Religious freedom conflicts ahead after Michigan Supreme Court redefines sex

Denver Newsroom, Aug 2, 2022 / 17:00 pm

A Michigan Supreme Court decision that state civil rights law bars discrimination on the basis of sexual orientation may conflict with religious liberty, the Catholic Church in the state has said.

The decision would “usurp the legislature’s role in the democratic process, present constitutional problems for people of faith, and place in jeopardy religious persons and entities who wish to serve others in the public square,” the Michigan Catholic Conference said July 29.

The Catholic conference warned that the decision “expressly does not address” whether enforcing the redefined Michigan civil rights law would violate federal and state constitutional religious freedom protections. It sided with a dissenting justice who said there are “strong arguments” that the majority interpretation “poses constitutional problems relating to religious liberty.”

The 5-2 decision in the case Rouch World v. Department of Civil Rights redefines sex discrimination to include sexual orientation and gender identity.

The ruling concerned two legal cases. In the first, the owners of an event center had denied a request from a female same-sex couple to host their wedding on the grounds that doing so would violate their religious beliefs. In the second, the owner of a body hair removal service had declined on the grounds of religious belief to perform hair removal services on a man who identifies as a transgender woman as part of his purported gender transition. 

The plaintiffs had sought a declaration that sexual orientation and gender identity are not protected under state civil rights law and that the Michigan Department of Civil Rights was wrong to define them as such in a 2018 interpretative statement. 

The 1977 Michigan legislation in question, the Elliott-Larsen Civil Rights Act, bars discrimination on the basis of race, religion, color, sex, national origin, age, height, weight, and familial or marital status.

“Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex,” the supreme court’s summary said, explaining that denying equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation or services constitutes illegal sex discrimination.

“Because one’s sex is necessary to the identification of sexual orientation, discrimination on that basis is discrimination on the basis of sex,” the supreme court said, according to the summary.

The Michigan court’s decision drew upon the rationale of the 2020 U.S. Supreme Court decision Bostock v. Clayton County, which included sexual orientation and gender identity under the definition of “sex” in federal employment law. 

That decision already requires employers with 15 or more employees to treat sexual orientation or gender identity as a protected class under Title VII of federal civil rights law. The decision prompted deep concern from the U.S. Conference of Catholic Bishops, who had argued that such interpretations “redefine a fundamental element of humanity” and “promulgate the view that sexual identity is solely a social construct rather than a natural or biological fact.”

Drawing on the Bostock decision, the Michigan Supreme Court ruled that Rouch World Event Center in Sturgis had illegally rejected the request of Natalie Johnson to host her same-sex wedding. Had Johnson been a man, the supreme court said, the event center would not have denied services. 

The Michigan Catholic Conference had filed a December 2021 amicus brief in support of the event center owners and their “right to act in the public square according to their religious beliefs that marriage is between a man and a woman.”

The brief argued that the state legislature is the body constitutionally charged with creating and amending state laws. This lawmaking process “permits people of diverse beliefs to cooperate in crafting laws that simultaneously protect both vulnerable persons and the conscience rights of Michigan residents.”

In cases of alleged discrimination on the basis of sexual orientation or gender identity, the conference said, the majority opinion “expressly does not address” whether enforcement under the state civil rights law would violate religious liberty constitutional protections at the federal and state level.

“Michigan Catholic Conference promotes public policies that protect conscience rights and the freedom for religious entities and individual persons to serve others, particularly those in need and those living on the economic margins,” the conference said Friday. “We profess that marriage is the union of one man and one woman united through life and open to the birth of children, even as society and culture has recently moved in a historically different direction. Christians are not called to conform to the culture, but to speak to it with truth and love.”

“The Catholic Church teaches that all people deserve to be treated with respect and compassion,” the conference added. “We urge citizens throughout their daily lives to approach and speak to one another in ways that acknowledge their inherent dignity, as every human person has been created in God’s image and likeness.”

“We will continue to advocate for religious liberty rights and seek to uphold constitutional principles that provide legal protections for those who serve others in the public square — particularly the poor and vulnerable — according to their religious mission,” the Michigan Catholic Conference said.

The Catholic conference’s amicus brief argued that civil rights department officials had requested “a sweeping ruling that would necessarily affect religious beliefs and entities” but these officials refused to address questions of religious liberty, saying they may be weighed in a future case.

The brief invoked a hypothetical lay Catholic institution’s job interviews with two women with same-sex attractions, one of whom states she is in a romantic same-sex relationship but the other says she does not act on her feelings, following Catholic teaching. 

“Consistent with Catholic teaching, the organization might hire the first, but not the second, on the grounds that, by her actions, the second woman has demonstrated an opposition to Church teaching,” the brief said.

However, state officials would rule that this is an impermissible distinction because “the test is whether a man and a woman would be treated differently for being in a romantic relationship with a woman.”

There is no guarantee that state officials will care about a Catholic institution’s distinctions. Though statuary compromises can avoid these “dilemmas,” the department skipped this process by offering its own interpretation. This precludes the “type of careful compromise” that religious liberty precedents have reached.

Some religious challenges to the strict application of anti-discrimination policy have been successful. In March the Michigan Department of Health and Human Services paid at least $800,000 in legal fees to settle two Catholic child placement agencies. The agencies had made successful First Amendment legal challenges to an agreement that barred state funds for adoption agencies that declined to place children with same-sex couples.

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