PRO Religious-freedom act would protect Michigan people of faith

This is an email Adler sent to journalists regarding the Michigan Religious Freedom Restoration Act. It is being published with his permission.

Opportunists have made wild claims about how the Michigan Religious Freedom Restoration Act (HB 5958) would allegedly undermine state laws protecting public health and safety, prohibiting discrimination and providing tax revenue for government programs. Such wild claims have similarly been made with respect to the federal RFRA (enacted in 1993), and all of the claims have been routinely rejected by federal courts. The federal RFRA does not apply to state and local governments, and that is why MiRFRA is needed today.

As with the federal RFRA, the MiRFRA would only require that a state or local government show a sufficient justification for its action when that action infringes on a person's sincerely held religious belief. As with the federal government, state and local governments always have sufficient justification to prohibit physical violence, prevent discrimination based on race, ethnic origin, or sex, and protect public health.

Suggestions that people will suddenly be able to ignore existing laws are nothing more than scaremongering tactics without any basis in reality.

Here, then, are the facts to counter the ridiculous, unsubstantiated and potentially dangerous claims being made on social media that the mainstream media has a responsibility to correct because it has a duty to the truth.

The MiRFRA, like its federal counterpart, provides no new rights to people of faith to refuse service to LGBT people or anyone else.

The MiRFRA, like its federal counterpart, is aimed at government action, not individuals. MiRFRA sets a balancing or threshold test, forcing the person filing the claim to prove they deserve protection due to a strongly held religious belief. The court would consider whether that belief has been restricted by government action, whether the restriction serves a compelling interest and whether there is a less-restrictive means for achieving the same compelling interest. A key component in all of this is that state and local governments always have a compelling interest in ensuring that laws and ordinances protecting public health and safety are rigorously enforced, and MiRFRA reinforces this interest.

The MiRFRA is patterned specifically on the federal RFRA that was signed into law by President Bill Clinton in 1993 and as applied by the federal courts since then. Some have compared the MiRFRA to Arizona’s bill, which went beyond the federal RFRA. Michigan’s proposed law should not be compared to Arizona’s proposed law, which was vetoed by that state’s governor.

The MiRFRA requires that a person or school show that a sincerely held religious belief clashes with a particular government action. For example, while a private religious high school could insist that its teachers be trained in teaching the church’s religious tenets, there is nothing in MiRFRA to suggest that the high school could refuse to hire a person to be a janitor solely because the person practices a different faith. Similar claims have been tried with federal and state RFRAs, and courts have routinely rejected them.

The U.S. Supreme Court severely restricted the scope of religious freedom under the U.S. Constitution in its Employment Division v Smith, 492 US 872 (1990). The MiRFRA, like the federal RFRA, would simply put in statute the same standard that existed in the U.S. Constitution for the first 190-plus years of the country’s existence and has specifically been protected at the federal level via statute since 1993.

The ACLU supported the federal RFRA when it was enacted in 1993 and helped draft the "Religious Land Use and Institutionalized Person Act" (which applies the federal RFRA standard to state prisons). It also is the ACLU that has sued federal, state and local governments throughout the country under federal and state RFRAs. RLUIPA and ensuing lawsuits brought by the ACLU is why, in Michigan, incarcerated felons have more protection of their religious freedoms than law-abiding citizens.

CON Some communities see religious-freedom bill as a setback for progress.

