Was the Indiana Mess Merely Political Theater? Does it Matter?

by Neil H. Buchanan

The latest news from Indiana is that the governor has now signed an amendment to the state's new Religious Freedom Restoration Act, specifying that the new law will not authorize discrimination, including discrimination on account of sexual orientation.  Everyone is amazed by how quickly this all happened, and the outcome is both surprising and delightful.

One question that has been raised along this very short road is whether the unamended version of Indiana's law could have caused the bad outcomes that raised people's hackles in the first place.  Was Apple's CEO Tim Cook simply misinformed when he wrote his op-ed condemning the law?  Even on the comments board for my Dorf on Law post earlier this week, readers fought about whether there was really anything to fight about.  Maybe this was all political theater.

I disagree with that assessment, but let us imagine that the amendment really was unnecessary, which would require us to imagine that the unamended statute was meaningless in the first place.  That is hardly unprecedented.  States have been passing bizarrely unneeded laws regarding culture war issues for quite some time, including bans on sharia law.  In 2004, the Bush reelection campaign engineered a series of state-level initiatives banning gay marriage, not to prevent those states' legislatures from suddenly approving gay marriage (which was not going to happen), but specifically to increase voter turnout among Republican voters.  (This was the third part of the Bush/Cheney campaign's "fear, smears, and queers" strategy that Al Franken lampooned in The Truth: With Jokes.)

So let us consider as a possible scenario that the Republicans in the Indiana legislature, and its Republican governor, decided to pass a completely unnecessary (from the standpoint of bigots) and legally meaningless statute.  Presumably, they did so to try to convince their base voters (pun intended) that the state's Republicans were on their side.  It was all about sending a message to the world that Indiana thinks that religious "freedom" means giving people (and businesses) the right ... what ... not to deal with gay people -- but only in a way that is already permitted by law?

If it was all messaging, then the politicians deserved the very public national thrashing that they received, because the response to their message was simply a different message: Even the business wing of the Republican Party thinks that sending your message is stupid and damaging.  Governor Pence et al. can hardly complain that they were unfairly misunderstood, if they went to such lengths to pass a law that (as I am stipulating here for purposes of argument) had no legal import, simply to score political points.

In any event, these events introduce one important new wrinkle into the Republican Party's internal war.  Until now, as I discussed in Tuesday's post, the big question about Republicans was why the money men were not better able to control the zealots.  The 2013 government shutdown was never supposed to happen, yet the Cruz-led forces actually managed to damage the Republican brand so badly that the party's leaders spent most of 2014 trying to reassure people that they could "govern responsibly."  (They are still trying.)

It must mean something that the business wing of the party is willing to come down so hard on a gay rights issue, whereas it has been unwilling or unable to keep a tighter lid on the craziness regarding explicitly economic issues like budgets, the debt ceiling, and so on.  (Yes, I know that the threat of economic boycotts, etc., were part of what drove the results in Indiana and Arkansas this week, and in Arizona before that.)  Either the business establishment does not think that federal budgetary sanity is as important as appearing to be tolerant on gay rights, or the non-religious Tea Partiers are a tougher crowd than the Religious Right now appears to be.

Finally, let me return to my comments from Tuesday's post about Jeb Bush.  It would have surprised no one if all of the other potential Republican presidential candidates had come down solidly on Pence's side.  (In fact, many of them were savvy enough to be essentially absent on the issue.)  But for Bush to say that there was nothing wrong with the law was different -- and not merely because it left Bush in the impossible position of trying to explain why a law with no content is worth defending.

The Bush strategy, as far as anyone can tell, has been to set himself up to run in the primaries as if he is already running in the general election.  That is, he has taken positions on education and immigration that anger the party's base, on the theory that he can be viewed as a statesman with principles.  The family name and a few hundred million dollars will secure the nomination, and then he can run as what currently counts as a moderate in the general election.

As I noted on Tuesday, however, Bush's error here is potentially a major problem for his campaign.  Let me stipulate up front that there is almost no single moment that can sink a campaign.  Even Mitt Romney's infamous remarks about the lazy, ungrateful 47% of the country would not have had nearly the impact that they had, were it not for his abysmal track record of saying things that showed him to be entitled and condescending.  (His offer to bet $10,000 with Rick Perry during a debate was part of that track record.)

Therefore, if Bush's pander on the Indiana RFRA is ultimately an isolated matter, then we will quickly forget about the whole affair.  If, on the other hand, this is merely the first indication that Bush really cannot compete in his party's primaries -- even with name recognition and money -- without pandering to the religious extremists, then that is a serious problem for him.

If I were a Bush supporter, I would also be worried that he was so out of step on this issue that he could not even see the value in remaining silent for a few days.  If one of his supposed advantages is that he is chummy with the boys in the chambers of commerce, why did he not see that the business guys were so quickly and loudly signing up on the other side of this issue?

No, this week alone will not end Bush's viability as a candidate.  What it does do is raise anew questions about his ability to win both the nomination and the general election.  After all, if an unapologetically immoderate nominee were to emerge for the Republicans, he could run in the general election on the claim that "at least you know what he's for."  The more Bush says stupid, pandering things to win the nomination, however, the less his excuse for running adds up.

And that is true whether or not the Indiana law had any content.  If it did, then Bush was needlessly pandering in support of a law that does not give religious people anything that really matters to them.  If the law did have content, however, then Bush took the side of religious bigots in a culture war landscape that has (happily) changed with lightning speed.