Back in 2000, I wrote a column for the Indiana Word about the use of legislation to “send a message.” Following passage of the so-called “Religious Freedom” bill, it seemed appropriate to revisit the points raised.
After all, hateful Hoosiers who want to discriminate against their LGBT neighbors can already do so with impunity–Indiana’s civil rights laws do not protect gay citizens. Same-sex marriages may be legal in Indiana, but gay Hoosiers can still be denied services, refused employment and/or fired just for being gay. So to the extent that SB 101 is aimed at permitting discrimination against members of the gay community, it’s totally unnecessary. Unless, of course, our lawmakers want to “send a message.”
As I pointed out back in 2000:
With all due respect to all the folks who want to use the General Assembly instead of Western Union, such an approach to lawmaking is wrongheaded and dangerous for a number of reasons.
1.) It trivializes the law. When the legislature passed measures to criminalize private sexual behavior, for example, no one seriously believed that the local constable was going to come into every bedroom to check for violations. Such measures were justified because they “sent a message.” And indeed they do, which brings us to the next problem. See Paragraph 2.
2.) Such laws send different messages to different people. Before they were struck down, sodomy laws “sent a message” to gays that they are second-class citizens. Laws making women submit to multiple “counseling sessions” or vaginal probes in order to obtain abortions signal legislative contempt for women, not respect for life. See Paragraph 3.
3.) They promote pandering. When lawmakers know perfectly well that they are engaging in a meaningless gesture, the urge to satisfy extremist constituencies can easily be justified; after all, where’s the harm? Indiana, like many states, passed the Defense of Marriage Act to “send a message” that satisfied the Christian Right; lawmakers defended their actions to rational folks by pointing out, quite correctly, that the law hurt no one, because at the time there was no gay marriage to refuse to recognize. It was a model example of “Law as an Empty Gesture.” Of course, to gay citizens, it sent a different message. See paragraph two.
4.) “Messages” inconsistent with Constitutional values distort the balance of power in our legal system. When this original column was written, in 2000, lawmakers had just authorized posting the Ten Commandments in public buildings. Of course, that was patently unconstitutional, and lawmakers knew it. When I asked a State Representative why he and others were voting for a measure they knew would be struck down, his answer was candid: “We all have to go back and justify ourselves to the voters in Mayberry. Let the Courts take the heat.”
When lawmakers engage in this sort of unethical game playing, it feeds hostility to the judicial system, which must protect individual rights by voiding such improper and cynical measures. That hostility further erodes respect for law, and that brings us full circle. See Paragraph 1.
In the case of SB 101, we might add another likely consequence: although the measure doesn’t change Indiana laws that apply to gay folks, it may well encourage “religious” refusals to serve or employ Muslims or blacks or other Hoosiers who currently are protected under the state civil rights laws. It will almost certainly spawn expensive litigation. And it seems likely to cost Indianapolis (whose citizens by and large opposed the measure) several conventions and the economic benefits that those conventions bring.
Because the General Assembly did, indeed, “send a message.” And a lot of people received it.
