Freedom is an important and significant word. It's the basis for the first three articles of our Bill of Rights. According to the dictionary, one meaning is “the power or right to act, speak, or think as one wants without hindrance or restraint”; another definition states freedom is “the power of self-determination attributed to the will, the quality of being independent of fate or necessity.” Yet those definitions of freedom can simultaneously be interpreted from opposite sides of the same coin, forcing conflicting groups to have divergent understandings of what freedom is, and who should enjoy which freedoms.
Religious freedom, an issue currently being played out and debated across the country, including Michigan, is a prime example of that differing of opinion, and a principle upon which the United States was first established. The freedom of religion is one that supports the freedom of an individual or community, whether in public or private, to practice their religion or beliefs, in practice, worship, teachings, and observance. Many consider the freedom of religion a fundamental human right.
The dispute in modern day America centers around how, in efforts to either support or stifle another group’s pursuit of religious freedom, another entity can be hurt, marginalized or potentially discriminated against.
That is the tango of the Religious Freedom Restoration Act, federally enacted to protect the free exercise of religion in November of 1993 under President Bill Clinton, but resurrecting its head in several states, such as Indiana and Michigan, in efforts to “protect” businesses from having to perform professional duties at gay weddings.
Others wonder if the state acts are just an excuse to legislate and legitimize discrimination against gay, lesbian and transgender individuals.
“The bill has been purely defined, both independently and nationally. It is what it is. Everyone has an opinion. But we've seen what has happened (in Indiana),” said Sen. Mike Kowall (R-White Lake). “There are some people adamantly opposed to baking a cake with a serpent on it. And then you get into gay rights.”
The national Religious Freedom Restoration Act, known as RFRA, was introduced by Democrats Sen. Ted Kennedy and Rep. Chuck Schumer in March 1993, in order to “ensure that interests in religious freedom are protected,” with only three senators voting against the bill. While it was meant to, and does, apply to all religions, it was actually designed towards Native American religions that feel burdened by increased expansion of government lands onto their sacred lands. The Free Exercise Clause of the First Amendment states that Congress shall not pass laws prohibiting the free exercise of religion.
However, RFRA was held to be unconstitutional by the U.S. Supreme Court in 1997 in the case City of Boerne v. Flores, where the Roman Catholic Archdiocese of San Antonio wanted to enlarge a church in Boerne, Texas. A Boerne ordinance protected the church as a historic landmark. The church sued, citing RFRA, and the Supreme Court struck it down, stating that Congress had stepped beyond their permitted power provided in the Fourteenth Amendment (which addresses citizens' rights).
In 2003, the federal Act was amended to only include the federal government. It was successfully utilized in the Supreme Court's Hobby Lobby Decision involving Obamacare, which permitted the company to not provide birth control to its employees as a health care expense, as mandated by the Affordable Care Act, stating it conflicted with the religious beliefs of the company's owners.
Since, individual states have turned to RFRA as a tool. Yet according to cases which continue to come before the U.S. Supreme Court, it's constitutionality continues to be tested, with the government having to show compelling state interest in restricting religious conduct. For an example, in 2013, the Arizona legislature created their own act after a New Mexico photographer who refused to document a same-sex couple's commitment ceremony was determined to have violated New Mexico's public accommodation laws. After public outcry, former Gov. Jan Brewer vetoed the bill.
In December 2014, the Michigan House of Representatives passed a Religious Freedom Restoration Act on straight party lines, by a vote of 59-50. However, the state Senate declined at the time to put the bill up for a vote. It was sponsored by former Speaker of the House Jase Bolger (R-Marshall), who said the goal was to merely protect people and their beliefs and practice of religion. At the time, they used differing examples, such as the baker who didn't want to make a cake for a same-sex wedding, as well as a Jewish mother who didn't want an autopsy for her son who died in a car crash, or a pediatrician who doesn't want the child of a lesbian couple as a patient.
