Clock ticking as Religious Freedom Restoration Act awaits action in Michigan Senate

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The Michigan Capitol in downtown Lansing.

(Jonathan Oosting | MLive.com)

LANSING, MI — The fate of a House-approved Religious Freedom Restoration Act remains uncertain in the Michigan Senate, which is scheduled to meet just four more times this week before ending the 2013-14 session.

Majority Leader Randy Richardville, R-Monroe, said Thursday that the Senate may take up the measure “if we have time.” And while he indicated there may be appetite among his fellow Republicans, he also made clear the upper chamber is looking at a pretty full plate.

“That’s a relatively new thing to our caucus, so I’m not going to let things leapfrog to the front of the agenda, the prioritized agenda, unless I get a clamoring for it,” Richardville said.

Supporters say the legislation would provide Michigan citizens with religious liberty protections offered by the federal government and 19 other states.

But critics fear the bill, which was introduced alongside a gay rights proposal that stalled in committee, could be used to challenge local non-discrimination ordinances or any number of other state or municipal laws.

Democrats have sent signals that Senate action on the religious liberty legislation could jeopardize good will as both parties continue to seek common ground on other issues, including a long-term road funding deal.

“I don’t think there’s any ambiguity in how I feel on that particular bill, and I also don’t think there’s a great deal of interest in moving that in our chamber at this juncture,” Senate Minority Leader Gretchen Whitmer, D-East Lansing, said Friday.

“So we are prepared for a fight if that’s where it goes, but at this point I don’t think that’s anywhere on the horizon.”

Outside the Legislature, the fight has already begun. More than 57,000 people have signed an online petition opposing the religious freedom bill, and protesters are planning to gather outside the Michigan Capitol on Tuesday.

The Michigan Catholic Conference, meanwhile, has scheduled a press call with University of Virginia law professor Douglas Laycock, a religious liberty scholar who offered support for the measure in written committee testimony.

RELIGIOUS LIBERTY CLAIMS AND CASES

Contrary to what you may have heard on social media, Michigan's proposed Religious Freedom Restoration Act (RFRA) would not automatically exempt medical personnel from treating a gay person in an emergency situation.

That's one of many "wild claims" that House Republicans are fighting after approving the measure two weeks ago and sending it to the Senate for further consideration.

“Suggestions that people will suddenly be able to ignore existing laws are nothing more than scaremongering tactics without any basis in reality,” said Ari Adler, spokesperson for House Speaker Jase Bolger, R-Marshall.

A Michigan RFRA would allow religious objectors to seek exemptions to state or local laws, but they’d have to make their case in court — not in the back of an ambulance. A government would have to prove it had a compelling interest for a law and that it sought to achieve that public policy goal in the least restrictive way possible.

The national American Civil Liberties Union, which is fighting new RFRA proposals in Michigan and a handful of other states, says there are several real-world examples of religious claims that should give lawmakers pause.

In Utah, for instance, a fundamentalist Mormon church leader recently used RFRA to avoid testifying in a case involving alleged child labor violations, according to ACLU advocacy and policy counsel Eunice Rho.

“The way I like to think about RFRA is it basically opens up a legal challenge to every policy or law on the book unless the law specifically says otherwise,” said Roh, who suggested that Michigan could add language to the proposed RFRA ensuring that it could not be used to undermine certain types of laws.

Here in Michigan, the state ACLU has also questioned medical care decisions made by hospitals with religious affiliation.

The Supreme Court’s recent decision in the high-profile Hobby Lobby contraceptive case has thrust the federal RFRA back into the national spotlight and prompted new questions about potential application and for-profit business exemptions.

But RFRA litigation has been relatively rare, and rarely successful, in other states with similar laws, according to Christopher C. Lund, an associate law professor at Wayne State University in Detroit.

"So far, they are the dog that has not barked," Lund wrote in a 2010 research paper that examined RFRA case law across the country.

Idaho, for instance, adopted a state level RFRA in 2000. Over the course of the next decade, state and federal courts decided just four cases that involved claims under the Idaho RFRA.

Florida enacted a religious freedom law in 1988. There were about 20 related decisions in that state over the next dozen years, according to Lund’s paper, but just one was RFRA claim was successful.

In that case, a Florida man won an exemption to a city ordinance that had prohibited him from feeding homeless residents in a public park. A district court found that the regulation infringed on his religious rights.

The ACLU is currently seeking a RFRA exemption to Army regulations for a Sikh student at Hofstra University in New York who wants to enlist in the Reserve Officer Training Corps program but does not want to shave his beard, remove his turban or cut his hair.

“State RFRAs have done a lot of very important things for religious minorities in this country,” Lund told MLive. "If we're concerned about for-profit businesses bringing religious exemption claims, what we can do is define the definition of person in the Michigan RFRA to only include natural persons and non-profit corporations."

RFRA claims involving LGBT anti-discrimination laws have also been relatively rare. In one recent case, the New Mexico Supreme Court ruled against a photographer who refused to shoot a same-sex commitment ceremony. Lower courts had rejected the photographer's RFRA argument.

“The religious claim there loses, and it loses at every step of the process,” said Lund. “Twelve judges end up hearing the case, and they all end up voting against the religious claim. There’s generally a compelling government interest in preventing discrimination.”

But critics fear the Michigan RFRA and similar measures proposed in other states are part of a coordinated effort to fight the national trend towards LGBT equality through marriage laws and non-discrimination protections.

“We’re anticipating an increase in such claims, and this law would allow that to happen,” said Roh. “…I think Michigan is part of a national fight, and right now, it’s the most prominent and dangerous.”

Jonathan Oosting is a Capitol reporter for MLive Media Group. Email him, find him on Facebook or follow him on Twitter.

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