lgbt-flag.jpg
(File Photo)
LANSING, MI — Forty years after East Lansing became the first city in the United States to ban discrimination against gay residents, Mayor Nathan Triplett is worried that the state may undermine those protections.
A proposed Religious Freedom Restoration Act, approved last week by Michigan's Republican-led House, would let individuals or businesses seek exemptions to government regulations they feel substantially burden their sincerely held religious beliefs.
For East Lansing, that could provoke challenges to the city's anti-discrimination ordinance, or any number of other generally applicable laws.
“This legislation, as drafted, essentially creates a cause of action against any governmental entity and will expose us to the quite-likely possibility of having to use scarce taxpayer resources to defend against frivolous claims against the city,” said Triplett, a Democrat.
East Lansing is one of 33 Michigan cities with a fully inclusive LGBT non-discrimination ordinance, according to Triplett, who said language first adopted by his city has been used as a model for local governments across the state.
Michigan lawmakers have long discussed adding statewide protections for gay residents, but the latest business-backed effort stalled last week amidst a dispute over transgender-specific language.
Triplett called the legislative failure a setback for the state and said the RFRA, if passed, “will undermine some of these ordinances which, as a result of the Legislature’s inaction, will be the only protections that LGBT residents have from discrimination.”
With the LGBT bill stuck in committee, opponents are calling the proposed RFRA a "license to discriminate," echoing language used last year in Arizona during a contentious debate over expanding that state's existing religious freedom law.
But those characterizations are "way overblown," according to University of Virginia School of Law professor Douglas Laycock, a legal scholar and religious liberty advocate who is supporting the Michigan bill.
“It hasn’t happened anywhere else — not at the federal level or the 19 states that have these kinds of laws,” said Laycock, who graduated from Michigan State University and serves on the law school's board of trustees. “The courts have generally held that preventing discrimination is a compelling government interest.”
The proposal calls for a two-part legal test to determine if the government had a compelling interest for enacting a statute that limited religious liberty and used the least restrictive means possible to achieve that goal.
The Michigan Constitution guarantees religious freedom, and Laycock said the proposed legislation would largely codify constitutional law as it has already been interpreted, preventing courts from altering that interpretation in the future.
The federal RFRA, signed into law by President Bill Clinton in 1993, was motivated by a Supreme Court decision allowing the state of Oregon to deny unemployment benefits to Native Americans who used peyote as part of a religious ritual.
Fast forward 20 years, and Hobby Lobby used RFRA when it claimed a religious objection to a provision in the Affordable Care Act requiring it to provide no-cost access to specific types of contraceptives.
The Supreme Court, in its Hobby Lobby decision, fundamentally expanded the scale and scope of RFRA, according to Elliot Mincberg, general counsel and legal director of People for the American Way, a progressive group based in Washington D.C.
“Our concern is, based on Hobby Lobby and some language in the Michigan bill, that it’s quite likely to be applied to try to exempt business and others from obeying anti-LGBT protections,” he said.
Mincberg was part of a coalition that pushed for and helped draft the federal RFRA in the early 90s, but he is now urging Michigan to reject its own version.
He argued that the Supreme Court erred by treating the for-profit company as a person and finding that the government imposed a substantial burden on the owners' religious beliefs -- as opposed to the exercise of those beliefs.
The Hobby Lobby decision turned RFRA from a "shield" into a "sword" that could potentially “puncture” other laws, Mincberg said, including LGBT non-discrimination ordinances.
Justice Samuel Alito, writing for the 5-4 majority, said that RFRA should not be used to excuse discrimination as a “religious practice to escape legal sanction,” but Mincberg noted that the section referenced only racial discrimination, not LGBT policies.
Nationally, a handful of high-profile cases have tested the interplay of religious freedom laws and LGBT anti-discrimination protections.
In one case, an Albuquerque photographer refused to work at a same-sex commitment ceremony. The New Mexico Supreme Court ruled that the photographer violated the state’s anti-discrimination law and that the state RFRA did not apply because the government was not a party. The U.S. Supreme Court decided not to hear the appeal.
“There aren’t people going around saying, for religious reasons, I won’t serve gays or I won’t serve blacks,” said Laycock. “The only cases that actually arise are about (same-sex) weddings.”
Laycock, who also defended the Arizona bill that was ultimately vetoed by Gov. Jan Brewer, said he believes that Michigan should move forward with the proposed RFRA and the statewide gay anti-discrimination measure.
“They both need protections. They’ve both got people out to get them,” he said. “A lot of folks on the left and gay rights advocates think conservative Christians are evil terrible people, and a lot of conservative people think gays and lesbians are doing awful and terrible things.”
The Michigan bill mirrors the federal RFRA but includes an additional provision indicating that it "shall be construed in favor of broad protection of religious exercise to the maximum extent permitted."
That language could tip the scales in court, according to the Michigan Department of Civil Rights, which has long urged the state to adopt LGBT anti-discrimination protections and expressed concerns with the proposed RFRA last week.
"We believe government should, to the greatest extent possible, accommodate the religious beliefs and practices of each of its citizens," Deputy Director Leslie Fritz said in written testimony. "However, a religious accommodation can never be used to justify harming the rights of others."
While legal scholars may disagree on potential application of RFRA, Fritz suggested one way to minimize confusion: An amendment, modeled after a Texas version, clarifying that the act would not trump anti-discrimination laws.
“This simple amendment would ensure that no civil rights protections are weakened, intentionally or unintentionally, by passage of this bill,” she said.
Rep. Jeff Irwin, D-Ann Arbor, proposed a similar amendment on the House floor. It was rejected before the bill advanced to the Senate in a straight party-line vote.
House Speaker Jase Bolger, R-Marshall, disputed the "license to discriminate" charge when introducing the religious freedom proposal last week, and a spokesperson on Tuesday attempted to rebuff other "wild claims" being made and shared on social media.
“Governments always have sufficient justification to prohibit physical violence, prevent discrimination based on race, ethnic origin, or sex, and protect public health,” said Ari Adler. “Suggestions that people will suddenly be able to ignore existing laws are nothing more than scaremongering tactics without any basis in reality.”
The upper chamber has two weeks to consider the measure before the so-called lame-duck session comes to an end.
Jonathan Oosting is a Capitol reporter for MLive Media Group. Email him, find him on Facebook or follow him on Twitter.