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Photo of the Day, Colorful British Ferry Edition

Why? Does it really matter? No, it doesn't. It's a ferry, and it's colorful.

Why Republicans Are Getting So Spooked On Gay Rights

As I wrote yesterday on some other magazine's web site, the conservative argument on gay rights has gone from "It's not you, it's me" to "It's not me, it's them." After abandoning moral condemnation of gayness, the opponents of gay rights insisted that the problem wasn't gay people themselves, it was that straight people, confronted with gay people, felt all weird, and that's why those rights had to be restricted. So for instance, they argued that the ban on gay people serving in the military should be kept not because gay soldiers couldn't serve with distinction, but because their presence made straight soldiers uncomfortable. It's not you, it's me.

But now that has changed, to "It's not me, it's them." The oddest moment of this whole Indiana controversy was when Mike Pence, in his press conference on the issue, explained just how desperately he hates discrimination against gay people. "I don't support discrimination against gays or lesbians or anyone else," he said. "I abhor discrimination. I want to say this. No one should be harassed or mistreated because of who they are, who they love, or what they believe. I believe it with all my heart." Inspiring, and if you know Mike Pence's history on this issue, positively gobsmacking.

But that's where Republicans have come to. They still want to maintain the right of people to exercise their "conscience" in commercial transactions, but they also want everyone to know that they themselves would never, ever even consider discriminating in that fashion. If Mike Pence were a baker, he'd probably make nothing but cakes for gay weddings, so deeply committed is he to the principle of non-discrimination. It's not him, it's those other deeply religious people.

Is it sincere? In many cases I'm sure it isn't. I can't read anyone's mind, so I can't say for sure whether Pence experienced a genuine change of heart (though I have my suspicions). But that doesn't really matter; what's important isn't what politicians believe deep down, but what they do.

If you want a hint as to why the GOP is insisting that they themselves are so deeply offended by the thought of a butcher, baker, or candlestick maker refusing to serve a gay customer, even as they want to maintain the legal right to do so, look no further than this poll from the Public Religion Research Institute (h/t Sarah Posner):

I'd certainly like to see more polling on this question (and I'm sure some such polls are in the field right now), because I'm shocked at those numbers. Given how much we've been hearing about the terrible plight of anti-gay bakers and photographers, I would have thought that many more people would say yes to that question. You could certainly phrase it in ways that would produce higher numbers, but it's still striking.

If that's where public opinion really is, you can bet that more Republicans are going to evolve on this question, and right quick.

Why the Newly Amended Indiana RFRA Is a Real—But Only Partial—Victory

Indiana Senate President Pro Tem David Long speaks as House Speaker Brian Bosma (R) looks on during a press conference about anti-discrimination safeguards added to the controversial Religious Freedom Restoration Act at the State Capitol April 2, 2015, in Indianapolis, Indiana. They look pretty psyched, don't they?

The Republican leadership in Indiana has released its proposed changes to the "religious freedom" law they recently passed, and it's both an extraordinary retreat and not much of a change at all. Both things are important to understand, but here's the language from the new bill:

This chapter does not:

(I) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, ability, sex, sexual orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or

(3) negate any rights available under the Constitution of the State of Indiana.

As the Republicans have pointed out, this is the first time the words "sexual orientation" or "gender identity" would be mentioned in Indiana state law. It's a testament to how eager Republicans are to show everyone that they abhor discrimination and have nothing but the most tender feelings toward their gay brothers and sisters. And (presuming it passes and Governor Pence signs it), this would mean that the state's religious freedom law couldn't be used in court as a justification for discrimination.

But—and this is a big but—this doesn't mean it's now illegal in Indiana to deny someone services because they're gay. What it does is return to the status quo ante, under which it's legal to discriminate in some places in Indiana and illegal in others. Right now there are cities like Indianapolis and Bloomington that have their own anti-discrimination statutes, but if you're in other parts of the state, it's perfectly legal to hang a "No gays" sign in the window of your store or restaurant. This amendment to the religious freedom law doesn't change that. If it actually forbade discrimination based on all those classes it mentions, then it would. But all it's doing is saying this particular law doesn't authorize that kind of discrimination. Since there's still no state law forbidding discrimination based on sexual orientation, if you're in a town without a local ordinance doing so, you can go ahead and keep your pizza place gay-free.

So: Is it a big victory for gay rights? Yes it is, particularly since it represents a retreat by conservative Republicans and changes the debate around future religious freedom laws. Does it make Indiana a paradise of equal treatment? Not yet.

Photo of the Day, Drought Porn Edition

BIG WATER, UT - MARCH 29: People walk on a beach that used to be the bottom of Lake Powell at Lone Rock Camp on March 29, 2015 near Big Water, Utah. As severe drought grips parts of the Western United States, a below average flow of water is expected to flow through the Colorado River Basin into two of its biggest reservoirs, Lake Powell and Lake Mead. Lake Powell is currently at 45 percent of capacity and is at risk of seeing its surface elevation fall below 1,075 feet above sea level by September, which would be the lowest level on record. The Colorado River Basin supplies water to 40 million people in seven western states. (Photo by Justin Sullivan/Getty Images)

Are America's Corporations Now Pro-Gay?

