5-2 decision solidifies state protections for sexual orientation, gender identity
The Michigan Supreme Court ruled Thursday that discrimination on the basis of sexual orientation and gender identity is unconstitutional, reversing a decision from a lower court.
“It’s an incredible day here in Michigan,” Democratic Attorney General Dana Nessel said during a post-ruling virtual press conference. “… It means respect. It means equal dignity under the law. No more, no less.”
In the landmark Rouch World LLC et al v Michigan Department of Civil Rights et al case, Nessel, on behalf of the Michigan Department of Civil Rights (MDCR), argued that the state’s anti-discrimination act should be interpreted to include protections for sexual orientation because the term “sex” in the act’s language is so broad.
Five of the seven Michigan Supreme Court justices agreed — four nominated by Democrats and one nominated by the GOP. Justices Brian Zahra and David Viviano, both nominated by Republicans, dissented.
“Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex,” the majority of justices wrote in their conclusion.
Democratic Gov. Gretchen Whitmer called the decision a “monumental victory.”
“As a mom, a governor and proud ally of the community, I am so grateful for this ruling. It will save lives, protect families and help ensure that every Michigander is treated with dignity and respect by law,” Whitmer said.
In 2019, the MDCR investigated businesses who reportedly refused to serve LGBTQ+ people based on their sexual orientation, claiming it infringed on their religious rights. Rouch World, an event center in Sturgis, refused to host a wedding for a lesbian couple and Uprooted Electrolysis, a hair removal salon in Marquette, denied service to a transgender woman.
In October 2021, a Court of Claims judge ruled that sexual orientation does not fall within the meaning of sex under Elliott-Larsen Civil Rights Act because of a 1993 Court of Appeals ruling in Barbour v Department of Social Services. The plaintiff in the Barbour case claimed he was harassed by coworkers because of his sexual orientation, which led him to leave his job.
“Sexual orientation is ‘inextricably bound up with sex,’” the majority writes in the court’s Thursday ruling.
“Although sexual orientation and gender identity are distinct concepts from sex, discrimination on the basis of the former two concepts necessarily entails discrimination on the basis of the latter.”
Nessel was joined in the press conference by U.S. Rep. Haley Stevens (D-Rochester Hills); Oakland County Executive David Coulter; state Sens. Jeremy Moss (D-Southfield) and Dayna Polehanki (D-Livonia); and state Reps. Regina Weiss (D-Oak Park), Matt Koleszar (D-Plymouth) and Julie Brixie (D-Meridian Twp.).
“Historically, when we have these types of cases and we have progress that allows for people to be protected, again, no one’s life is going to be any worse for it. But a whole lot of people are going to have their lives get much better,” Nessel said.
“… At long last, we have protections for sexual orientation and gender identity in so many different areas that we never did before.”
Moss and Weiss spoke of the importance of electing more equality-minded state lawmakers in the Nov. 8 general election so the state can codify the protections into Michigan law, while Stevens emphasized that she and others in Congress “will not stop” until the Equality Act is passed into federal law.
“This is a moment worthy of celebration, a needed glimmer of light for our LGBTQ community in an otherwise dark and uncertain time,” Moss said. “And it is evidence that there is a path forward toward equality and acceptance in the face of too much hatred and division.”
Erin Knott, Equality Michigan executive director, called on the GOP-led Legislature to amend ELCRA through legislation to explicitly include “sexual orientation” and “gender identity and expression.”
Moss introduced a bill in March 2021 to do just that, but that bill was referred to the Government Operations Committee, where bills traditionally go to die, and hasn’t been given a hearing.
Nessel noted that although the ruling should be celebrated, the work is not yet done. She said there is a risk that a future GOP-nominated-majority court could overturn the decision, since the expansion to ELCRA has not been codified into law.
“We’re facing some uncertain times, especially in view of the Dobbs [v. Jackson Women’s Health Organization] decision [overturning the constitutional right to abortion]. … The principle of stare decisis doesn’t seemingly apply any longer. So at any time, it means that when the members of a court change, so could the opinions of that court,” Nessel said.
Nessel called for a new constitutional amendment that will specifically address that problem, and said Michiganders must start gearing up to defend LGBTQ+ rights now.
Freedom of religion does not equal freedom to discriminate against LGTBQ+ people in Michigan. And while we are grateful that the Michigan State Supreme Court ruled in our favor, the fight does not stop there.
– Equality Michigan Executive Director Erin Knott
“We should get ready for this for 2024, because I do see it on the horizon and we have to be proactive about it,” she said.
“I think that voters will do the right thing. And I think that voters will want to see these protections stay in place, and I remain hopeful that in the future we will keep these protections and they’ll just be part of our everyday life.”
Knott called the decision from the state’s highest court an “an extraordinary win” and said it is “absolutely fitting” that Nessel, Michigan’s first openly gay top statewide elected official, was the one to make the argument to the Supreme Court.
“Freedom of religion does not equal freedom to discriminate against LGTBQ+ people in Michigan,” Knott said. “And while we are grateful that the Michigan State Supreme Court ruled in our favor, the fight does not stop there.”
Thursday’s ruling coincided with Nessel’s seventh wedding anniversary.
“As I have said many times, you’ll pry this ring off of my dead gay hand — because I am retaining a lot of water. I’ve gained about 10 pounds since I got married. So it’s gonna be very difficult,” Nessel said.
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