Michigan Attorney General Dana Nessel argued before the Michigan Supreme Court Wednesday morning that “sex,” as defined under the state’s civil rights law, prohibits discrimination based on an individual’s sexual orientation.
Michigan’s Elliott-Larsen Civil Rights Act of 1976 protects people from things like employment and housing discrimination based on religion, race, color, national origin, age, sex, height, weight, familial status and marital status.
Nessel said that one’s sexual orientation falls under the category of sex because the two are “inextricably linked.”
“We’re not asking to amend the law,” Nessel said to reporters after the court proceedings. “We’re just asking the court to change his interpretation of the law, which we submit has been incorrect for the last 46 years.”
Her comments stem from a lawsuit from plaintiffs Rouch World LLC and Uprooted Electrolysis LLC, who sued the Michigan Department of Civil Rights (MDCR) in 2020 after the businesses became the subjects of MDCR complaints for discriminatory practices.
Rouch World, a 300-acre park and wedding venue, declined to host a wedding for a same-sex couple, based on Christian religious beliefs regarding gay marriage.
Uprooted Electrolysis, a hair removal business, cited the owners’ Christian beliefs as the reason it denied service to a transgender woman.
The State Court of Claims eventually ruled that Elliot-Larsen Civil Rights Act doesn’t include protections for sexual orientation, a matter that’s now before the Michigan Supreme Court. The court held oral arguments on the case today and is expected to issue a ruling at a later date.
Read more: Michigan court says companies don’t have to serve customers who are gay - mlive.com
Plaintiffs’ attorney David Kallman argued that the plain meaning of the law and the word “sex” did not cover sexual orientation.
“We should not go through these tortured attempts to change a word that everybody understood and knew what it meant for 45 years to try to achieve a result that should be achieved with the voice of all of the people in the legislature,” Kallman said.
He said that the MDCR itself previously read the law to not include sexual orientation and gender identity, and noted in a report eight years ago that they couldn’t handle sexual orientation and gender identity cases until authorized to do so through a change to the law.
John Bursch, attorney for the MI Family Forum and Alliance Defending Freedom, stated that the court would be stepping outside its judicial role by “re-writing a public law” to find it covered LGBTQ individuals. He said the public knew from the law’s inception that it did not cover sexual orientation and gender identity, which is why people and interest groups have sought to change the law’s language to cover those groups.
”You’ve got to let the people work these things out,” he said.
The Supreme Court’s next decision sets up a potentially landmark ruling that could fulfill the long-sought effort by LGBTQ people and supporters to extend civil rights protections, although it would take additional legislation to officially spell out those protections under the Elliot-Larsen Civil Rights Act.
Regardless of the court’s decision, Nessel said she’d continue to advocate for sexual orientation to be added to Elliot-Larsen as a safeguard.
“You definitely don’t want a new court, you know, a few years from now saying, ‘Well, we’ve changed our mind about that,’ you know, and so I think it is good to have expressly in there,” Nessel said.
Both sides of the case did recognize that if the Supreme Court decides to add sexual orientation protections under Elliot-Larsen, this could eventually result in more cases related to religious discrimination later on.
“There’s absolutely going to be some religious objections, that that, you know, from a constitutional perspective, you know, people will be entitled to it,” Nessel said. “This isn’t a question of what the church can do... this is like a regular coffee shop or regular café or regular swimming pool that is not principally based on a particular religion.”
Bursch said to avoid possible contingency, this is something the public should decide on at the voting booth, not the courts.
“If you rewrite Elliott Larson, so it has a broader scope, but you don’t include a religious exemption, then all kinds of things are gonna happen that the people didn’t anticipate,” Bursch said. “So it’s precisely because of the legislative process or the ballot initiative process, that people can come together to talk about their differences, and then reach compromises that protect everyone.”
A long-time proponent of LGBTQ rights, Nessel said issuing an overall ruling on the protection of a person’s sexual orientation is long overdue.
“I think we had some incredibly strong arguments,” Nessel said. “I think that the court is aware of what the right thing to do in this circumstance, and I look forward to hearing their opinion.”
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