Paul Waldman

Paul Waldman is a weekly columnist and senior writer for The American Prospect. He also writes for the Plum Line blog at The Washington Post and The Week and is the author of Being Right is Not Enough: What Progressives Must Learn From Conservative Success.

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Photo of the Day, Enormous Man Edition

A tot is understandably distressed at being hauled up to participate in the opening ceremonies of a sumo tournament in Himeji, Japan. Equally distressed is the guy on the right, who is appalled at this blatant violation of sumo tournament rule 62.a.(1), which reads in its entirety, "No babies."

Marco Rubio Gets Surprisingly Specific on Indiana

If you've been watching Indiana Governor Mike Pence over the last few days as the "religious freedom" law he passed has been getting so much attention, you've noticed that there are many questions he really, really does not want to answer. He doesn't want to get into specifics or hypotheticals, even when those specifics and hypotheticals—like what different type of discrimination might be allowed under this law—are absolutely vital to understanding it. But I was pleasantly surprised to see one Republican politician who was willing to get specific over this issue: Marco Rubio. Here he is appearing on Fox News's "The Five"—the relevant portion begins at around 3:45:

I don't happen to agree with Rubio on most of what he says, but at least he's addressing it. Let's break it down:

"No one here is saying that it should be legal to deny someone service at a restaurant or at a hotel because of their sexual orientation. I think that's a consensus view in America."

Actually, if you object to nondiscrimination laws that cover gay people, as most conservatives do, then you do think that it should be legal to deny someone service at a restaurant or a hotel because of their sexual orientation. That doesn't mean you think it's a good idea, but you do think it ought to be legal. But now we know that Rubio doesn't feel that way, which is a good start. And it's something that conservatives ought to be asked about, because they always fall back on "Well I don't like discrimination, and I think it's wrong." But that's not what we're debating; we're debating whether the law ought to prohibit it. Let's move on:

"The flip side of it is, though, should a photographer be punished for refusing to do a wedding that their faith teaches them is not one that is valid in the eyes of God? ... What about the religious liberties of Americans who do not want to feel compelled by law to provide a catering service or a photography service to a same-sex marriage that their faith teaches is wrong?"

The line Rubio is drawing seems very common-sense: If we're asking someone to participate in some meaningful way in a same-sex wedding, like baking a cake for it, that's different from just letting a same-sex couple eat in your restaurant. But in practice, it would be extremely difficult to write legislative language that made this distinction clear. For instance, what if the couple asks you to make the cake, but puts on the two little figurines themselves, so you aren't making it all gay? What if they come in and buy a cake that you've already made instead of having one custom-made, but you can tell they're going to use it for their gay wedding? Can you refuse to sell it to them then? Can a hotel refuse to book same-sex couples for their honeymoons, but not for ordinary vacations? It would be awfully hard to write a law that would provide clear guidance for all those kinds of situations.

One of the Fox hosts then points out that a photographer who wants to refuse to take pictures for an interracial wedding would be prohibited from doing so by law, and Rubio responds: "That's not the same thing, because here you're talking about the definition of an institution, not the innate value of a single human being. That's the difference between the civil rights movement and the marriage equality movement."

Of course you're talking about the innate value of a single human being, or in this case, two single human beings who are intending to no longer be single. But did you notice there that Rubio used the term "marriage equality"? Not too many times you'll hear a Republican say that. I'm guessing he won't make that mistake again.

The Self-Contradictory Argument All Republicans Are Making on the Indiana Discrimination Law

Now that it's becoming a national story, all the Republican candidates are going to have to take a position on the new Indiana law that for all intents and purposes legalizes discrimination against gay people. (If you're in the market for a lengthy explanation of what the law does and doesn't do and what the implications are, I wrote one yesterday.) And they all look to be coming down in the same place—one that's fundamentally dishonest about the law and its implications. They're essentially trying to have it both ways, supporting the establishment of a right of discrimination for religious business owners, but claiming that they are supporting no such thing. Here's Jeb Bush talking to Hugh Hewitt yesterday:

Bush: I think if you, if they actually got briefed on the law that they wouldn't be blasting this law. I think Governor Pence has done the right thing. Florida has a law like this. Bill Clinton signed a law like this at the federal level. This is simply allowing people of faith space to be able to express their beliefs, to have, to be able to be people of conscience. I just think once the facts are established, people aren't going to see this as discriminatory at all.

