Can There Be 'Compromise' Between Sexual Orientation/Gender Identity Non-Discrimination Laws and Religious Liberty Protections?By Peter Sprigg Senior Fellow for Policy Studies
“Sexual Orientation” and “Gender Identity” in “Non-Discrimination” (“SOGI”) Laws
Those in the LGBT (lesbian, gay, bisexual, and transgender) movement lament that neither the federal government nor a majority of the states has yet adopted legislation to add “sexual orientation” and “gender identity” to the list of protected categories in laws prohibiting discrimination in markets for employment, housing, and public accommodations. One criticism that has often stood in the way of such laws is that they could threaten the religious liberty of churches, religious organizations or corporations, or individual believers who have moral objections to homosexual and transgender conduct. These concerns have grown in the wake of the Supreme Court’s June 2015 opinion in support of redefining marriage to include same-sex couples.
This tension between non-discrimination laws and religious liberty concerns has led some legal scholars and legislators to propose a sort of grand compromise, in which legislation outlawing discrimination and legislation protecting religious liberty is passed simultaneously.
Michigan: A Both-And Approach
In 2014 and again in 2015, legislators in Michigan introduced competing legislation on religious liberty (a Religious Freedom Restoration Act, or RFRA) and special protections based on sexual orientation and gender identity (SOGI) under the state’s Civil Rights Act.
- The state RFRA, like the federal law it is based on, does not grant a blanket exemption from any law, but provides a balancing test to be used by courts: If someone can demonstrate that government action places a “substantial burden” on his or her “free exercise” of a (sincere) religious practice, the state must demonstrate a “compelling governmental interest” for its action, and show it has furthered that interest using “the least restrictive means.”
Democrats pushed for an amendment to the state’s 1967 Civil Rights Act that would extend protected categories to “sexual orientation” and “gender identity.” (In 2014, Republican Rep. Frank Foster proposed a bill that included protections only for sexual orientation [the “SO” in SOGI] and not the more controversial gender identity protections which could result in some biological males being permitted to use female restrooms, locker rooms, and showers.)