The LGBTQ community has made impressive advances in recent years, and we celebrate every victory that brings us closer to full equality for all. But there is still a lot of work to be done before LGBTQ Michiganders cease to be treated as second-class citizens.
The 2015 U.S. Supreme Court decision legalizing same-sex marriage nationwide is a significant milestone, but it has also sparked a backlash among those who oppose equality for the LGBTQ community. As an active member of Outlaws — Michigan Law’s LGBTQ student organization — I know many Michigan citizens and students are watching with concern as more anti-LGBTQ bills are introduced and passed across the country.
Among the most troubling of these bills are so-called Religious Freedom Restoration Act legislation, like those currently causing controversy in Mississippi, Georgia and North Carolina. While each bill differs slightly, the effects of this type of legislation includes limiting the power of local governments and extending antidiscrimination protections to LGBTQ people to allowing businesses to refuse to serve LGBTQ people by simply saying they have a religious objection to doing so. Not only do these bills deny LGBTQ people equal treatment and expose them to discrimination in their everyday lives, they are also simply unnecessary to protect religious freedoms.
State RFRA bills are a prophylactic layer atop the protections already afforded by the U.S. Constitution and the federal RFRA law. The federal RFRA clearly states that it is intended to protect individuals who want to practice their religion, as long as the practice doesn’t place a burden on others. For example, a prisoner who wants access to religious materials isn’t harming anyone. Unlike the federal RFRA, which only applies to government intrusion into religious practices, the state-level RFRA would allow a religious objection to be used in interactions between individuals. State RFRA legislation that allows businesses to claim a “religious objection” and legally refuse service to someone is in fact harmful to others.
The problem is that in Michigan, LGBTQ people do not have equal protection under the state’s civil rights law. Most of our state law protections against discrimination are found in the Elliott-Larsen Civil Rights Act (ELCRA), which prohibits discrimination based upon religion, race, color, national origin, age, sex, height, weight, familial status or marital status. The law does not include any protections for LGTBQ people, meaning that LGBTQ Michiganders fired or denied housing simply because of their status as LGBTQ have no recourse under the ELCRA, unlike someone who is fired for their race or religion.
The result is that a gay man or a transgender woman could be denied employment strictly on the grounds of sexual or gender identity, not on their qualification or merits. LGBTQ people could be denied housing or turned away from a hospital if a health care provider states a religious objection. A police officer could refuse to protect someone who is LGBTQ or of another religion, or whose behavior they object to on religious grounds. Is that how we treat people in Michigan? The LGBTQ community is made up of our neighbors, our family, our friends, our coworkers, even members of our church. They deserve protection.
Despite the lack of state law protections for LGBTQ persons and the religious protections extended in the federal Constitution and under federal law, Michigan politicians continue to push forward harmful RFRA-like legislation in our state. Although Gov. Rick Snyder denied that it was a RFRA-type bill, legislation signed into law last year, which allows faith-based adoption agencies to deny service based on religious objections — even when they accept state funding — clearly discriminates against LGBTQ people and others. The same discrimination that is illegal when exercised against other members of the community is acceptable under laws such as these when aimed at the LGBTQ community.
Michiganders don’t have to look far to learn that RFRA bills are bad for equality, bad for our community and bad for business.
In North Carolina, more than 119 business leaders signed a letter to Gov. Pat McCrory urging him to repeal the state’s recently passed RFRA law. Employer PayPal announced it was canceling a major investment in North Carolina, resulting in a loss of at least 400 jobs and $3.6 million dollars. Another major corporation, Braeburn Pharmaceuticals, stated it was “reevaluating” its plans for a $20 million project in Durham.
In Georgia, House Bill 757 passed through the House and Senate before the governor vetoed the bill after public outcry. The pushback to the bill was swift and serious, with major employers (Home Depot, Coca-Cola, Google and Microsoft) opposing the bill. Atlanta, “the Hollywood of the South,” also received criticism from members of the entertainment industry, an industry that added approximately $1.7 billion to the state’s economy just last year. Passage of the bill could also have disqualified Atlanta from hosting an upcoming Super Bowl, with the NFL stating that the law would be a relevant factor in the hosting decision. Agencies within the state estimate the bill could have cost between $1 billion and $2 billion.
In Mississippi, Gov. Phil Bryant signed House Bill 1523 this week, which protects private businesses that discriminate against LGBTQ for proclaimed religious or moral reasons. Major employers in the state, including Tyson Foods, AT&T, IBM, MGM Resorts International, Nissan and Toyota, have all objected to the bill. The Mississippi Manufacturers Association has expressed its fear that the law will affect business and development opportunities in the state. New York Gov. Andrew Cuomo signed an executive order banning non-essential state travel to Mississippi, which follows a similar ban on nonessential state travel to North Carolina.
In the case of every RFRA-type bill, supporters claim they only intend to protect people of faith. But religious organizations and individuals are already protected by the U.S. Constitution. Meanwhile, it’s still legal in most states to deny housing, services or employment to LGBTQ people.
Freedom of religion is one of the cornerstones of our democracy, and no one is asking religious organizations to perform same-sex marriages against their will. But LGBTQ people do have the right to equal treatment under the law.
Opposition to RFRA-type bills is not anti-religion, it’s pro-equality. In fact, many members of the LGBTQ community are religious themselves. This isn’t about curbing the rights of religious individuals and organizations, it’s about preventing anti-LGBTQ legislation from harming our communities under the guise of religious protection.
In Michigan, advocates are working hard to extend civil rights protections under ELCRA to LGBTQ people, but it will take time. During that time, it’s almost certain that RFRA-type legislation will be introduced in Michigan. When and if these bills start moving through our legislature, you can be sure the LGBTQ community will make our voices heard. We hope you’ll join us.
Abbye Klamann is a University of Michigan Law School student.