This week’s furor over “religious freedom” laws in Indiana and Arkansas gives new meaning to the phrase “tempest in a teacup.” Relatively small religious groups around the country managed to work their members into enough of a tizzy over the pace of gay marriage legalization, a bakery in Oregon and a wedding photographer in New Mexico to bring this legislation up in a number of states. And in the wake of Indiana’s RFRA being signed into law, LGBT advocacy groups stirred up enough tweets and op-eds about “bigotry” and “discrimination” to get the governor of Connecticut to institute a ban on state-funded travel to Indiana and Angie’s List to cancel construction of a planned headquarters expansion in Indianapolis.
In the case of Indiana’s RFRA, however, the reaction campaign against the law seems to be calculated to obscure the fact that it doesn’t really change any facts on the ground about discrimination. As Michael Lindenberger in The New Republic finally pointed out on March 30, the Indiana RFRA doesn’t “legalize discrimination against gays” for the simple reason that it’s already legal.
To many Americans, gay marriage has become such a clear-cut cause and the subsumption of LGBT rights under the banner of civil rights has become so obvious that they assume that it’s already against the law for a florist to refuse to provide flowers for a gay wedding. But in most of the country it isn’t. Discrimination against African Americans or Muslims is illegal because race and religion are protected classes under federal civil rights law. Sexual orientation is not, and only 21 states, a smattering of municipalities outside those states, and the District of Columbia actually prohibit refusing service to gay people. Even before this law, in most of Indiana businesses could already turn down gay customers and didn’t need to cite any religious beliefs as the basis for doing so (Indianapolis and a few other cities and counties do have anti-discrimination ordinances).
This situation itself may be abhorrent, but it looks a bit ridiculous to get worked up about a new law that allegedly allows something that wasn’t prohibited beforehand. And it’s absurd to suggest that we should specifically boycott Indiana for allowing discrimination for religious reasons when more than half the states in the union already allow it for no reason whatsoever. I understand that laws and controversies over laws have an expressive dimension and aren’t just about what things they permit and prohibit, but LGBT advocacy organizations have encouraged anger at this particular law with hardly a mention of the legal status quo in Indiana and 28 other states. it’s extremely disingenuous for activists to stoke outrage about Indiana as if this was a unique situation. And it’s unacceptable for journalists reporting on this controversy not to point out that anti-gay discrimination is already legal in Indiana and a majority of other states.
As I say all of this, I want to make it clear that I’m fully in support of the broader push for gay rights and for protections against discrimination for gay and lesbian Americans. What’s more, I understand why Human Rights Campaign and other activist groups encourage outrage in this disingenuous way. Which sounds better:
Indiana just passed a law that would allow businesses to discriminate against LGBT customers. Help us tell Indiana Gov. Mike Pence that we won’t stand for hate!
29 states still permit anti-LGBT discrimination. Help us spread the word and push for new legal protections!
Clearly, the first call to action is going to get more retweets, more Facebook shares, and bring in more money. And in the advocacy business, bringing donations and eyeballs to your cause is important. But in this case it’s the second call that actually describes the more morally objectionable situation.
People have a tendency to get more worked up about things that are concrete and close at hand than they do about things that are objectively worse, but harder to picture or more abstract. This is like a version of availability error; call it “outrage bias.” There seem to be a number of factors that influence how outraged people get about something, but which have little to do with how outrageous it really is, such as being a specific event rather than an ongoing state of affairs, having victims who are easy to imagine and sympathize with, or having a villain who is easy to picture and pin blame on. The Indiana RFRA can grab the outrage spotlight ahead of the general lack of anti-discrimination statutes because the Indiana case is hooked to an event going on presently in the news and features Indiana Republican legislators and closed-minded small-town pizzeria owners as characters we can easily imagine as hateful bigots. (The nice gay couple who can’t get a cake for their wedding make for a good victim, but that works in either case).
By the way, outrage bias seems to work just as well on the other side of the political spectrum. It’s easy to imagine how conservatives in Indiana started pushing for this law as a reaction to an event in the news, namely the US Supreme Court’s refusing to hear an appeal in Baskin v. Bogan in October 2014, which resulted in same-sex marriage being legalized in Indiana. That, along with the Oregon and New Mexico cases, allowed talk radio hosts to portray liberal judges and gay rights advocates as evil socialists intent on trampling religious freedom. Even though gay marriage never posed any real threat to religious freedom, these factors made it easier to generate outrage to pressure Indiana legislators into passing this law.
The problem with outrage bias is that, especially in our social media environment, it means that relatively unimportant stories can spread like wildfire while people remain uninformed about more significant problems. A number of my friends brought up the Indiana law in conversation this week, complaining that it makes it legal for people in Indiana to discriminate against LGBT people. But when I asked them, “isn’t that already legal?” I was usually met with blank stares.
Activists understand that people suffer from outrage bias, and so they look for the kind of stories that are going to outrage people, the kind that can go viral and bring a lot of attention to an issue, as well as raise a lot of money. But focusing on those narrow events can come at a cost, as we can see in the way that the Indiana case seems to have shaken out. On Thursday, Indiana legislators approved a “fix” to the law which added the provision that it was not to be used to justify discrimination by individuals and businesses on the basis of sexual orientation or gender identity. But since Indiana businesses, outside of a few cities, didn’t need that justification to discriminate in the first place, this amounts to LGBT activists getting very little policy progress out of the massive storm of umbrage they stirred up. They may have raised a lot of money, which they might use to fight for anti-discrimination protections, but by making the choice to make this issue strictly about the Indiana RFRA, they gave up on the opportunity to use this occasion to push for general anti-discrimination provisions in Indiana. If the problem is presented as specifically having to do with the RFRA, then a fix to the RFRA will look to most observers like a solution to the problem. But if activists had used this opportunity to highlight the broader problem of the lack of anti-discrimination protections for LGBT citizens in 29 states, they might have had a chance to achieve something more than maintaining the status quo.