Arkansas governor Asa Hutchinson announced today that he won't be signing the "religious freedom" bill passed by the state legislature, and it sure isn't because of his deep concern for the welfare of gay Arkansans. You can reduce it to two factors: first, he surely wanted to avoid the PR disaster and boycotts that Indiana is now suffering through, and second, Walmart. The Arkansas-based behemoth, the state's pride, joy, and largest private employer, released a statement condemning the bill, saying it "threatens to undermine the spirit of inclusion present throughout the state of Arkansas and does not reflect the values we proudly uphold."

You may not think of Walmart as a particularly progressive company, and they aren't. But in truth, they aren't a particularly conservative company either. Why does Walmart fight unions with all its might and pay its workers as little as it thinks it can get away with? It isn't because of some Randian philosophy, it's because they long ago decided that profit can be maximized by keeping prices and costs as low as possible, and they've proven themselves spectacularly good at achieving those goals. You might counter that there are companies like Costco that treat employees better and also make healthy profits, and you'd be right. But Walmart does what it does because of its perception of what's good for its bottom line.

That isn't to say that every business leader sees only dollars and cents in every decision, but personal feelings tend only to come into play when the lack of business risk allows it. Tim Cook of Apple may write an op-ed condemning the Indiana law because of what he personally believes, and because he knows that those beliefs are shared by most of his employees. But Indiana isn't a big part of Apple's long-term plans one way or another. Walmart, on the other hand, has a critical stake in Arkansas, and in 2015, that means they don't want the state to be viewed as intolerant.

We've now reached a point where companies even in very conservative areas realize that being gay-friendly is important to recruiting, not so much because they want to recruit gay employees, but because they want to recruit employees who find an inclusive work environment attractive. And when you're in a state like Indiana or Arkansas, you have to work extra hard to be able to recruit the best people.

I'm not trying to insult those states, but the truth is that there aren't that many kids living in, say, California who dream of one day moving to Pine Bluff or Gary. If your company is headquartered in New York or Seattle or Miami, on the other hand, you don't have to worry as much about whether you're going to be able to convince people to move there, or whether you can keep talented local people from leaving. But that is something that a company like Walmart does worry about.

For every corporation like Hobby Lobby that has an ideology it will pursue even at the expense of profits, there are a hundred others that are happy to shift with changing times if doing so is good business. My guess is that Mike Pence not only didn't expect the firestorm of activism that would greet Indiana's religious freedom bill, he also didn't realize how quickly major corporations would come out against it. But it wasn't personal. It's just business.

Get Ready For the Munich Analogies

Wikimedia Commons

If the negotiators from the U.S. and other nations succeed in getting an agreement to restrain Iran's nuclear program, Republicans will of course object that the deal is terrible and gives away the store to the Ayatollahs. We know this because they've been saying that for months, even though they don't actually know what's in the deal. It's enough to know that 1) it was negotiated by Barack Obama's government, and 2) it's a deal with an adversary, which by definition must be weak and craven. But there's something else we're going to be hearing a lot: Munich analogies.

I can make that prediction with certainty as well, because we've already heard plenty of them. But as I discuss at the Plum Line today, we should be absolutely clear what those who talk about Munich are saying:

Many of us roll our eyes and poke fun at endless Hitler analogies, but in this case their use is extremely revealing. If you believe that the negotiations with Iran are the equivalent of those in Munich in 1938, what you're basically saying is that war with Iran is inevitable, so we might as well get started on it right away. After all, it isn't as though, had Chamberlain left Munich without an agreement, Hitler would have retired and gone back to painting. The whole point of the "appeasement" argument is that the enemy cannot be appeased from his expansionist aims, and the only choice is to wage war.

That's what Iran hawks are arguing: We shouldn't pussyfoot around trying to find a diplomatic solution to this problem when there's going to be a war no matter what.

You can call this clear-eyed realism, or you can call it terrifying lunacy. But it would be nice if they would admit that war is indeed what they're advocating. Up until now, only a few conservatives have been willing to say so. I'd like to hear their argument, and not a bunch of "all options should be on the table" hedging, but a real case for why launching a war on Iran really is the best of the available options.

I'd like to think that after the disaster of Iraq, the American people would hear that debate and emphatically say that war with Iran is such a spectacularly stupid idea that no one who advocates it should get within a mile of the White House, the State Department, or the Pentagon. But maybe they wouldn't — maybe enough dark warnings about how the Iranians will soon turn Omaha and Augusta and Topeka to wastelands of rubble would be enough to get the war juices flowing once again. After all, it has been a whole twelve years since we started a war, and given the history of the last few decades we're way past due. So who's the brave Republican willing to run on a war platform? I'm sure a couple of them will step up.

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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