Nessel appeals sex discrimination case to Court of Appeals, Michigan Supreme Court

Beth LeBlanc
The Detroit News

Lansing — Attorney General Dana Nessel has asked the state Court of Appeals and Michigan Supreme Court to rule that Michigan's anti-discrimination law protects people against unequal treatment based on both gender identity and sexual orientation. 

The appeals ask both courts to consider overturning a lower Court of Claims decision that found Michigan's Elliott-Larsen Civil Rights Act only prevents discrimination based on gender identity, not on sexual orientation. 

The appeal to the Michigan Supreme Court, which now has a 4-3 majority of Democratic-nominated justices, seeks "a prompt resolution of this matter."

“The highest judicial body in our country — the U.S. Supreme Court — ruled that discrimination on the basis of sexual orientation is a form of sex discrimination, and that is case law we must not overlook in this current matter,” Nessel said in a statement. 

Michigan Attorney General Dana Nessel.

The plaintiffs in the case Nessel is appealing — two businesses that denied service based on sexual orientation and gender identity — plan to file a response in the state Supreme Court Tuesday asking the court to reject her request to appeal at this time. 

The lower court decision was not complete because the judge has yet to rule on whether the businesses' actions — regardless of the state's anti-discrimination law — fell under constitutional protections for religious freedom and free exercise, said David Kallman, a lawyer for the businesses in the case. 

An appeal before a full Court of Claims opinion would be premature, Kallman said. 

"It’s important for the court to preserve judicial economy and not waste time and assets," the lawyer said. If the judge eventually were to rule the businesses actions were protected by religious rights, "it might be back up to the Supreme Court a second time.”

The state's interpretation of discrimination protections based on "sex" in the Elliott-Larsen Civil Rights Act has been long-debated, with some advocates saying the term includes gender identity and sexual orientation and others arguing those terms have to be specifically noted in the law in order to fall under the discrimination protections. 

Efforts to get the GOP-led Legislature to insert the terms into the law have been unsuccessful, but a ballot committee in December submitted petition signatures to the state to put the question to voters. The petition is still pending. 

In 2018, the Michigan Civil Rights Commission interpreted the anti-discrimination law to include unequal treatment based on both gender identity and sexual orientation. 

The case Nessel is appealing is one of the first formal challenges of the commission's interpretation and stems from a wedding venue that refused to serve a same-sex couple and an electrolysis business that refused to serve a transitioning person. 

In 2019, Sturgis-based Rouch World declined to host and participate in a same-sex wedding ceremony because of religious reservations, and Marquette-based Uprooted Electrolysis denied service to an individual transitioning from a man to a woman, again because it conflicted with religious beliefs. 

Both parties denied service filed complaints with the Civil Service Commission, which began an investigation in 2019 and demanded interrogatories and the production of documents in 2020. 

Kallman challenged the investigation in the Court of Claims, where he argued the commission was conducting the probe based on an allegation not protected by the Elliott-Larsen Civil Rights Act — discrimination on the basis of sexual orientation or gender identity. 

Kallman in August asked Court of Claims Judge Christopher Murray to overrule the commission's interpretation, preventing it from investigating discrimination based on sexual orientation or gender identity.

Murray ruled in December that he would follow federal court precedent in determining gender identity fell under the definition of "sex," but he said a 1993 Michigan Court of Appeals opinion prevented him from including sexual orientation in that decision. 

The conflicting Court of Appeals opinion is part of the reason Nessel appealed to both the state Court of Appeals and Michigan Supreme Court, she said in a Friday statement. 

The Court of Appeals is bound by the prior 1993 decision, unless the appeals court assembles a conflict panel to issue a conflicting decision. 

"But that mechanism is discretionary and, regardless of the outcome, it is highly likely that the losing party would immediately file an application for leave in the Michigan Supreme Court," Nessel's statement said. 

"Because the case involves a jurisprudentially significant issue of substantial legal and public import, it warrants immediate review by the Michigan Supreme Court."