LANSING — As the nation awaits a decision by the United States Supreme Court as to to whether or not same-sex couples have a constitutional right to marry, lawmakers on both sides of the aisle are buckling down for a battle over how expansive marriage rights will be and whether or not people will be able to opt out of services related to same-sex marriages.
But that ruling is also setting up a showdown in the state capitol over religious rights and the rights of same sex couples.
"There will be small RFRAs designed to chip away at the hard won rights of the LGBT community," said Rep. Jon Hoadley, D-Kalamazoo. Hoadley is one of two openly gay state lawmakers serving in the current legislature.
RFRA refers to a federal law known as the Religious Freedom Restoration Act. On a federal level, the law is designed to prohibit the government from creating obstacles to the expression of religious faith. The government must prove that any rule or enforcement of law has a rational basis for a government interest. But a federal court has ruled the federal law does not apply to states, which has resulted in a series of bills introduced across the nation.
One such bill in Indiana caused a national uproar over its potential to open the door to discrimination against LGBT people. Republican Gov. Mike Pence had to force the GOP majority in that state's legislature to amend the law to explicitly ban discrimination on the basis of sexual orientation.
A similar law is pending in the Michigan Senate, although Gov. Rick Snyder has said he would veto the bill if it is passed. In Michigan, unless a person lives in a community with a local non-discrimination law, discrimination on the basis of gender identity and sexual orientation is legal.
But advocates and lawmakers said in interviews last week that if the Supreme Court rules in favor of marriage equality, the state has already seen one bill that is designed to allow religious people to opt out of the law. Earlier this month, the legislature approved a series of bills which would place the "sincerely held religious beliefs" of private, faith-based adoption agencies receiving state funding over the "best interests of the child." The so-called "best interests" measure has been a long standing legal measure in placements in Michigan.
State Sen. Curtis Hertel Jr., D-East Lansing, has introduced legislation to modernize Michigan's marriage laws. Under the legislation, Senate Bill 227 of 2015, the prohibition on same-sex marriage as well as gender specific language would be stricken from Michigan law. The legislation would also create a list of family relations prohibited from marriage under the law.
Hertel's legislation is tied to passage with Senate Bill 229 of 2015 introduced by Sen. Rebekah Warren, D-Ann Arbor. This legislation would recognize out of state same-sex marriages and strike the statutory prohibition on recognition of such marriages. The bill also replaces gender specific language with neutral language.
"These bills would remove the state prohibition on same-sex marriage," said Hertel in a phone interview. "There will be a lot of other laws that will need to be looked at and fixed."
But the Hertel and Warren package is not the only marriage-related legislative package in the legislature. On June 17, Republican lawmakers Reps. Cindy Gamrat, R-Plainwell, and Todd Courser, R-Lapeer, introduced a package of bills which would eliminate the ability of civil servants — such as judges, mayors and county clerks — to conduct marriages, and instead leave such ceremonies exclusively in the hands of religious officials and organizations. The package would also limit secret marriages — long legal in Michigan — to only opposite sex couples. Marriage licenses and applications are public information in Michigan.
Barb Byrum, the Democratic County Clerk in Ingham, said she was concerned about the impact of excluding same-sex couples from secret marriage options.
"In Michigan, I can marry a couple on Monday, and on Tuesday they can be fired for being gay," she said. "This bill would expose my couples to discrimination."
"The Supreme Court, in this decision on marriage will be redefining marriage to being a contract between individuals and their government, and that will simply be a changing definition based on the needs and whims of government," Courser wrote in a blog post on his website Thursday. The post explained why he introduced the bills. "Regardless of which way the Supreme Court decides, from here forward marriage will be whatever our Supreme Court decides. The contract that had been in place was between the man and wife on one side and God and His Holy word on the other side of the contract. I stand absolutely and completely behind the idea that marriage is between one man and one woman. This U.S. Supreme Court decision will potentially throw out thousands of years of Judeo Christian history and will be used as a massive hammer from the progressive movement over many areas of religious liberty and freedom of expression, within churches, within commerce and throughout society in general. It is one more step in the tearing down of the Judeo Christian foundation of our country."
Courser claims he requested the bills "to protect pastors from being forced to perform gay marriages."
"These proposed laws all appear to make clergy the exclusive gatekeepers for access to certain state laws and benefits," said Tobias Barrington Wolff, a law professor at the University of Pennsylvania. He also served as a legal advisor on LGBT issues to President Barack Obama's 2008 presidential campaign. "That is inconsistent with the Establishment Clause of the First Amendment to the U.S. Constitution. Clergy can participate on equal terms in functions like the celebration of a marriage, but they cannot be made the exclusive gatekeepers. That would make access to civil marriage depend upon a couple's ability to find favor with a religious officiant. The government cannot do that."
Chris Savage, writing at Electablog, points out that this "forced to perform gay marriages" message was debunked in the Supreme Court hearings earlier this year. Under questioning from conservative Justice Antonin Scalia, Mary Bonuato, arguing in favor of marriage equality, explained that the First Amendment would prevent any clergy member from being forced to marry a couple in violation of their religious beliefs.
"Ms. Bonauto, maybe I'm just not understanding Justice Scalia's question, but for example, there are many rabbis that will not conduct a marriage between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination," Justice Elena Kagan said from the bench. "And those rabbis get all the powers and privileges of the State, even if they have that rule, most — many, many, many rabbis won't do that."
That rhetoric, however, feeds into a growing concern from religious conservatives that recognition of marriage equality will somehow result in people being forced to violate their "religious conscience" as Courser explained. And that concern is driven by a very real, and very delicate balancing act between religious expression and discrimination. The opposition to marriage equality, underlined with a moral belief that homosexuality is wrong, drives a rhetorical conversation about fears. Similar religion-based push back happened as African-Americans solidified their rights during the 50s and 60s, experts have explained to Between The Lines previously.
"This type of rhetoric represents the new wave of discrimination tactics designed to divide people into classes," said Gina Calcagno of Michigan for Marriage. "The Courser bills represent state sanctioned discrimination and rewrites what religious freedom and equal protection under the law means. Equality and fairness are not principles that are decided on a case-by-case basis."
This all plays out in a public arena where the majority of Michigan voters opposed religious objections bills and support LGBT equality, but the GOP majority in the state legislature opposes legislation to address discrimination against the LGBT community, and supports religious objections laws.
That disconnect, said Calgnaco, is going to require voters to engage.
"Most elected officials, even those who may disagree with you, will sit down and talk with you or take your phone call," she said. "Keep calling. Tweet at them. Send them an email. Write them a letter. Visit them in their district. Visit them at the Capitol. We can turn this around. Michigan can be the next success story in defeating these harmful bills, but it's going to take every single one of us."
Indeed, some states have crushed anti-gay legislation. She points to Texas and Florida — where lawmakers failed to pass multiple anti-gay measures — before adjourning for the session this year.
"I am dismayed that we continue to see Republican efforts to discriminate against and restrict the freedoms of people across Michigan simply because they do not hold the same religious beliefs as they do," said Rep. Tim Greimel, House Democratic Leader, in a statement. "This bill would have government discriminate not only against the LGBT community (which would be deplorable enough), but also against anyone who chooses to be married by someone other than a member of the clergy. We have roads to fix, kids to educate and a middle class to grow — no legislator should be wasting his or her time contemplating these ideas motivated by bigotry."