Rep. Mike McCready (R-Birmingham, Bloomfield Hills, Bloomfield Township) said he voted for the bill in 2014. Today, he's unsure if he would be as supportive, as a new Senate bill heard in committee in late April 2015, Senate Bill 4, is designed to be expanded to the private sector as well as public sector. Sponsored by state Sen. Mike Shirkey (R-Clarklake), wrote recently regarding his proposed RFRA bill, “Why is Michigan looking to pass its own RFRA and why have so many other states done so? A Supreme Court ruling said that states would need to pass their own state version of RFRA if it wanted its citizens to be protected by overzealous governmental laws or actions...Many states, including our neighbors such as Illinois, started passing state level RFRAs to fully restore the First Amendment rights of their citizens...Far from being a 'license to discriminate,' both the federal RFRA and the proposed Michigan RFRA are a shield to make sure people retain their full First Amendment rights and have an opportunity to defend themselves if governmental laws or actions unfairly impinge upon their sincerely held religious beliefs.”
“Bolger was lining it up with the federal bill that was approved. It was just for government workers. It didn't involve private workers,” McCready said.
McCready did note that “we have a diverse community that we live in, especially here in the district. I don't know how the government should or shouldn't be involved.”
“I allowed the bill to have a hearing. I thought it was very educational. Everyone got to have their say, and now we can move on to other issues,” said Sen. Rick Jones (R-Grand Ledge) and chairman of the Senate Judiciary committee, who said in early May he did not intend to bring the bill before the Senate committee for a vote. “The Governor is opposed based on Elliott-Larsen, and I don't have any say in bringing that before the full Senate. But more importantly, businesses have said that they don't want to have any backlash like they had in other states.”
Shirkey's senate office said he would not comment further on his own bill.
Numerous businesses, large and small, object to a Michigan RFRA and to the concurrent lack of expansion of civil rights to the gay community, as evidenced by testimony not only during this Senate hearing, but more notably in 2014.
Simultaneous to the introduction to the Religious Freedom Restoration Act in 2014 and as a companion to the bill, former state Rep. Frank Foster (R- Petoskey) introduced an expansion to the Elliott-Larsen Civil Rights Act to include the LGBT community.
The goal was to amend the state's civil rights act to provide protection to include sexual orientation and gender identity as protected from employment discrimination. Businesses around the state strongly supported the expansion of Elliott-Larsen, as does the governor. But not only did the legislation fail because Republican leadership would not include the transgender community in the bill, but it also ended up costing Foster his seat in the state House.
“Two years ago, a Democrat from Ann Arbor, Jeff Irwin, came to me and said, 'You probably don't know this, but there's no protection from gender orientation and identity.' I said I didn't know that,” said the 28-year-old Foster. “Irwin told me he wanted to sponsor a bill to include it, but that would be better coming from a Republican. I understood and agreed. Probably in February (2014), I understood the implications this would have for me, as well. The polling numbers in my district were terrible, but I felt we in Michigan were on the wrong side of history.”
Foster said that the previous fall, he met Lee Chatfield, who would go on to unseat him, in the district. Chatfield told him straight out that he didn't like the expansion of the Elliott-Larsen bill, and that if Foster didn't give it up, he would be forced to run against him.
“I understood what he was saying. But, think about this, it's only one bill,” Foster said. “He gave me a deadline of December 21 (2013), and then he filed to run against me. The rest is documented. He ran, and it was the highest primary turnout the district had ever seen.
“It was a campaign against gay rights.”
Foster said he has no regrets. He disagreed with Chatfield, now the state representative for the district, on the issue, “and it's a socially conservative district. I knew what I was walking into. I told my staff, at the end of the day, all we've lost is our jobs. We've kept our ethics.”
Despite losing the primary campaign, Foster stuck to his principles and pushed the amendment to the Elliott-Larsen bill during his last months in the state House.
What is the Elliott-Larsen Civil Rights Act, and why has it become such a political hot potato? Also known as Public Act 453 of 1976, the law is named after its two primary sponsors, Daisy Elliott (D-Detroit) and Melvin Larsen (R-Oxford). It prohibits discrimination on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” in employment, housing, education, and access to public accommodations.
It passed in 1976 with 25 votes in the Michigan Senate, and 79 votes in the Michigan House, and was signed into law by Governor William Milliken. It has been in effect in Michigan since March 31, 1977.
