Civil rights commission tables bias ruling again

Karen Bouffard
The Detroit News

The Michigan Civil Rights Commission for the second time Monday tabled a decision on whether state prohibitions against sex discrimination apply to gay and transgender residents amid conflicting legal viewpoints over the authority it has to interpret the law.

The commission first tabled the issue on Sept. 18 after Assistant Attorney General Ron Robinson told the panel it did not have the authority to decide the scale and scope of sex discrimination prohibited by Michigan’s Elliott-Larson Civil Rights Act, as requested by the gay rights advocacy group Equality Michigan. The commission tabled the matter and requested a formal opinion from Michigan Attorney General Bill Schuette.

The commission Monday heard from three law professors who testified that the commission has both the right and the responsibility to interpret Michigan’s civil rights law. They were among scores of legal experts who have sent letters to the commission contesting Robinson’s remarks.

After questioning the three attorneys and Robinson about their conflicting legal opinions, the commission failed to agree on whether to interpret the law.

“Chickens,” said Stephanie White, Equality Michigan executive director, of the commission’s lack of action on the issue. The statement would have allowed the state to investigate alleged discrimination against gay and transgender residents.

“These (commissioners) are nervous about their reputations (but) our community is threatened for our safety.”

Robinson on Sept. 18 told the commission the interpretive statement would cross the line into a form of lawmaking reserved for the Legislature. He said issuing an interpretive statement against his advice would subject commissioners to potential lawsuits.

Robinson’s opinion was strongly contested in a letter signed by 27 attorneys and law professors that was sent to the commission on Oct. 13, saying that “agencies maintain the authority, in the first instance, to interpret the statutes they administer.”

“An assistant attorney general cannot usurp that authority by issuing an ‘informal’ oral interpretation,” the letter said. “Nor is there any legal support for the proposition that the Commission forfeits governmental immunity if it disagrees with an “informal” interpretation offered by an assistant attorney general.”

Mark Totten, a Michigan State University associate law professor, testified at Monday’s commission meeting and is among those who signed the letter.

“Those of us who signed that letter don’t think there’s much to debate here,” he said following his testimony. “The law is pretty clear.”

A ruling could effectively expand protections for gay and transgender residents despite inaction from Michigan’s Republican-led Legislature, which has resisted proposals to update Elliott-Larsen by including sexual orientation or gender identity.

Supporters argue the move would be consistent with recent federal court decisions and provide meaningful protections to people who face discrimination because of their sexual orientation or gender identity.

Critics suggested the decision could lead to reverse discrimination against religious people and argued that only lawmakers have the authority to expand civil rights protections.

White, from Equality Michigan, said Robinson’s comments were motivated by politics at a time when Shuette is running for governor.

“Obviously the attorney general is avoiding the clear point of law,” White said following Monday’s commission meeting. “He has political goals rather than the goal of following the law.”

Jonathan Oosting contributed to this report.