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Comments

Brian J Bridson
Mon, 12/15/2014 - 2:35pm
You're wrong. The Supreme Court cited the federal RFRA law in its terrible decision in Hobby Lobby. The plaintiff was permitted to ignore existing laws because of the sincerely held religious beliefs of a corporation. Other corporate plaintiffs are now lining up at the courthouse ready to express their deeply held religious beliefs to avoid compliance with a host of regulations.
Pure Reason
Tue, 12/16/2014 - 11:53am
No, you're wrong. If you actually read and understood the Hobby Lobby opinion instead of listening to politicians and commentators with agendas, you'd know that the Court in Hobby Lobby simply decided that Hobby Lobby was eligible to receive the same accommodation that the Obama administration provided for religious organizations. That accommodation exempts the religious objector from having to actually pay for certain birth control coverage, while nevertheless ensuring that female employees continue to have cost-free access to it (the cost of the medication simply shifts to insurance providers rather than employers). In other words, the result in Hobby Lobby was a win-win for employees and employers: the business didn't have to do something that violated their religious exercise rights, and the employees continued to have cost-free access to all types of birth control. And when religious employers try to go too far under RFRA, courts have consistently struck them down. For example: http://www.washingtontimes.com/news/2014/nov/14/challenge-obamacare-cont... If you actually do your homework, you'll notice that there isn't one case where RFRA has been successfully used to harm a third party. The discussion on RFRA needs to be injected with a heavy dose of truth.
Alex Jokay
Mon, 12/15/2014 - 10:57pm
The Hobby Lobby decision was a Trojan Horse. It was successful in that it got the Supreme Court to conflate contraception with abortion, which was its intended purpose, and just you wait to see what grows out of that. It didn't matter that there is no scientific basis to Hobby Lobby's assertions that contraception and abortion are one and the same; what matters only is that it's a sincerely held belief. The intellectual inferiority of certain races and the fairer sex is also a belief sincerely held by some but is without any scientific merit; will those ignorant-ass scumbags who think that way be entitled to act upon their beliefs in matters of employment? As for the ACLU, its support of the RFRA was with regard to native Americans being denied the use of hallucinogenic drugs as part of their traditional religious rituals. Apparently other religious groups see this as an excellent loophole for claiming bigotry as part of their religious rites (and rights). The RFRA was bad law in the first place and MiRFRA is an evangelical Christian effort to micromanage populations at the local level by pretending that fairness to all is discriminatory toward them.
dlb
Tue, 12/16/2014 - 10:32am
In what ways have the municipal and state gov't in Michigan infringed upon religious freedom? What is the need for this legislation? Civil rights acts with regard to race, disability, and gender were triggered by a long pattern of clear discrimination by private and public entities. Similarly, efforts to extend civil right protections to LGBT citizens are motivated by ongoing discrimination and harassment of LGBT individuals. What has been the pattern of harassment and/or discrimination against religious groups that necessitates this law?
Gail
Tue, 12/16/2014 - 11:10am
This Bill is extremely ill advised and has no basis for passing. Religious freedoms are already covered in our constitutional rights. This Bill has great potential for abuse in so many situations and the burden of proof does not fall to the person claiming these rights. Rather, it falls to the person who could potentially be the recipient of the abuse which opens up the opportunity for taxpayer lawsuits. Has solid, well researched and convincing evidence been brought to the legislature that religious rights are constantly assaulted in such a way that people’s personal freedoms are at stake? Very doubtful. It is a thinly veiled attempt for so called “personal religious beliefs” to trump other human and civil rights. The Senate should vote this down!
Duane
Tue, 12/16/2014 - 9:05pm
As one person has mentioned, I am not a lawyer nor have I portrayed one so any remarks are not supported by any legal knowledge of skills. Gail, It seems that you believe if a person has a concern about treatment based on religious preference that they should seek redress under the US Constitution. I wonder if that would require them to make a Federal case out of it. That would suggest you believe that religion related issue are only of Federal concern and should be ignored by communities, while other issues such as housing decrimination are for local courts to decide. By all indication there is a much higher threshold to filing a Federal case versus a local case, if that is so then are trying to deny religious issues local redress seems to be an attempt to deny an equivalent due process under the law. I am disappointed in the growth in laws to control people's attitudes, but I have become more fearful when people want to prevent equal access based disagreeing with a person's preferences.
Bob Balwinski
Tue, 12/16/2014 - 11:30am
I am not a lawyer nor did I play one on TV and did not sleep at a Holiday Inn Express last night so please excuse my naivete'. Since this law only affects government action, wouldn't all laws of public accommodation thus become possible points of religious conflict since these laws are acts of the government? As a hotel owner, couldn't I sue my local government for making me sell rooms to LBGT folks since my conservative and deeply held religious views make me disavow LBGT folks? Ari, you say this would not happen but the Hobby Lobby case gave a corporation......not a person.....the ability to defy a government law. Wouldn't many businesses be suing to get excused, if you will, from government laws based upon deeply held religious views? This is the slippery slope! However, in the absence of cries from the business world that they are being overrun by policies which challenge their deeply held beliefs, one wonders why this law is needed at all.
