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.