The Battle of Indiana Didn’t Have To Happen

[Note: A Guest Post by Hit Coffee’s Will Truman]

There really is an odd feeling of the ground shuffling from under my feet. Fifteen years ago, I was on the far left of the same-sex marriage movement, and pretty far to the left on gay rights in general. Around ten years ago, most of my peers were coming from the same place. This appears to be the moment where, at least in respectable company, my views have gone from liberal to bigoted. While I do not grant the Indiana legislature the benefit of the doubt when it comes to the RFRA law they passed, I thought that the reaction was overwrought compared to the likely consequences of the law, and I am actually reasonably sympathetic the right of individuals and businesses not to provide services for gay weddings. Some of that is nascent libertarianism on my part, and a lot of it is that it was one of the things I said over and over again when trying to sell people on gay marriage: This won’t affect you.

The theoretical implications of the Indiana RFRA law could go beyond gay weddings and into public accommodations. Here I am often (though not always) less sympathetic to anti-gay business people. When it comes to emergency (health care, auto towing) and essential (food, shelter, employment) services, I don’t believe that discrimination against gays should be legal. But attending a gay wedding even if just to cater? I believe a degree of discretion is called for. It’s become quite clear that puts me well to the right of the gay marriage movement that I have belonged to my entire life.

The right is freaking out. The thing is, though, it’s not just those who are anti-gay or anti-gay marriage. A lot of erstwhile supporters of gay marriage have become very uncomfortable. Not because of disagreement about the wedding caterers, but over the apparent unacceptability of any disagreement. As well as the conduct of some (just some!) opponents of the Indiana law, from the TV news crew that went trolling to find some business that wouldn’t cater a gay wedding, to the harassment and threats the company got afterwards.

This may prove to be a watershed moment for gay rights, and in the final analysis the ends may justify the means. If given a binary choice between gay acceptance to the point of requiring businesses to cater gay wedding, and the status quo of fifteen years ago, I’ll take the former.

But on the whole, it’s not a good situation. And it didn’t have to be this way. And ultimately, I believe the fact that the blame for where things are lies not with the left but the right.

Ross Douthat has made repeated mentions that the right is “negotiating its surrender.” He makes a point similar to the one I am about to make, but he seems to view it in the context of “the left changed” while I see it as “the right refused to until it was far too late.”

The problem here is that they are coming from such a place of weakness that there isn’t much to negotiate. The have to play off latent sympathy from the other side, to which they have shown none. Actions have consequences. Rather than relating this to a war that is winding down, though, I think the more applicable comparison is to trying to negotiate a settlement after the verdict is in. You had your chance to get a much better settlement. You were unreasonably cocky, and these are the consequences.

The writing was on the wall a decade ago. Gay marriage was going to become legal. It was just a question of when. We’re slightly ahead of schedule by my predictions. But the right had plenty of time to “evolve” on the issue and make a swift and orderly accommodation of the fact that gays, too, would like to be married, and the perspective that there aren’t many logical reasons why they shouldn’t that don’t involve an open bias that was likely to become increasingly unsavory.

The retort to this is, in the words of Dave Pinsen, “you can’t negotiate with a steamroller.” Not when it’s right at your doorstep you can’t, perhaps, but it took a long time for it to get here. And coming at it from the pro-SSM side, there was a really long time that the SSM would have traded a lot to get the fight over with. When the climb is uphill, they’re still willing to compromise, as they did in Utah. But you made them (us) fight for every yard. And victory is so close as to be a foregone conclusion.

There are limits to this, of course. Jacob Levy argues that they could have avoided this if they’d offered Civil Unions in the 90’s, but I can say pretty firmly that such could never have been a stable compromise. The distinction between marriage and union is just too artificial. Rather than the 90’s, I look to the late-ish aughts all the way to 2013, before it became clear that the courts were going to do what the legislature wouldn’t. Gay marriage still seemed at least a dozen years off in 2007, and this is not the sort of law that they really wanted to wait on.

Had they come to the table and asked, in return for gay marriage, rock solid protections for the religious consciences of the marriage industry (exempting them from existing anti-discrimination laws and future ones unless explicitly stated otherwise), and there is no doubt in my mind they would have taken the deal. Would they have returned ten years later to try to force the caterers to act? It’s possible, but there again I think the impetus would have been on getting general anti-discrimination law passed and trying to insist that wedding caterers lose their exemption would have gummed up the works for something that is a really, really small (and non-emergency, non-essential) segment of the economy. It probably wouldn’t have been worth going back to.

But now? Now they can just incorporate it with everything else. And its opponents have spent so much on delaying the inevitable, they are in an exceptionally weak position. By delaying the inevitable, they allowed the other side to marshal all conceivable forces, from Apple to the NCAA to NASCAR to Walmart, to join their army. This is, first and foremost, the result of their own strategy.