(Source: MIRS.news, Published 07/28/2022) Michigan's Elliott-Larsen Civil Rights Act (ELCRA) provides protections based on "sexual orientation," the Michigan Supreme Court held Thursday.
In a 5-2 opinion from Republican-nominated Justice Elizabeth Clement, the court held that state law bans businesses, landlords and others from discriminating based on LGBTQ status.
The court's four Democratic-nominated justices joined Clement, who wrote that "discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex."
"Regardless of whether one defines 'sex' expansively or narrowly, the result of the textual analysis is the same: discrimination on the basis of sexual orientation necessarily involves discrimination because of sex in violation of (state law)," she added.
Republican-nominated Justice Brian Zahra, who dissented, said he has "no doubt" his colleagues "are acting in good faith, with pure hearts and the best of intentions." However, the "Legislature – or the people through the exercise of direct democracy – bears the ultimate responsibility to write, amend, or repeal the laws of this state" and the court's duty is not to say "what it thinks the law ought to be."
Justice David Viviano also dissented. He agreed with Zahra's interpretation that the original public meaning of "sex" when ELCRA was passed does not include "sexual orientation," and he concluded the majority "twisted the meaning" of the statute.
"No one contends that plaintiffs here are motivated by any prejudice, bias, or animus against, or belief about, men qua men or women qua women. They are not accused of misogyny or misandry," Viviano wrote in his dissent.
"Instead, they hold certain views – prejudices, biases, anima, or beliefs – concerning homosexuality. These beliefs – and not anything related to a view on biological sex – are at the center of their policies. The statute simply does not extend this far."
Michigan Attorney General Dana Nessel, the state's first openly gay AG who celebrated her seventh anniversary Thursday, joined by many others, including Gov. Gretchen Whitmer and Lt. Gov. Garlin Gilchrist II, praised Thursday's decision.
"It's an incredible day for us here in Michigan, and it's a day for justice for us to celebrate equal rights and equal protection under the law for hundreds of thousands of our state residents that didn't previously enjoy that protection," Nessel said in a media call early this evening. "… It doesn't mean fewer rights for anyone else."
The opinion comes in Rouch World LLC et al. v. Michigan Department of Civil Rights et al.
Rouch World, whose core tenets of its Christian faith is marriage between one man and woman, was asked to host a same-sex wedding in April 2019, but declined "because it conflicted with their sincerely held religious beliefs."
The other plaintiff, Uprooted Electrolysis, refused to provide services to a transgender woman because its religious beliefs would not allow participation in a person's "transition process from a man to a woman."
In December 2020, Court of Claims Judge Christopher Murray held ELCRA provides protections for "gender identity," but doesn't prohibit discrimination against a person because of "sexual orientation."
The majority relied on the 2020 U.S. Supreme Court ruling in Bostock v. Clayton County that affirms a federal ban on discrimination due to sex also covers sexual orientation. It's the same case Nessel's team cites.
"Sexual orientation is 'inextricably bound up with sex,' because a person's sexual orientation is generally determined by reference to their own sex," Clement wrote, quoting the Bostock opinion from conservative Justice Neil Gorsuch.
"For example, attraction to females in a fellow female is considered homosexual, while the same trait in a male is considered heterosexual; the sex of the individual at issue is necessary to determine their sexual orientation. To discriminate on the basis of sexual orientation, then, also requires the discriminator to intentionally treat individuals differently because of their sex," she added.
Praise for the court's decision came quickly.
The American Civil Liberties of Michigan, which filed a friend-of-the-court brief in the case and argued in March before the court, applauded Thursday's decision.
Progress Michigan called it a "great victory" and Oakland County Executive David Coulter called the decision “welcome, and long overdue news.” Sandy K. Baruah, president and chief executive officer for the Detroit Regional Chamber, called it a "positive development for Michigan in its ongoing battle to attract and retain talent."
"The Chamber, alongside other business interests and leading employers, continues to call for inclusion of sexual orientation and gender identity protections in the Elliott-Larsen Civil Rights Act," he added.
Donna Stephens, the widow of Aimee Stephens, a funeral director who was fired for being transgender and whose discrimination case went to the U.S. Supreme Court, expressed sadness that her wife did not live to celebrate the decisions.
"But her legacy lives on," Donna Stephens said in a statement. "The path that she helped blaze opened the way for this important ruling by the Michigan Supreme Court. Countless people will benefit as a result."
Aimee Stephens died in May 2020 and the U.S. Supreme Court's opinion siding with her was released the following June.
