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The Law and Public Opinion

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Dr. Raymond Scheele and Dr. Joseph Losco
Bowen Center for Public Affairs

“Public Opinion is always in advance of the law.”   –John Galsworthy, Nobel Laureate, 1932

Indiana state elected officials may not be aware of John Galsworthy or his quote.  However, the signals are clear that there would be a negative public reaction to the passage of the Religious Freedom Restoration Act (RFRA).  One such signal was the private, behind-closed-doors ceremony on March 26 when Governor Mike Pence signed the law.  The Indianapolis Star reported that the witnessess were “supportive lawmakers, Franciscan monks and nuns, orthodox Jews, and some of the state’s most powerful lobbyists on conservative social issues.”   The Governor was elated with his bill-signing, but his joy and that of his closed-room supporters dissolved quickly when public outrage against the law surged over the next 72 hours.  The widespread outpouring of dissent clearly was of a magnitude much greater than the Governor and the Republican leaders expected.  What was billed as a law protecting religious beliefs was quickly viewed as a discriminatory act against gays and same sex marriages.

Forecasting the support or opposition of a public policy relies on several factors.  The GOP caucuses of the Indiana General Assembly control overwhelming majorities in each chamber.  Along with such control comes political contributions, much of which are spent on public opinion surveys in representative and senate districts.  These surveys can “pretest” the response to issues.  Clearly the public opinion polling by the majority caucuses failed to detect the huge dissent against RFRA.

Other forecasting tools, however, were available and they pointed toward the magnitude of dislike for the Act.  In 2013, the Hoosier Survey with WISH-TV in Indianapolis and the Bowen Center for Public Affairs at Ball State University detailed the findings that 58% of adult Hoosiers were opposed to a state constitutional amendment banning gay marriage.  That same scientific survey showed that even Republican identifiers were lukewarm toward such an amendment, with just over half (54%) supporting the effort.  Democrats, on the other hand, opposed the amendment at the rate of 77%.  These figures in a state that is viewed as a Republican bastion, caught the attention of the media throughout the nation.  The constitutional amendment failed in the legislature.  In that case, public opinion, was, indeed, in advance of the law.

While the bill was being debated, it is perplexing that legislative leaders apparently did not have scientific polling data allowing them to ascertain whether or not the opposition was gaining more strength or, perhaps, fading.  But even if the majority party did not have recent polls, there are other ways legislators can detect public opinion.  One such way is by reaching out to “opinion makers” in their communities.  These are the men and women who are in positions of influence in their localities.  However, with the withering away of the political party system, the influential party leaders in the counties and districts find themselves increasingly isolated from their own state elected officials.  Nothing shows this more than the statements of the longtime Allen County Republican Chairman, Steve Shine, who stated publicly to the Fort Wayne Journal Gazette that he found the RFRA “repugnant and contrary to that which I have tried to accomplish within the Allen County GOP for the past 22 years.” Other local leaders who pay close attention to public opinion, such as mayors and county commissions, apparently were not consulted to any major extent by the state legislators who were elected to reflect the views of their fellow citizens.

The weakening of the local political parties over the past generation and the breakdown in communication on issues between legislatures and local officials has created a huge vacuum in providing up-to-date information to legislators about what a majority of citizens want.

RFRA has shined a bright light on the weaknesses of our political system in our democracy.  It will hopefully bring into focus the need to bring laws into closer conformity with public opinion, even if public opinion always will remain in advance of the laws.

 

(For a detailed look at public opinion in Indiana over the years by means of the annual Hoosier Survey, visit the Bowen Center website at www.bowencenterforpublicaffairs.org).