According to interviews with Elliott and Larsen at the time, and written about in 2014 in MLive by Tim Skubick, the original legislation was meant to focus on African Americans, and it was believed that adding “sexual orientation” would prevent the bill from passing, so it was left out at the time. Many issues raised at the time by the disabled community were subsequently addressed with the passage of the Michigan's Persons with Disabilities Civil Rights Act in 1976.
Actual legislation to include the LGBT community wasn't introduced until 2005. Since, there have been several bills introduced to add protections for the LGBT community. Foster's bill, ultimately did not receive support from the LGBT community because the final draft only included sexual orientation and not gender identity; it was supported in hearing but did not receive a committee vote.
“We are actively seeking to achieve an (inclusive) Elliott-Larsen Act,” said Cassandra Varner, communications and development director for Affirmations in Ferndale. “Last year it was modified to not include gender identity, and we feel very strongly that gender identity must be included as a recognized, protected class.”
Seeking to create and maintain a vibrant and healthy business environment, executives from AT&T Michigan, Fiat Chrysler, Dow Chemical, Whirlpool, Herman Miller, Strategic Staffing Solutions, Steelcase, Henry Ford Health Systems, Cook Investments, Detroit Economic Growth Corporation, Warner Norcross & Judd, Cascade Engineering, Area Agency on Aging, and Production Tool Supply, among others, spoke in October and November 2014 to the House's Commerce committee urging the amended adoption of the Elliott-Larsen Civil Rights Act to include sexual orientation and gender identity.
“Michigan is in a global war for talent,” said Brad Williams, vice president, global relations for the Detroit Regional Chamber of Commerce, which puts on the annual Mackinac Policy Conference. The Detroit Chamber supported the Elliott-Larson bill last year, which they announced at the 2014 Mackinac conference. “Anyone, regardless of sexual orientation or gender identity, we felt, were welcome to come to Michigan and utilize their talents here.”
Williams said after they announced their support of Elliott-Larsen, there was talk that the House was going to run a Religious Freedom Restoration Act bill with it. “They felt the Elliott-Larsen bill would neutralize the RFRA, and the civil rights act would have protections from that RFRA bill, unlike in Indiana, where even the revised bill did not explicitly prohibit discrimination. Elliott-Larsen would prohibit discrimination.”
The Michigan Chamber of Commerce said they have not yet taken a position on either Elliott-Larsen or Religious Freedom. Wendy Brock of the Michigan Chamber said, “We're currently listening to our members to see how they feel it impacts their businesses. We're hopeful we can learn from what's going on in other states.”
Dr. Gary Rudgers, global regulatory leader for new business within Dow AgroSciences, told the Commerce committee during hearings, “In a highly competitive world where innovation is the key to securing competitive advantage, we know that it is our employees that are key to our success...With a shrinking and every more diverse talent pool, it is essential for us to actively include everyone to ensure we attract, develop and advance the very best talent. At Dow, we are committed to attracting, developing and retaining a diverse workforce across all spectrums: race, color, religion, national origin, gender, sex, age, protected veteran status, genetic information, mental or physical ability, sexual orientation or gender identity. Specifically, our LGBT policies have been good for our workplace for two main reasons: 1) retention of our employees has been enhanced, because they know they can perform their jobs openly and with full support of their personal and family situation without fear of repercussion and therefore have more reason to be committed to the company in return, and 2) better recruitment of allies and younger workers, who often gauge inclusive policies as a litmus test for prospective employers.”
Brian Walker, CEO of Herman Miller, explained to the committee, “Embracing the unique talents and perspectives of all our employees is an integral part of our business strategy. By doing so, we create more innovative solutions for our customers, develop stronger community and supplier relationships, and provide a supportive environment where all employees feel welcome and able to bring their whole selves to work. Unfortunately, our own workplace practices come up against the statewide reality that it is still legal in Michigan to fire someone, refuse housing, or refuse service to this community, all things that directly undermine our own efforts in the workplace.”
The sentiment was heard by the committee repeatedly.
“For Michigan to drive further growth, the legislature must act to expand the protections in the Elliott-Larsen Civil Rights Act to protect current and future residents from discrimination based on sexual orientation, as well as gender identity,” Cynthia Pasky, CEO of Strategic Staffing Solutions, said. “It is time to modernize the law and do the right thing for our community, the right thing for our economy, and the right thing for Michigan.”
