Religious liberty worth the debate
Cynthia and Robert Gifford own a farm near Albany, New York, and rent their facilities a few times a year for special occasions. Now, they face $13,000 in fines because they didn't feel comfortable opening their facilities to a lesbian couple's wedding.
The Giffords, who live on the property, are Christians and felt it went against their beliefs to host a gay ceremony. While the Giffords offered their farm for the reception, that didn't satisfy the couple, who sued for discrimination under New York's Human Rights Law.
The friction in this scenario, and in many others across the U.S., is what sparked a heated debate in Michigan this year. As some lawmakers considered including sexual orientation in the state's Elliott-Larsen Civil Rights Act, others maintained that shouldn't happen without additional protections for religious liberty.
House Speaker Jase Bolger last month introduced a bill that would offer additional protections for an individual's faith. While that bill was meant to be paired with Rep. Frank Foster's legislation to add sexual orientation to the civil rights act, the two weren't tie barred.
So even when Foster's bill stalled in the Commerce Committee earlier this month, Bolger's bill moved right along. The bill passed the House and now awaits action in the Senate, with two days remaining in the lame-duck session.
This discussion has merit. Even though gay rights are more in vogue right now than religious freedoms, that doesn't mean constitutional protections for religion should become a secondary concern.
Douglas Laycock, a law professor at the University of Virginia and a leading scholar on First Amendment religious rights, wrote a letter to the House Judiciary Committee in support of the Michigan legislation. He also encouraged the Legislature to add protections for gays and lesbians.
"We teach our children that America offers 'liberty and justice for all.' To fulfill that promise, we must protect the liberty of gays and lesbians and of traditional religious believers — of all sides in the contemporary culture wars," Laycock wrote.
Bolger's bill is modeled after the federal Religious Freedom Restoration Act. That law got a lot of attention earlier this year in the Supreme Court's Hobby Lobby decision. The court upheld the business owners' religious rights in their decision not to offer employees certain kinds of birth control in insurance plans.
Obamacare had mandated that businesses offer a wide range of birth control, including miscarriage-inducing drugs, to employees free of charge.
But this federal religious safeguard doesn't apply to state laws. That's why 19 states have adopted their own versions of the Religious Freedom Restoration Act.
Texas' version of the law was applied a few months ago when the city of Houston issued subpoenas to five area pastors, demanding to see the texts of all sermons relating to homosexuality and gender identity. The mayor, a lesbian, has since withdrawn the subpoenas.
"Government action cannot substantially burden someone's right to religious liberty unless it shows a compelling governmental interest to do so," says Dave Maluchnik, director of communications for the Michigan Catholic Conference, which has pushed for this legislation.
Opponents of the law argue it's not necessary and would be an opening for discrimination against certain groups of people.
That's a legitimate concern. The law should be crafted in such a way that it doesn't permit excluding any group from public places such as stores and restaurants. But a small businessperson should not be compelled, for example, to photograph a gay wedding in violation of his or her religious beliefs.
The federal law has been around more than 20 years and has undergone many court tests, and it has not resulted in discrimination against gays and lesbians.
Individuals shouldn't have to face discrimination lawsuits just because of what they believe.
While Bolger's bill should be considered in conjunction with including gays and lesbians in Elliott-Larsen, it has value on its own.