by Dan Carpenter
Last summer’s U.S. Supreme Court decision affirming marriage equality seemed like a cause for celebration. Singing, dancing and awards-giving ensued among the newly validated and their many allies. Then, in short order, LGBT rights supporters were confronted by a bigger problem: Under most state laws, including Indiana’s, citizens now free to form sanctioned households together had no protection against being fired from their jobs, evicted from their homes, or denied public services or accommodations because they were gay.
Marriage equality was the cart before the horse of equal citizenship.
It’s enough to make Chris Douglas say, “I told you so.” The Broad Ripple investment manager is the civil rights activist you never saw coming: successful businessman, decorated Navy veteran, connected Republican. He’s also gay and considers someone of his background and credentials more effective at changing hearts and minds about LGBT neighbors. He was less than enthusiastic about pursuit of marriage equality through the courts because he felt it skipped the necessary groundwork of building upon the growth, in recent decades, of public acceptance. “Those in the movement who had not known tolerant environments, as I had, didn’t trust the prospect of acceptance,” he says. “So the marriage lawsuits were pursued to a huge backlash. I feel they set the anti-discrimination cause back.”
In Indiana, the backlash Douglas refers to was passage of the Religious Freedom Restoration Act in the 2015 session of the Indiana General Assembly. That touched off a storm of outrage in the corporate, academic, and sports realms here and beyond, forcing a chastened walk-back by Gov. Mike Pence and legislative leaders who appended the legislation with wording that they maintained granted fair treatment for LGBT Hoosiers. Instead, it opened the door to a legislative proposal that didn’t make it to a vote this session: addition of sexual orientation and gender identity to categories of protection in state civil rights law.
Municipalities have been well ahead of states in extending human rights ordinances to LGBT persons. One of the most conspicuous red flags in the controversial Senate Bill 344 was that it could compromise progressive ordinances in Indianapolis, Bloomington, and five other Hoosier cities and any future local laws.
Public Perception
That would be a perverse case of fixing what’s not broken, as far as Kent Springer is concerned. The new president of the Broad Ripple Village Association says a welcoming atmosphere in that community has been bolstered by assurance that no matter what a conservative legislature might do to impede LGBT rights, Indianapolis residents are protected under city law.
Springer and his husband, Mark Luers, got married in California two years ago because they expected to wait a long time for marriage rights in Indiana. They were on an Asian cruise when the RFRA brouhaha made world news. “Indiana looked horrendous,” Springer said. “I don’t think people here realize that people were talking about Indiana in Singapore. Asian countries are very conservative, and they’re looking at us like we’re idiots.”
Legislative leaders promise to revisit the issue next year. But with conservative religious lobbies and many of their kindred lawmakers pushing hard for faith-based exemptions that amount to a right to discriminate, legislation satisfactory to the LGBT community and the formidable forces behind it will take both heavy lifting and delicate maneuvering. Already, Pence faces a disaffected and even mutinous evangelical base in his campaign for reelection. He played to that constituency resoundingly in his State of the State speech in January, bucking widespread hope he would move at least a few steps toward equality. But to win in November he needs the Chamber of Commerce, and that encourages supporters such as Chris Douglas—to a point.
Such is the glaring difference between the LGBT movement and most other struggles for equal access—for racial minorities, for workers, for the disabled—that have preceded it. “There is a class issue, an economic issue, driving the LGBT movement,” says the Rev. Darren Cushman Wood, senior pastor of North United Methodist Church. “That’s not being cynical. It’s the positive side of capitalism.”
It’s a source of brotherly envy for Wood, a labor activist who is part of a growing movement that considers the right to organize a civil right. He authored a book in 2004–Blue Collar Jesus–celebrating the history of Christian solidarity with unions and lamenting the erosion of it, especially among evangelicals. Just this year, he published an imaginary discussion of his denomination’s stance on homosexuality entitled The Secret Transcript of the Council of Bishops. As shepherd of one of the pioneering congregations in United Methodism when it comes to embrace of LGBT worshipers, he sees that subset of Americans inevitably gaining acceptance with the generational tides. “Gay rights is ascending,” he says. “It’s cool now. Labor is not cool.”
Crying Wolf
Wood’s wistfulness is shared by Greg Fehribach, the attorney who’s been Indiana’s go-to guy for disability rights and opportunities for a generation. Perhaps you’ve seen him around town at government hearings or in boardrooms. Greg was born with osteogenesis imperfecta, known as brittle bone disease. He requires a power wheelchair for mobility.
