Blog 64. Jeb Bush: Israel and Indiana

Although we have indicated our tentative support for Jeb Bush to be the Republican nominee, it is still early days: Bush has yet to articulate his position on several major issues and the dynamics of the primary campaign, including the debates among the candidates – sometimes entertaining and sometimes dismaying – lie well down the road. We are in agreement with Bush on the two issues with which he has been most clearly identified and most sharply criticized from the right – immigration reform and Common Core. More generally, we have favored Bush for reasons suggested in a March 30 New York Times analysis, “Jeb Bush and Scott Walker Point G.O.P. To Contrary Paths.” A principal point was Bush’s distaste for paralyzing polarization:

“I’m tired of the partisan divide where nothing happens because we’re just in this massive food fight,” Mr. Bush said this month in South Carolina. He added, “People that want to consider running for office have to stop preying on people’s fears and stop dividing us and start forging consensus so that we can move forward.”

Kevin Madden, a Republican strategist, said Mr. Bush “is running a general election right from the beginning because he doesn’t want to get to a place where the nomination is not worth having.”

Although we are attracted to Bush and his approach, we noted at the outset that there were issues on which we disagreed, and we expected that there might well be more as time went on. When such matters arise, we feel no compunction in commenting on them since expressing contrary opinions is much of what being a RINO is all about. As it happens, we found two recent comments by Bush to be disquieting for reasons we will try to explain. The first involved Israel, a speech by James Baker, reactions to the speech and Bush’s response to the reaction. The second involved Indiana’s Religious Freedom Restoration Act (IRFRA), attacks on the IRFRA, and Bush’s defense of that act.

Israel, James Baker and J Street.

On March 23, James Baker, a former Secretary of State under George H. W. Bush, gave a keynote address to J Street, an organization which supports Israel but which has been highly critical of Prime Minister Netanyahu. In the address, Baker added his own criticism, provoking attacks not only on himself but on Bush. We have been unable to find a text of Baker’s address, but a video is available here.

In the address, Baker spoke eloquently of his respect and admiration for Israel and of America’s unbreakable commitment to Israel, but he also expressed some criticism of Prime Minister Netanyahu. And although it occupied only seconds out of a 25 minute speech, it became the center of media attention. As excerpted in The New York Times:

In his speech on Monday night, Mr. Baker said he had “been disappointed with the lack of progress toward a lasting peace” between Israelis and Palestinians and recalled that Mr. Netanyahu had once spoken out in favor of a Palestinian state as part of an eventual solution.

“Since then, his actions have not matched his rhetoric as settlement construction has continued unabated, and last week, under intense political strain, he announced his opposition to a two-state solution,” Mr. Baker said. “Now even though he attempted to back away from his statement two days after, I think we would all agree that the short-term prospect for such a solution obviously remains quite bleak.”

The reaction from the right was immediate and harsh, not only for the fact that Baker had deigned to criticize Netanyahu but that he had done so before a liberal or “left-leaning” group. Bush, who had recently named Baker as one of his senior foreign policy advisers, beat a hasty retreat. The next day, a Bush spokesman stated that, “While he respects Secretary Baker, he disagrees with the sentiments he expressed last night and opposes J Street’s advocacy.” On Thursday, he went further, saying in an interview that, “I did not believe it was appropriate to go speak to J Street, a group that basically has anti-Israeli sentiments.” The latter statement is simply wrong, conflating support for Israel with unswerving support for Benjamin Netanyahu. And we regret that such conflation has become increasingly prevalent among Republican leaders. For example, as William Kristol, Editor of the conservative Weekly Standard put it, referring to Netanyahu by his nickname, “Bibi would probably win the Republican nomination if it were legal.”

Apart from Baker’s heresy of criticizing Netanyahu, it is not clear what particular disagreements conservatives generally – or Bush in particular – have with his views. Substantively, Baker expressed his support for a two state solution and a resolution on the basis of a “land for peace” deal involving land now occupied by Jewish settlements on the West Bank. A two state solution had been expressly called for by President George W. Bush and, as Baker pointed out, the land for peace concept had been supported by every American administration since 1967. If Bush or other Republicans propose to depart from those principles they will need to come forward with an explanation of the alternative that they favor.

Baker also rejected Netanyahu’s categorical objection to the negotiations with Iran. Baker supported the idea of negotiations but cautioned that a bad deal would be worse than no deal and also urged that Congress be given the opportunity to vote on any agreement even if its approval were not legally required. We watched the entirety of Baker’s speech and commend it to readers of RINOcracy.com. We believe that it presents a thoughtful and constructive discussion, and the only fault that we might find is that it seemed to place with Prime Minister Netanyahu the entire responsibility for the current deterioration in relations between the United States and Israel. In our view, heavy-handedness on the part of both the Administration and President Obama personally have also played a major part in that downward spiral. But that is a discussion for another day.

Bush and the Indiana RFRA

We believe that, with one exception, the IRFRA serves a useful purpose, as does the federal RFRA. (We discussed the federal RFRA and the writer’s personal history with related matters in Blog No. 22, dated December 8, 2013.) That usefulness, however, disappears in the potential application of the law in precisely the area that has sparked the present controversy: treatment of members of the LGBT community in general and in particular discrimination with respect to same-sex weddings. Even in that area, it appears that the Indiana RFRA is more important symbolically than for the substantive effect it would have on either the LGBT community or those who wish to avoid doing business with them. Even if one shared the viewpoint of supporters of the law in that respect—and we do not—it seems clear that they have failed to show a great need for the law. Conversely, it appears that opponents of the law may have exaggerated its impact.