“It's definitely great that it's gotten so much support from the business community and large corporations,” said Affirmations' Varner. “Diversity and equality are at the top of their priorities at the Big Three.”
The requested civil rights non-discrimination protections covering sexual orientation and gender identity are guaranteed to citizens in 19 other states, according to the American Civil Liberties Union (ACLU), from states as diverse as California and Massachusetts to Idaho, New Mexico, Illinois and Washington state. Three other states, New York, New Hampshire, and Wisconsin, offer protections based upon sexual orientation only.
Despite demands by Michigan House Democrats and the LGBT community, sources said there was not support within the Republican caucus for gender identity to be included in the 2014 bill. While many Republicans across the state could accept inclusion of sexual orientation in the bill, that was their line in the sand. For the transgender community, as well as the greater LGBT community as whole, that was a non-negotiable item.
Some working both in the legislature, and behind the scenes, felt it may have been in the LGBT community's best interest to meet Republicans half-way, and get the amendment with sexual orientation approved, and then move it forward for the transgender community at a later date.
“It's a debate between pragmatism and ideology,” said one individual who declined to be named. “Take half a loaf, and work on the rest of the loaf.”
Ironically, Foster said, U.S. Attorney General Eric Holder supported a lower court ruling “that transgender would be covered under sex. So it was covered already under Elliott-Larsen legally. But we need to show the business community and the state, and people outside the state, that Michigan is tolerant, and at the end of the day, I couldn't move the bill without transgender in it through the House because Republicans wouldn't support it, and I couldn't move a bill which just included sexual orientation in it, because the Democrats wouldn't support it.
“The Religious Freedom bill was important to a number of people in the House from all over the state, and I knew that to get my bill moving, it was necessary to make it mesh or make it move in tangent with RIFR, and I made that happen with Speaker of the House Bolger. He was supportive of what I was doing but wanted to know that there would be protections for the religious with this,” Foster explained. “I was trying to accomplish more tolerance with my bill, and I didn't want the Religious Freedom bill to go through without the Elliott-Larson changes, because I didn't want the bigots of the world to prevail, to have an excuse to discriminate.”
The Elliott-Larsen bill was not brought before the full House for a vote.
Former Sen. Majority Leader Randy Richardville (R-Monroe) chose not to put the Religious Freedom bill on the lame duck agenda, noting he did not have enough votes, 20, to have it pass, although several Republican senators did request it at the time.
Governor Rick Snyder stated in 2014, and again today, he would veto any RFRA bill that came before him, as long as it was not coupled with an expansion of the Elliott-Larsen Civil Rights Act, to include sexual orientation and gender identity.
“The Governor has said he would veto the Religious Freedom bill if it came to his desk unless it was accompanied by an expansion of the Michigan Civil Rights Act,” said Dave Murray, deputy press secretary for Governor Snyder. “He has numerous concerns without the added protections.”
Williams of the Detroit Chamber of Commerce was pleased that a few weeks ago Sen. Jones did not bring the recent RFRA up for a vote. “I came up for the hearing because I wanted the business community's voice to be heard,” he said. “Because I didn't want silence to insinuate consent. At the same time, I'm glad wiser heads prevailed. The Governor's opposition is a road block to the legislation.”
“My stance is there's a federal Religious Freedom Restoration Act,” said Rep. Klint Kesto (R-Commerce, West Bloomfield). “As a Catholic, the Pope mentioned treating everyone fairly and equally. At the same time, no one's religion should be burdened by the government. But it must be some sincerely held religious belief, not just an excuse that is discriminatory.”
“I just keep going back to the Constitution, that all people are created equally, and if we just go back to what our forefathers wrote, we'd all be just fine,” said Sen. Kowall. “Our rights are pretty well-defined, and the Michigan Constitution is even clearer than the federal Constitution, that everyone is equal.”
On May 7, 2015, state Sen. Rebekah Warren (D-Ann Arbor) introduced Senate Bill 315, to expand the Elliott-Larsen Civil Rights Act to include the LGBT community.