Indiana's Odious Law

WASHINGTON -- There are three essential questions to ask elected officials -- and those running for office -- in the usefully messy aftermath of the fight over Indiana's ill-intentioned law to protect religious freedom.

Before I get to the questions, let me expand on that description:

The fight over Indiana's especially odious version of the Religious Freedom Restoration Act has been useful because it focused public attention on the unfinished business -- and looming threats -- that will remain even after the Supreme Court rules (presumably favorably) on same-sex marriage.

The fight has been messy because -- well, have you been watching Indiana Gov. Mike Pence? If Sunday talk shows had referees, one would have stepped in to call off the pummeling that Pence took from ABC's George Stephanopoulus.

The law is ill-intentioned because -- just look at the photo of the anti-gay-rights activists surrounding Pence at the signing ceremony for the bill.

They include one who believes "homosexuality is harmful to all, including society" and has equated it with "bestiality," and another who claims that homosexuality is "treatable, changeable" but also "individually destructive and dangerous." So much for Pence's claim that "I abhor discrimination," including "against gays or lesbians or anybody else."

Now, the questions:

Question 1: "Do you believe it is acceptable to discriminate against individuals in employment, housing or public accommodations and services (that is, commercial enterprises) on the basis of sexual orientation?"

If the answer is yes, conversation over. But also, political career over. "Yes" is not a politically acceptable answer in 2015, when a majority of Americans support same-sex marriage.

So on to Question 2: "If you believe that such discrimination is unacceptable, do you support state and federal legislation to prohibit it?"

This is the central issue accidentally propelled to the forefront by Indiana. Legal protections against discrimination on the basis of sexual orientation remain woefully inadequate -- contrary to the convictions of most Americans who wrongly assume that such discrimination must already be illegal. It's not.

According to the Human Rights Campaign, 29 states have no laws protecting gays and lesbians in employment, housing and public accommodations. Neither does the federal government. In most states, as HRC notes, you can be legally married to someone of the same gender on Saturday night and fired by your employer for doing so on Monday morning.

Pence, Mr. "I abhor discrimination," doesn't think such a law is needed. "I will not push for that," he told Stephanopoulos. "That's not on my agenda and that's not been an objective of the people of the state of Indiana."

Which leads to Question 3: "If you do not support such legislation, why not? Specifically, assuming that you support existing laws barring discrimination on the basis of race, gender, and, yes, religion, why is sexual orientation deserving of less protection?"

Pence's non-answer to this question boiled down to the suggestion that it was unnecessary. "Hoosiers don't believe in discrimination," he assured Stephanopoulos. "I mean the way I was raised, in a small town in Southern Indiana, is you're kind and caring and respectful to everyone. Anybody that's been in Indiana for five minutes knows that Hoosier hospitality is not a slogan, it's a reality."

No doubt -- indeed, some of my favorite friends are Hoosiers. Hospitality notwithstanding, Indiana law makes it illegal to discriminate on the basis of race, religion, color, sex, disability, national origin and ancestry. So under Pence's reasoning, either that protection is unnecessary, given the state's essential niceness, or it recognizes that even in states with nice people, some do bad things. What next? Repeal Indiana's murder laws because Hoosiers are so "kind and caring?"

Substituting race for sexual orientation also helps resolve the seemingly sticky question of how to think about the evangelical Christian baker who balks at producing a cake to celebrate a same-sex wedding, or the innkeeper who doesn't want to host the reception.

Imagine that the baker or innkeeper had religious objections to interracial marriage. Would we let them say "sorry, not in my shop?" No. That's what lunch-counter sit-ins were all about.

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn't be allowed to discriminate against people based on who they are, or whom they love.

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Ruth Marcus' email address is ruthmarcus@washpost.com.