The verdict on Gov. Bobby Jindal’s “marriage and conscience” executive order is in, and it’s a two-parter.
Legally speaking, the order — which Jindal issued hours after a state legislative committee had shelved a controversial bill aimed at protecting businesses that refuse to serve same-sex couples — does very little.
In terms of Jindal’s image and that of his state, it does plenty. And none of it’s good.
First, the legalities.
Jindal cannot unilaterally make law; that power lies with the legislative branch. Even in emergencies and other rare instances in which a governor is granted extraordinary powers, courts have ruled that he cannot “enact substantive law.”
So Tuesday’s executive order, which purports to accomplish the vanquished House Bill 707’s intent, basically relies on existing law and court decisions to justify its mandate that the state not deny government licenses or benefits to someone who acts “in accordance with his religious belief that marriage is or should be recognized as the union of one man and one woman.” Among the citations is the U.S. Supreme Court’s Hobby Lobby decision expanding the definition of “person” to include corporations.
“I don’t expect this executive order to change a single administrative decision in the executive branch,” said Terry Ryder, who served as executive counsel under Gov. Kathleen Blanco and special counsel for both Jindal and Gov. Mike Foster. If it does, he said, “it would likely be ruled to exceed the governor’s authority.” Because the order directs agencies to look at the specific laws cited, he said, it may cause an official to consider something he or she might not have otherwise; still, if the executive order conflicts with established law, law wins out.
The measure’s real impact, rather, is in the message it sends and how it makes its author look.
Jindal, of course, hopes the order will bolster his standing among religious conservatives who vote in the presidential primaries and caucuses. It can’t be a coincidence that it came during the same week in which he announced his presidential exploratory committee and unveiled his political group’s first Iowa ad, which focused exclusively on his crusade to “defend religious liberty.”
If Jindal hoped to emerge looking tough, though, he looks weak instead. The governor had singled out the bill as a top legislative priority, yet the Republican-dominated Legislature didn’t lift a finger to help him get it passed. The House Civil Law Committee vote to return it to the calendar was a decisive 10-2 bipartisan drubbing.
He also looks mean-spirited and cynical. By claiming the legal expectation that florists and caterers serve everyone amounts to “discrimination” and “bullying” — in other words, by insisting that government tolerate intolerance — Jindal has appropriated the language used to describe those who are too often truly, cruelly victimized. Has he ever once spoken up for them? Not that I’ve heard.
He looks hypocritical. The governor regularly bashes President Barack Obama for bypassing Congress and issuing executive orders. Now he’s seeking to create a new protected class, even though he earlier refused to extend Blanco’s executive order forbidding discrimination or harassment by state government on the basis of sexual orientation, among other things. Jindal said at the time that discrimination was already prohibited under state and federal law and that he didn’t want to create additional special categories.
And he looks downright disdainful of his state, like someone who doesn’t care one lick that his actions could cause financial harm and paint Louisiana as a hostile environment. Already, a major tech group planning a meeting here and several lawmakers from New York state have raised concerns over traveling to Louisiana. Tourism and economic development officials, and big businesses such as IBM and Dow Chemical, had sought to head off the legislation for the same reason.
“This action seems determined to destroy our business climate,” a visibly angry state Sen. Karen Carter Peterson said on the Senate floor afterward. Yes, Peterson chairs the state Democratic Party, but as the committee vote showed, frustration crosses partisan lines. And so does the question with which she punctuated her speech.
“When is enough gonna be enough around here?”