Hewitt: You know, the Religious Freedom Restoration Act was signed in 1993. It's been the law in the District of Columbia for 22 years. I do not know of a single incidence of the sort that Tim Cook was warning about occurring in the District in the last 22 years.

Bush: But there are incidents of people who, for example, the florist in Washington State who had a business that based on her conscience, she couldn't be participating in a gay wedding, organizing it, even though the person, one of the people was a friend of hers. And she was taken to court, and is still in court, or the photographer in New Mexico. There are many cases where people acting on their conscience have been castigated by the government. And this law simply says the government has to have a level of burden to be able to establish that there's been some kind of discrimination. We're going to need this. This is really an important value for our country to, in a diverse country, where you can respect and be tolerant of people's lifestyles, but allow for people of faith to be able to exercise theirs.

Just to be clear, the Indiana law is not like the federal RFRA, in both the context in which it was passed and its particular provision. The Indiana law specifically applies to disputes between individuals, whereas the federal law discusses only personal conduct the government is trying to regulate. (The federal law came about because of a case where two Native Americans were denied unemployment benefits because they had used peyote in a religious ceremony.) But in any case, Republicans like Jeb are trying to pretend that we can satisfy everyone, and that the Indiana law does so. But we can't, and it doesn't. We have to make a choice.

What Bush is doing here (and what Indiana Governor Mike Pence and the rest of the Republicans defending this law are doing as well) is a misleading little two-step. Their argument is: 1) We must allow religious people to discriminate; and 2) This has nothing to do with discrimination. But both those things can't simultaneously be true. You can call it "simply allowing people of faith space to be able to express their beliefs" or "people acting on their conscience," but the whole issue is that the act of conscience that they want to undertake is also an act of discrimination. That's because the particular acts of conscience we're talking about are those that are not in the realm of speech or worship but in the realm of commerce, and they involve another person.

The cases in question are essentially zero-sum conflicts of claimed rights. Janet wants to have an anniversary dinner in a restaurant; Mike, the restaurant owner, doesn't want to serve gay couples. There are only two possible outcomes: Janet and her partner get served, in which case Mike has to give; or Mike gets to refuse that service, in which case Janet has to give. You can dress up Mike's motivations any way you want—"sincere religious beliefs," "act of conscience," whatever—but that doesn't change the fact that one person is going to win and the other is going to lose.

The liberals who object to the Indiana law are making their choice clear: Janet's right to be treated equally trumps Mike's desire to discriminate, even though that desire is based on religious beliefs. The conservatives who support the law are taking the opposite position: If it's based on a religious belief, Mike's right to discriminate trumps Janet's right to be treated equally. I happen to disagree with the conservative position, but I would respect it a lot more if they'd just come out and admit what their position really is. Instead, they're trying to claim that there's no conflict between Janet and Mike and they aren't taking a side.

But they are. These kinds of conflicts are the whole point of this law, the reason why Republicans wanted to pass it and would like to see others like it. Of course, nobody wants to say they support "discrimination." But if that florist in Washington or that photographer in New Mexico whom Bush is defending have a policy that says, "We will accept the business of straight couples but not gay couples," then they're discriminating. Republicans want to make sure that business owners have a legal right to discriminate against potential customers in that fashion. They ought to just admit it.

Photo of the Day, Mature Butt-Kickers Edition

That, of course, is Venus Williams. At the age of 34, and despite suffering from Sjogren's syndrome, a chronic autoimmune disorder, Williams is staging a mini-comeback of sorts. She just beat former world #1 Caroline Wozniacki to reach the quarterfinals at the Miami Open.

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