To begin with, it should be understood that the IRFRA does not directly address discrimination or anti-discrimination ordinances. Rather it provides a possible defense to a claim of discrimination that is barred by a local ordinance. In order to successfully invoke the IRFRA in such a defense, it is necessary to establish both that the ordinance in question is a substantial burden on the exercise of religion and that it does not serve a compelling governmental interest. With that in mind, a good place to start is with the statement by sponsors of the bill that, according to The New York Times, demonstrated that the law was driven by bigotry:

SB 101 will help protect individuals, Christian businesses and churches from those supporting homosexual marriages and those supporting government recognition and approval of gender identity (male cross-dressers).

Here are just 3 examples:

• Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!
• A Christian business should not be punished for refusing to allow a man to use the women’s restroom!
• A church should not be punished because they refuse to let the church be used for a homosexual wedding!

In the case of wedding vendors (florists, bakers and photographers), the respected column PolitiFact made a comprehensive survey of such vendors two years ago and turned up a handful nationwide who were, or might be subject to legal sanction for discrimination in denying their product or service. David Brooks’s column in The New York Times on March 31 cited the case of an Oregon baker found guilty of discrimination who is reportedly subject to a fine of $150,000. Such a fine would seem to be grossly disproportionate but the actual amount of the baker’s fine does not appear to have been determined.

The PolitiFact survey did not find any aggrieved wedding vendors in Indiana and we are not aware of whether any such exist. The hypothetical Indiana wedding vendor who is faced with a sanction for discrimination might well find no relief from IFRA even if he were willing to undertake the effort and expense of seeking it. Specifically, the vendor would have to prove not merely that providing the requested product or service was personally distasteful but that “his exercise of religion has been substantially burdened.” In this connection, the vendor’s adversary (private or governmental) would doubtless point out that providing a cake, or flowers or even photography, does not constitute “participating” in a homosexual marriage. Finally, the vendor would have to overcome the powerful argument that prevention of discrimination is indeed a ”compelling governmental interest.”

The other, rather bizarre, examples cited by the bill’s supporters seem even less persuasive. While we have not made an exhaustive search, we are unaware of any actual instances of a church being punished for “refusing to allow a man to use the women’s restroom” or refusing “to let the church be used for a homosexual wedding.” If anything like such instances exist we are confident that they could be resolved without resort to the IRFRA.

Given that the application of IRFRA is likely to be limited, some have suggested that the law may have been intended not so much to protect wedding vendors or other individuals but to serve as a protest against same-sex marriage. That, however, may be too narrow a view of the law. While the Times had a point in arguing that the statement of the IRFRA’s sponsors appeared to be evidence of bigotry, the Times ignored the fact that the the law had other purposes unrelated to sexual orientation or same-sex marriage. Those purposes were discussed in some detail in a letter signed by an eminent scholar, Douglas Laycock, who joined 15 other distinguished academics in writing to support the proposed law. The Laycock letter indicated that some of its signers favored same-sex marriage while others did not, but the central focus of the letter was not on the impact of the law on anti-discrimination ordinances. Indeed, the principal Indiana case discussed in the letter involved a church’s challenge to a condemnation proceeding. The writers did note the concern that the law might be invoked in an to attempt to block the application of anti-discrimination ordinances, but observed that such attempts would be very likely to fail: “Courts generally believe that anti-discrimination laws serve compelling government interests, and nothing in the proposed legislation would change that.”

The weakness of the Laycock analysis was that it essentially acknowledged the possibility, however small, that the law might be used to defeat a discrimination claim. In the current climate, that possibility—fueled by the rhetoric of some of the bill’s supporters, was sufficient to set off a political firestorm. The firestorm was a product of an unusual coalition between activist supporters of gay rights and businesses determined to get on the right side of the issue. The conflagration was sufficient to force Indiana’s Governor, Mike Pence, who had attempted to defend the law in a rather lame television appearance, to reverse his field and urge the law to be “fixed;” leaders of the Indiana legislature agreed to undertake the task promptly. Then the Arkansas Governor, Asa Hutchinson, who had indicated that he would sign a similar law, now asked his legislature to recall it and to amend it to conform more closely to the federal RFRA. In short, even if the importance of IRFRA is largely symbolic, symbols are important and nowhere more so than in politics.

In the meantime, however, Jeb Bush had leapt into the fray, becoming the very first of several Republican hopefuls to defend the IFRA and Governor Pence (before Pence’s change of position). In an interview, Bush marched boldly, and in our view mistakenly, out on a limb:

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….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.

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.

We find Bush’s comments troubling on several counts. First, they indicated that he did not actually understand what the law provides. (It does not require the government “to have a level of burden to be able to establish that there’s been some kind of discrimination.”) Second, they seemed to suggest that he would find that discrimination is acceptable so long as it is done in an exercise of faith. Finally, it is a nettle that Bush did not need to grasp and for the grasping of which he may well pay a political price. The price will not be paid in the primaries, where it might even improve his standing with evangelical Christians, but it might well be damaging in the general election. A report in The Washinton Post indicated such a concern on the part of some Republicans:

Vin Weber, a former congressman and Bush ally, said he is concerned about the general-election implications and whether the Indiana debate damages the Republican brand with moderate and independent voters. “Everyone likes Mike Pence, and they’re concerned about the primary politics of the marriage issue, but I’m a little worried they’re not thinking of the broader perceptions of the party,” he said.

According to the April 1 “First Draft” newsletter of The New York Times, Bush had that day, at a Silicon Valley event, endorsed the idea of Indiana amending the law in some fashion and edged away from his previous comments at least in tone if not in substance. We think he has more edging to do.