Michigan’s Religious Freedom Restoration Act: Religious Freedom or a Permit to Discriminate?

Michigan Governor Rick Snyder

On December 4, 2014, the Michigan House of Representatives passed the Michigan Religious Freedom Restoration Act (RFRA) sparking an outpouring of concern that the legislation will give nothing more than a right to discriminate and a backlash from RFRA supporters that the act is merely a protection of religious freedom.   The Universal Life Church supports equal rights and does not support any legislation that would impact those rights.  The act is currently in the hands of Michigan’s Senate and if passed by the Senate it will be delivered to Michigan’s Republican Governor Rick Snyder for the signing or vetoing of the religious law.

Michigan RFRA

The Michigan Religious Freedom Restoration Act is modeled after the federal RFRA enacted by the United States Congress in 1993.  The federal law was enacted in reaction to the decision in Employment Division v. Smith, which allowed a state to deny unemployment benefits to a rehabilitation clinic employee fired for using peyote during a religious ceremony because the use violated the state’s law prohibiting the use of peyote.  The federal RFRA established a level of strict scrutiny when a law substantially burdens a person’s exercise of religion.  Strict scrutiny is the highest standard of review.

In 1997, the application of the federal RFRA took a substantial hit in City of Boerne v. P.F. Flores, when the Supreme Court ruled that the federal RFRA did not apply to states.  Many states in reaction to the 1997 decision adopted their own RFRAs.  The Michigan RFRA enacts the “compelling interest” test that was used before the ruling in City of Boerne v. P.F. Flores.  The Michigan RFRA two part test includes a compelling governmental interest and the use of the least restrictive means of furthering that interest.

Possible Implications of the RFRA

Opponents of the Michigan RFRA argue the act will essentially give anyone the right to refuse service to LGBTs or other groups on the claim that to provide service would infringe on their religious freedom.  The fears include refusing to treat in a medical emergency, denial of prescription drugs, or declining to hire on the basis of religious freedom.

Proponents of the bill dispute these claims by arguing that the Michigan RFRA is simply modeled after an already enacted federal RFRA and that it will only apply to the government, however, this argument fails to recognize the recent U.S. Supreme Court decision in Burwell v. Hobby Lobby.  In Burwell v. Hobby Lobby, the court ruled that a closely held for-profit corporation is exempt of a law that its owners deem to be against their religious beliefs if there is a less restrictive means of furthering the law’s interest.  The Supreme Court used the federal RFRA when making its decision.  The Hobby Lobby decision could translate into state enacted RFRAs being applied outside of government entities.

Michigan has failed to pass a statewide LGBT anti-discrimination law, however, many Michigan cities have enacted their own statutes that protect LGBTs against discrimination.  The Michigan RFRA, if signed into law, however, could negate these anti-discrimination ordinances.

For now Michigan residents are left waiting to see if the RFRA will make its way through the Senate and if the Governor will sign or veto the potentially influential piece of legislation.