Michigan religious groups under new state threat

A recent ruling by the Michigan Supreme Court expanding the state’s civil rights law could force faith-based organizations with Biblical beliefs about sexual orientation and gender identity into conflict with state law.

One church did not wait to be caught up in the law. St. Joseph Catholic Church, which operates an elementary school in St. Johns, Mich., filed a lawsuit in federal district court on Dec. 5 against Michigan’s attorney general and other state officials, asserting the law violates its rights under the U.S. Constitution.

The Diocese of Lansing, including St. Joseph, requires the church and its school to “respect the biological sex of the human person as given by God and … apply all policies and procedures in relation to that person, according to that person’s God-given biological sex.” It also requires that students and their parents conduct themselves in accord with their “God-given biological sex.” All church and school staff must pledge to model the moral teachings of the Roman Catholic Church and “not teach, advocate, model, or in any way encourage beliefs or behaviors that are contrary” to its teachings.

At the school, that policy means all men and women, and all boys and girls, are treated according to their biological sex. This includes dress codes, pronoun use, sports participation, and the use of restrooms and locker rooms.

But those and other practices related to human sexuality at St. Joseph could now be illegal under state law.

Trouble began in 2018 when the state’s Department of Civil Rights concluded the definition of “sex” in Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) should include sexual orientation and gender identity. The department began investigating businesses on that basis.

Less than two years later, the U.S. Supreme Court issued its Bostock v. City of Clayton ruling interpreting Title VII of the Civil Rights Act of 1964. Title VII has long prohibited employment discrimination on the basis of one’s biological sex. The Bostock decision interpreted “sex” in the federal employment statute to include sexual orientation and gender identity. That decision received a strongly-worded dissent from Justice Samuel Alito, who argued that the court had engaged in legislation from the bench. He also warned that the decision would have far-reaching consequences, including threats to freedom of religion, freedom of speech, personal privacy, and safety.

On July 28 of this year, the Michigan Supreme Court followed the ruling in Bostock. It decided that the word “sex” in ELCRA now also prohibits discrimination on the basis of sexual orientation and gender identity.

The Michigan decision, however, gives rise to a much greater threat to faith-based organizations than under Title VII. Bostock expressly recognized that employers with religious convictions are protected from the impact of that decision by the U.S. Constitution, as well as by exemptions in laws adopted by Congress. But the Michigan court’s ruling is silent on concerns for religious liberty, and ELCRA contains no exemptions for religious convictions related to the new definition of “sex”. 

ELCRA is also broader in scope than its federal counterpart, Title VII. It applies to all employers regardless of the number of employees and to all educational institutions and places of public accommodation. That leaves faith-based Michigan organizations with Biblical views of sexual orientation and gender identity exposed to possible enforcement actions by state civil rights officials. St. Joseph’s lawsuit, filed by Becket Fund’s William Haun, details some of the risks.

For example, St. Joseph’s church is a place of public accommodation. The public is welcome to attend Masses and other functions. The school’s sports fields and gymnasiums are used by sports leagues and are also open to all. Yet now St. Joseph could be liable for sex discrimination because male attendees are required to use male-only restrooms with no option of using female restrooms or playing on female sports teams.

St. Joseph’s is also an employer. Under ELCRA, it cannot seek, or hire, only employees who are willing to agree to comply with the church’s teachings on homosexuality or transgenderism. As a school, St. Joseph’s practice of maintaining and enforcing a code of conduct based on Catholic teachings about marriage, family, and gender identity also puts the church on a collision course with state law.

Tom Kapanka, the Michigan representative for the Association of Christian Schools International and administrator of Calvary Christian School in Fruitport, Mich., said all of Michigan’s ACSI schools share the concerns expressed by St. Joseph in its lawsuit.

His comments were echoed by the executive director of the Michigan Association of Non-Public Schools, which represents more than 400 schools in Michigan. Brian Broderick said concerns about religious liberty are increasingly prominent in discussions among schools. He has heard discussions about trying to get an amendment passed to allow for religious exemptions in ELCRA, but he was unaware if that idea had gone any further.

Becket Fund’s Haun is upbeat about the potential outcome of St. Joseph’s lawsuit. He noted that the Bostock court expressed concern for “preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.” Less than a month later, the court issued a decision in Our Lady of Guadalupe School v. Morrissey-Berru that reaffirmed the right of religious institutions to decide for themselves, free from state interference, matters of faith and doctrine. Haun thinks St. Joseph is “on a path to a strong victory here.”