jase bolger.jpg
House Speaker Jase Bolger, R-Marshall
(File Photo | MLive.com)
LANSING, MI — If Michigan’s Republican-led Legislature does amend state law to protect gay residents from discrimination, leadership may also move to affirm religious freedom in a separate bill.
House Speaker Jase Bolger says businesses should not be able to fire employees for being gay but is not supporting anti-discrimination bills introduced last week by Democrats. He's trying to find what he calls a "necessary balance" between gay rights and religious liberty.
Bolger is exploring the possibility of pairing an Elliott-Larsen Civil Rights Act amendment with a Michigan version of the federal Religious Freedom Restoration Act (RFRA), which aims to limit laws that would substantially burden a person’s free exercise of religion.
“I believe our society’s got to get this right, and we’ve got to get this right more than we’ve got to get it now,” Bolger, R-Marshall, told MLive. “That right, for me, is one that respects and protects individual freedom and religious liberty. It’s just so much easier to say than to do.”
Updating Elliott-Larsen would allow Michigan residents to file a civil rights complaint or lawsuit if they were the target of discrimination in the workplace, housing market or place of public accommodation because they are gay.
But a Michigan RFRA might allow business owners to assert a right to exercise their “sincerely held religious beliefs,” and judges would use a “strict scrutiny” test to consider the merits of individual cases.
Conservative U.S. Supreme Court Justice Samuel Alito, in a recent majority opinion in the controversial Hobby Lobby contraception case, wrote that the federal RFRA does not "provide a shield for employers who might cloak illegal discrimination as a religious practice."
Bolger's goal, according to sources familiar with his thinking, is a legal framework that would prevent a Michigan business from firing someone who is gay or denying them service, unless that service involves a form of religious expression.
Take for example a New York family recently fined under that state's anti-discrimination law. They had reportedly agreed to rent out their farm for a lesbian couple's wedding reception, but refused to host the actual same-sex wedding ceremony in their home. Doing so, according to their attorney, would have been akin to "participating" in a ceremony at odds with their own religious beliefs.
“This is a difficult issue to imagine how to get right within the legislation,” said Bolger. “And so whether we do any legislation or not is not a conclusion that’s already made. The open question is, can we do legislation that matches what I’ve said is my standard, and matches what I believe our society needs to achieve?”
A business coalition of large employers and civil rights advocates began pushing the Republican-led Legislature to add sexual orientation and gender identity protections to Michigan law in May, and momentum continued to build when Republican Gov. Rick Snyder said he’d like lawmakers to consider the issue this fall.
The plan hit a speed bump this month when Rep. Frank Foster, R-Petoskey, delayed introduction of an Elliott-Larsen bill, holding off while Bolger contemplated a religious freedom component. Democrats, citing the need to start the conversation, re-introduced their own legislation without any Republican support.
“Amending the Elliot-Larsen Civil Rights Act to include the LGBT citizens of this state is decades in the making and long overdue,” said sponsoring state Rep. Sam Singh, D-East Lansing. “…As we continue to recruit talent and business to our state, we must show that Michigan values and protects all of our citizens from discrimination.”
All 50 House Democrats and the chamber’s lone independent signed on as co-sponsors. An identical bill is co-sponsored by 11 of 12 Democrats in the Senate. But Republicans run the show and will decide whether or not to introduce their own bills or put any others up for a vote, likely after the November 4 general election.
Polls indicate that a wide majority of Michigan voters support anti-discrimination protections for the LGBT community, but religious liberty remains a sticking point for some GOP lawmakers. Republicans are also discussing whether to include gender identity and expression protections for transgender individuals, a debate MLive will cover in greater detail on Monday.
Congress approved the federal RFRA with broad bipartisan support in 1993 and it was signed into law by then-President Bill Clinton, who said at the time that "government should be held to a very high level of proof before it interferes with someone’s free exercise of religion."
RFRA has proven controversial in recent years, however. The U.S. Supreme Court cited the act this June in a decision allowing Hobby Lobby and other companies with religious objections to opt out of contraception coverage requirements in the Affordable Care Act.
While the ruling frustrated many progressives, the majority opinion was "surprisingly good for gays," according to Slate Magazine, because Justices Alito and Anthony Kennedy both made clear that RFRA should not be used to excuse discrimination as a "religious practice to escape legal sanction."
Emily Dievendorf of Equality Michigan, an LGBT advocacy organization that helped organize the business coalition, noted that religious expression is already protected in the Michigan and U.S. Constitutions. While she’s curious to see what a Michigan RFRA proposal would look like, if it didn’t allow for discrimination, it would be preferable to an exemption within Elliott-Larsen itself.
“I think it’s unnecessary to restate any religious freedoms in Michigan law, but if that is a route Republicans choose to go, I think it could be unoffensive,” said Dievendorf. “I just think it shows a lack of understanding of the rights we already have.”
At least 19 states have adopted their own RFRAs since 1997, when the U.S. Supreme Court ruled that the federal version did not apply to states. They vary in scale and scope, but sources say any proposed Michigan RFRA would align most closely with the federal law.
Arizona, which does not have anti-discrimination protections for gay residents, has had a RFRA for years, but lawmakers generated national attention when they attempted to expand the scope of the law beyond the federal version. Critics said it would have given businesses a "license to discriminate" against gays, and Republican Gov. Jan Brewer ended up vetoing the bill.
State Rep. Jeff Irwin, D-Ann Arbor, pointed out that free exercise of religion is protected in the First Amendment and suggested that a Michigan RFRA could have unintended consequences in court.
“A RFRA will only create conflicts between religious beliefs and put the state in a position of determining which religious beliefs are bonafide and which religious beliefs are not acceptable,” he said. “We don’t want to go down that path.”
Michigan prisoners already enjoy some extra religious freedom protections under another federal law. The Religious Land Use and Institutionalized Persons Act of 2000, a follow-up to RFRA, has been cited in Michigan to ensure Muslim inmates have access to halal meals, for instance.
Shelli Weisberg of the American Civil Liberties Union, another partner group in the coalition, said state-level RFRA’s can be difficult and complicated. But a Texas version, she noted, includes specific language indicating that religious freedoms do not trump existing anti-discrimination protections.
“We’re always prepared for that discussion, and we have a great level of expertise,” said Weisberg, noting that the ACLU has a long track record of defending religious rights. “Speaker Bolger has been very generous working with the coalition, in making sure these discussions are open, and I don’t expect that to change.”
Former Rep. Mel Larsen, a Republican who co-authored the state’s 1976 anti-discrimination law, said he understands concerns about religious freedom but remains hopeful that leadership will take up some sort of gay rights amendment this fall.
“I said a long time ago that I thought they ought to introduce legislation on sexual orientation and have the debate and see where the votes are,” Larsen said this week. “It’s long overdue.”
Jonathan Oosting is a Capitol reporter for MLive Media Group. Email him, find him on Facebook or follow him on Twitter.