Religious Liberty: A Sword or a Shield?

Denying services based on religious objections has most frequently been associated with the LGBTQ community, but recent news and a closer look at the issue shows it actually has the ability to affect a much wider swath of people.

When news broke this week that the American Civil Liberties Union of Michigan had filed a complaint against a Petoskey-area pharmacist who denied a woman a prescription for her miscarriage, the story was all too familiar for those who identify as lesbian, gay, bisexual, transgender and non-binary.

In fact, a contested scenario on the matter frequently cited is the Colorado baker refusing to bake a cake for a same-sex couple’s wedding. The baker won that case on the technicality that the Colorado Civil Rights Commission did not act appropriately, but it still left the larger question of just how far religious refusal – frequently cited by its proponents as religious objection, religious liberty, or religious consciousness – can go before it simply becomes a shield for discrimination.

And, while the pharmacist denying medicine based his religious objection has made headlines all the way into major news outlets like the New York Times, many instances of religious objections that are simply discrimination do not see the same media treatment. In fact, over the last several years, Michigan has had its fair share of debates around policies that cement this type of practice into state law.


Health Care

As one example, Republican state legislators have repeatedly tried and failed to pass legislation allowing religious-affiliated health care facilities to turn people and services down for religious reasons. In 2012, for instance, then-Sen. John Moolenaar (R-Midland), who is now a congressman in Michigan, introduced legislation on this matter and succeeded in getting it out of the Senate but not through the House.

Then-Rep. Marcia Hovey-Wright (D-Muskegon) had pointed out that her constituents could be severely affected because the only major hospital servicing her district is a Catholic hospital.

More pointedly, Hovey-Wright was alluding to reproductive rights. Whether a woman decides to have an abortion, a man is seeking contraception, or women seeking birth control – which some Republicans still view and project as a form of abortion – for other medical needs such as those associated with endometriosis, health professionals at these institutions would have been able to turn folks away simply by stating a “religious objection.”

While that proposal never became law, it hasn’t stopped other Republicans from reintroducing that or similar legislation since.



Another instance of religious refusal that is actually state law is something Republican Governor Rick Snyder signed into law in 2015 that allows publicly funded adoption agencies to refuse qualified potential parents based on that agency’s “sincerely held religious belief” about the potential parents.

While that disproportionately affects LGBTQ couples at Catholic agencies who may not believe in their right to marriage, it also means those same Catholic agencies, for example, could refuse to adopt to opposite-sex couples who do not identify as Catholic themselves.

In September, a federal judge gave the ACLU of Michigan the green light to proceed with its lawsuit challenging the discrimination from publicly funded foster care systems in a case in which two lesbian couples had been turned away by two state-contracted agencies because they were a same-sex couple.

“In America right now, there are over 118,000 children in the foster care system awaiting adoption. Allowing good families to be turned away because they don’t meet a religious litmus test denies children families they desperately need,” Leslie Cooper, deputy director of the ACLU’s LGBT and HIV Project, said of the matter. “The use of religious standards for participation in a government program also violates the Constitution. Couples … who want to open their hearts and homes to a child in need should be judged on one thing: their capacity to provide love and support to a child, not whether they pass a religious test.”

And, because of the lack of explicit protection in Michigan’s Civil Rights law for people based on their sexual orientation and gender identity, there is little recourse for those who may face such objections when it comes to employment, housing, education and access to public accommodations.


Religious Minorities

While it’s been less reported about than the previous two instances, religious objections also play a role in denying religious minorities – most often those of non-Catholic denominations, for example – certain rights as well.

It’s federal law for employers to offer religious accommodations. In another case from the ACLU of Michigan, Muslim prisoners were being denied meals that complied with the halal requirements of Islam, and Jewish inmates were not receiving kosher meals. Instead, the Michigan Department of Corrections (MDOC) opted to offer a vegan diet it claimed met the religious requirements of all religions.

In March 2018, a judge denied the MDOC’s request to dismiss the case, and it was class action certification in August, effectively allowing it to proceed on its merits.


It’s Not Over: Federal Problems Ahead

The issue of religious refusal is far from over.

Over the summer, U.S. Attorney General Jeff Sessions announced the creation of a “Religious Liberty Task Force,” further signaling to vulnerable populations a lack of equal protection under the law. Shortly thereafter, Donald Trump’s administration issued a directive expanding a religious exemption for federal contractors accused of discrimination.

More recently, reports indicate the Trump administration is planning to create a formal “religious liberty” regulation for businesses with federal contracts, potentially setting up a loophole from an Obama-era policy protecting LGBTQ workers.

Danielle Emerson

Danielle Emerson