does not risk undermining his image as the one non-extremist in a field of extremists.  If that is his thinking, then he would have to imagine that neutralizing this kind of thing in March 2015 will allow him to move onto other issues, leaving behind the divisive culture war stuff.  As Greenhouse's analysis suggests, however, such a hope on Bush's part is based on the expectation that cauterizing this bleeder will be the end of the problem, whereas the one thing we know for sure is that the Republicans who run about two-thirds of the state governments in the country are only getting started.

(3) Bush understands that this is a terrible and unnecessary law, and he is privately imagining the horrible things that he would like to do to Governor Pence (who, after all, was one of the most "out there" cultural conservatives when he served in Congress, in the same category as Steve King, Michele Bachmann, and Louie Gohmert).  Bush might, however, simply now understand that the establishment wing of the party has a tiger by the tail, and that even he has no choice but to adopt positions that are rejected by corporate CEOs, chambers of commerce, and other groups that are long-time allies of the Bush family.

Back in the Spring of 2011, when it had become clear that the then-new Republican majority in the House was willing to threaten economic Armageddon in the pursuit of anti-government extremism, I wrote a post here on Dorf on Law titled "Is This Why They Bought Congress?"  I suggested there that the businesspeople who poured money into Republican coffers must surely have been dismayed by the recklessness of the congressional majority that they had so happily purchased.  Four years later, it is difficult to believe that Jeb Bush or anyone else could really be surprised that the party's base is willing to push every extreme measure that they can imagine.  But it is at least possible that Bush is in the early stages of learning that there really is no way both to win the nomination of his party and still win the general election.

In any event, if I were a Democratic political advisor, this would be one of those weeks where I really loved my job.


Joe said...

I don't know Jeb Bush's true beliefs here but the guy has to win over some conservatives to get the nomination. This law is red meat to them. It would be pretty significant if he actually was against it.

Jeb Bush to me is trying to be a sort of "mainstream" candidate who doesn't make waves. A Cruz or Paul, in their own way, will do that on certain issues. Bush will play it pretty safe.

If this be "pandering," it is done by various types. This is not meant to be a major defense of the guy, mind you. I don't think in his heart of hearts he is against the law strongly. As to the first option, again, don't really know. As an outsider, doesn't come off as a true believer sort. FWIW.

Unknown said...

I think a lot of People would do well to consider the analysis of Professor Laycock; there is very little practical difference between Indiana's law and the federal version and claims of a religious right to discriminate almost always fall flat.

Joe said...

Various legal analysts disagree that there is "very little practical difference" between the state and federal laws. Also, the timing is significantly different. As the Indy Star says, it would help a lot if an anti-discrimination priviso was attached to the law as well.




As to "almost always," that too is open to debate. Unclear what that means. SCOTUS treated religious employees who raise disability law claims differently there. I would think the law must do something for various people, including certain law professors, to say it's important to have such a law. Again, the cases where certain claims were rejected would suggest the broader language was put there for a reason.

Shag from Brookline said...

JEB's comments were made before Gov. Mike ("in for a penny, in for a ..." ) Pence's press conference today. JEB and other Republican potential presidential candidates provided knee-jerk support for Pence following his performance on TV's "This Week with George S." on Sunday. His tone was somewhat different today. This is "Pennies from Heaven" for Democratic political advisors, ready to pounce on the sus-Pence-ful flip-flopping.

David Ricardo said...

Jeb had no choice but to support the law, supporting the law is a litmus test for a potential Republican nominee. In the long run it probably will not matter.

What Bush needs to do is to make sure this stuff does not become a major theme of the race for the Republican nomination. Unfortunately for him it looks like it will be.

As for what the business wing of the Republican party thinks about this stuff, they have known for years that pandering to the right is required to get them the votes they need to take control of the legislatures. They really don't care.

egarber said...

I am curious about the constitutionality of laws like this one.

Is the state establishing a religion in the name of free exercise? Meaning, does the general law give religious belief preferential treatment over non religion? If I can discriminate because of religious belief but not for other reasons, is the state elevating (and codifying) theology?

Since such laws require the courts to determine "burden" on religious practice, do they recklessly entangle government with religion - putting the state in the position of deciding what is and isn't a valid belief?

Is the law simply intended to discriminate via animus, ushering in the kind of business owner "liberty" that used to justify denying service to black people?

egarber said...

Reader suggestion: would be awesome if you could edit comments. :)

Michael C. Dorf said...

My Verdict column next week will address some of the technical issues raised by the ostensible differences between the Indiana RFRA and those of other states--although by next week the Indiana law may have been amended.

Asher said...

First, on differences between the federal RFRA and this bill, even the Think Progress piece linked to above basically acknowledges that the "differences" are (a) that Indiana's RFRA explicitly covers corporations, while the federal RFRA ... covers them ambiguously, but covers them nonetheless as per Hobby Lobby, (b) that it makes explicit what most circuits and the DOJ say RFRA says ambiguously - that it applies to private suits. So all that the differences amount to is that Indiana's RFRA is a more clearly drafted statute. Or at least, that's all the two differences discussed in a tendentious article that says claims that the two RFRA's are about the same are a "big lie" amount to. Maybe there are others.

As for the absence of a ban on sexual orientation discrimination in Indiana, they ought to enact one. But what I can't understand is why everyone's convinced that this RFRA has been enacted to create a religion-based exemption from anti sex-orientation discrimination law that doesn't exist. How can you make exemptions from laws that don't exist? People seem to be imagining that a gay couple that wants to get married in Indiana is going to sue a country club in Muncie for refusing to host their wedding on the basis of sexual orientation, and the benighted Muncie country club will invoke the Indiana RFRA as a defense. I would have thought, given the absence of sexual orientation discrimination law in Indiana, they'd move to dismiss for failure to state a claim. They wouldn't complain that an antidsiscrimination law that doesn't exist imposes a substantial burden on them and isn't narrowly tailored to advance a compelling interest, would they? That makes no sense. So unless these Indiana legislators are nuts, I can't see that they enacted this RFRA to allow religious business owners to discriminate against gay customers. The hole in Indiana's antidiscrimination law is what gay rights advocates ought to be talking about, not their RFRA.

Jim said...

News flash for Asher: most folks anticipate that the Supreme Court is about to, in effect, enact on behalf of Indiana (and the other states) a ban on a particular sort of sexual orientation discrimination -- namely, discrimination against same-sex marriages. Once that happens, wouldn't you expect a private business to invoke Indiana's RFRA as a basis for denying benefits to the spouses of gay employees? And don't you suspect the timing of Indiana's RFRA might just be motivated by anticipation of the Supreme Court's ruling?

By the way, I'm guessing that gay rights advocates also would be pleased if Indiana legislators were to enact a ban on sexual orientation discrimination. That doesn't mean, of course, that such advocates need to be pleased with, or complacent about, the additional assault on gay rights reflected in Indiana's RFRA.