dlb
Tue, 12/16/2014 - 11:42am
Amen!
Duane
Tue, 12/16/2014 - 9:00pm
Bob, Please explain how the US Supreme Court helps someone/an entity defy a law. It seems to me that the role of the Court is to determine what is legal, so their ruling on Obamacare tells me that Hobby Lobby was within the legal boundaries of the ACA and the US Constitution. I can appreciate your disappointment with the decision, but I can not see how Hobby Lobby is defying the law. I wonder how you view actions by members of the executive branch that ignore or defy the languageletter of ACA such as specified dates, mandates, individual subsidies, etc. It would seem those are more clearly defying the law by doing them while fighting trying to prevent cases challenging their actions to proceed through the court system to be ruled on by the US Supreme Court.
Dave Assemany
Tue, 12/16/2014 - 3:07pm
How the hell does one decide if ones religious belief is sincerely held? Who gets to be the decision maker on that? We all know that Muslims and other non Judeo-Christian are going to come up on the short end of that stick.
Duane
Tue, 12/16/2014 - 8:57pm
Mr. Alder seems to talk at length about what the proposed legislation doesn't do and what it does do, but I don't see where he explains why we need it now. Why do we need this legislation now, what value does it provide to our communities, what value does it provide to the individual? My concern is that legislation in this vain is removing the value of conversation, of negotiation, of seeking common good. I believe in freedom of religion, I believe in the freedom of choice and what I worry about is how so many are using legislation to manipulate those freedoms.
Lindsey
Thu, 04/16/2015 - 4:48pm
Dear Mr. Adler, You have discussed this so-called Religious “Freedom” Act so lightly. You spent most of your article regarding the rights of religious organizations that you failed to regard so much about the rights of others. Religious freedom already exists in The Constitution, so this legislation is useless; except for one aspect. The difference between this law and the legislation that is already in place is that this law gives religious organizations the right to discriminate. It is such a shame that laws promoting discrimination are being drafted instead of equality. There has been nothing but progress made for the LGBTQ community, something that our nation should be very prideful of. These Religious Freedom Acts that some states are considering are counterproductive and will take us back to a world of discrimination much like the laws of Jim Crow. How is discriminating against someone of a different sexuality at all different from discriminating against someone of a different color? It’s not. I ask you another question Mr. Adler, what if this policy was the opposite, could a member of the LGBTQ community deny service to a member of a religious organization? I would assume that would be treasonous. If we take a look in other states that have put this law into place we won’t see much else other than negative impacts. For instance, Indiana is filled with uproar, businesses are fearful of losing costumers and residents. Signs are hung up all over Indiana that read “This Business Serves to Everyone”, petitioning Governor Pence’s decision (Swiatek, 2015). Following the legislation, the NCAA even petitioned to have the Final Four Championship moved out of Indianapolis, which will cause Indianapolis to lose all the revenue from that event (Zirin, 2015). Steve Rudner, the president of the Equality Texas Foundation, where the bill is being considered, is a father of twins and he holds a concern for his sons, “They’re 16 and one of them came out when he was 11. The idea that if both of my boys were sick, that an EMT would have to pick up one of them but could refuse to pick up the other one is outrageous” (Beavin, 2015). If you have children Mr. Adler, it is easy for you to understand the fear this father has of the unfair treatment this law will allow the public to give his son. If Michigan were to adopt this policy it would be an embarrassment. It would give Michigan unwanted recognition (much like Indiana), and the media would be plastered with petitions and court cases fighting this broad policy. Our state should learn from the mistakes of others, and disregard this act as a whole. Religious Organizations are already given freedom to exercise, so we should change our focus of proposed legislation to something more essential. Today, more than half of the United States population supports gay rights, displaying how far the LGBTQ community has come, and as Andrew Koppelman said “The gay rights movement has won. It won’t be stopped by a few exemptions” (Koppelman, 2015). Bibliography Beavin, A. (2015, January 27). Texas considers amendment to religious freedom act. Retrieved April 13, 2015, from http://kxan.com/2015/01/27/texas-lawmakers- consider-amendment-to-religious-freedom-act/ Koppelman, Andrew, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law (February 16, 2014). Southern California Law Review, Forthcoming; Northwestern Public Law Research Paper No. 15-11; Northwestern Law & Econ Research Paper No. 15-06. Available at SSRN: http://ssrn.com/abstract=2571058 Swiatek, J., Russell, J., & Richardson, L. (2015, April 2). Businesses fear costly backlash from new religious freedom law. Retrieved April 13, 2015, from http://www.indystar.com/story/money/2015/03/26/businesses-fear-costly-ba... Zirin, D. (2015, March 30). Why the NCAA Should Move the Final Four Out of Indiana. Retrieved April 13, 2015, from http://www.commondreams.org/views/2015/03/30/why-ncaa-should-move-final-...