“I wish I’d had this groundswell of support back in the ’80s,” he says. “I wouldn’t have had to go through all this lobbying and demonstrating. But we still haven’t gone as far as we need to.” While more work needs to be done, Fehribach said the hand-wringing over costs and logistics that greeted advocates like him back in the day has pretty much given way to just doing it. He observes that much of the resistance came from religious institutions, whose complaints about the steep cost of retrofitting their facilities led to dispensations in the law—for worship, but not public, activities.
“It was crying wolf,” Fehribach says. A Roman Catholic and a graduate of Bishop Chatard High School, he has seen his denomination’s churches, the oldest and most unwieldy of any faith, make the adjustments needed by people with disabilities. “It’s not even an issue any more.” And today’s religious objections to LGBT access? “Nothing but history repeating itself,” he says. “It’s been this way since the beginning of mankind. Not a novel idea. Discrimination du jour.”
To those who would argue that religious resistance to accommodating people with disabilities has been practical rather than theological and moral, Fehribach shares his personal experience. He can matter-of-factly recall old bigotry from warped beliefs. “A lot of times faith-based groups would see disability as the result of your sins, or the sins of your family.”
Similarly, scripture has been the source from which many foes of the mid-20th-century movement against racial injustice drew justification.
Cursed by God
Roderick Bohannon, a lawyer with Indiana Legal Services and former head of the Indianapolis Chapter of the National Association for the Advancement of Colored People, was in Mississippi in those days. “Opponents tried to argue that if you were born a certain way, you’re cursed by God and ‘I can’t be with you.’ Many people thought that was great stupidity,” he recalls. “My concern is, at what point does a religious exception become outright discrimination?”
He points out that the Civil Rights Act of 1964 was passed under the Commerce Clause of the U.S. Constitution in order to prevent equal protection violations by the states. Businesses cannot discriminate against minorities because such actions hamper the “free flow of the economy.” No personal-conscience exemptions are included.
A prominent strain of conservative legal theory holds that equal access to goods and services in the private sphere should not apply where there’s no monopoly (e.g., hospital emergency rooms in the antebellum South that did not serve black patients). In other words, if a couple can get a wedding cake elsewhere, don’t force a baker to help out with a ceremony he thinks is objectionable.
That doesn’t work, the veteran civil rights lawyer asserts. “Now they’re trying to frame it as a small, mom-and-pop store decision,” Bohannon says. “But Hobby Lobby [which won a Supreme Court fight over its religious objection to paying for contraceptive coverage for employees] is not small. And what if Walmart wanted to join in?”
However, it appears that the bigger the business entity, the greater the zeal for full LGBT participation. The nature of this support is an issue for African Americans, who have a strong socially conservative tradition and are sparsely represented in gay activism. When Whittney Murphy, the black lesbian student body president at Christian Theological Seminary, pleaded for full identity under the law at a January LGBT rights vigil at North United Methodist Church, she addressed a crowd of roughly 400 that was 100 percent white.
“I tell my LGBT friends, ‘You’re not involved in African American issues—schools, lack of affordable downtown housing,’” Bohannon says. “Middle- and upper-middle-class folks are driving the LGBT movement. They didn’t grow up with racial and economic issues.”
Rainbow Diversity
Chris Douglas agrees the LGBT leadership needs more diversity, but adds that it reflects Hoosier routine. “I go to a business meeting, a political meeting—it’s all white males.”
Access, then, isn’t as simple as court decisions and statute enactments. That’s true of the religious resistance to it as well. “It’s important to understand that progress in Indiana also has come from faith-based communities,” Douglas says. “I think the pressure back is not religious versus secular so much as intolerance versus tolerance, acceptance versus rejection.”
Robert Katz, a professor at Indiana University Robert H. McKinney School of Law who called for stronger anti-discrimination language in legislative testimony on RFRA in 2015, presents this perspective: “The best case scenario, the short to intermediate long-term strategy, is to find gentle means of persuading religious conservatives that good citizenship means recognizing the legal validity of same-sex marriage, treating them as equal in the eyes of civil law, even if they think it is a grievous wrong in the eyes of God and teach their children this.”
BRVA President Kent Springer is among those who find a different lesson in this latest battle for civil rights. “It always comes down to things like not wanting to bake a cake for a same-sex wedding because it goes against your religious beliefs,” he says. But no one objects to baking a wedding cake for a Jewish couple who don’t believe Jesus is the Messiah, he notes. “It’s gay people they have a problem with. It’s not religious.
“I wish we could truly separate religion from state government,” Springer says. “I don’t understand what drives the opposition. Is it fear of the unknown? How are they going to lose their religious freedom? I don’t understand. People I know who are truly religious, they don’t hate.”
Dan Carpenter is an Indianapolis native, a long-time Midtown resident, a survivor of 36 years at The Indianapolis Star, and the author of four books. A version of this article appeared in the February/March 2016 issue of the magazine.
