Michigan high court bars discrimination on sexual orientation

Beth LeBlanc
The Detroit News

Lansing — The Michigan Supreme Court on Thursday ruled Michigan's current laws against discrimination based on sex includes a ban on discrimination based on sexual orientation, a ruling that effectively stops businesses from denying services, housing or employment opportunities to the gay community. 

The ruling also left intact a lower court ruling that found gender identity also was protected under the law's protections for "sex."

The 5-2 decision written by Republican-nominated Justice Elizabeth Clement found that discrimination based on sexual orientation involves bias based on sex because the individual's sexual orientation is "generally determined by reference to their own sex."

Michigan Supreme Court justices (from left) Elizabeth T. Clement, David F. Viviano, Stephen J. Markman, Chief Justice Bridget M. McCormack, Brian K. Zahra, Richard H. Bernstein and Megan K. Cavanagh, listen to a case.

"In other words, the determination of sexual orientation involves both the sex of the individual and the sex of their preferred partner; referring to these considerations jointly as 'sexual orientation' does not remove sex from the calculation," Clement said.

She was joined by the court's four Democratic-nominated justices in the opinion that settled an issue long debated in Michigan's judiciary and Legislature.

The case arose in 2019, when the Michigan Department of Civil Rights began an investigation into two separate businesses that denied services to a gay couple and a person transitioning from a man to a woman. 

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 because it conflicted with religious beliefs.

Attorney Dave Kallman filed suit on behalf of the businesses, arguing the department was conducting an investigation based on an allegation not protected by the state's anti-discrimination law.

Kallman has said in the past that should the Supreme Court rule the law included sexual orientation protections, he would challenge the law itself on the grounds that it was an unconstitutional infringement on freedom of religion. That challenge is pending in the Michigan Court of Claims. 

On Thursday, Kallman said his clients' case now will pivot to a defense of their First Amendment rights.

"The Michigan Supreme Court majority today failed to follow the rule of law and substituted itself for the people and their representatives," Kallman said in a statement. "The court is not the proper branch of government to amend and change state law."

Justice David Viviano, a Republican-nominated justice, acknowledged the coming challenge in his dissent. 

"The majority has reached its interpretation today without any concern for whether that interpretation violates constitutional protections of religious liberty," Viviano wrote. "This departs from the normal principle that courts will first consider whether an interpretation raises grave constitutional doubts before adopting that interpretation."

Dana Nessel, Michigan's first openly gay state attorney general, celebrated the decision Thursday and noted it fell on her seventh wedding anniversary. 

She called the decision a "victory" but also urged the Legislature to codify the protections into state law in a bid to remove them from the potential of changing court opinions in the future.

"It brings tolerance," Nessel of Thursday's decision. "It brings an understanding that we’re all different. It brings dignity for the nearly 500,000 who identify as LGBTQ who live here in Michigan. It also, I think, will lead to fewer hate crimes.”

Gov. Gretchen Whitmer said Thursday the decision made the state "more free and fair than it was yesterday."

"This is a monumental victory that ensures our LGBTQ+ community is seen equally by state law and protected by it," Whitmer said. 

Senate Majority Leader Mike Shirkey, R-Clarklake, said he respected the court's decision, but had concerns about some of the effects of the ruling. Several GOP legislative leaders have argued against an amendment putting "sexual orientation" into the law without also providing for religious exemptions.

"All people deserve to be treated with dignity and respect," Shirkey said in a statement. "This includes those with firmly held religious beliefs. My great hope is that, going forward, our society, laws and court rulings will recognize our faith-based institutions and communities with the respect, dignity and rights they are clearly provided in our Constitution.”

What ruling says

The debate over whether the Elliott-Larsen Civil Rights Act contains such protection for gay individuals or whether such protections should be added to the act through the Legislature has been ongoing for years.

In 2018, the Michigan Department of Civil Rights announced its interpretation that law protected against discrimination based on gender identity and sexual orientation under the ban on discrimination based on "sex."

In the current case, Court of Claims Judge Christopher Murray ruled in December 2020 that federal court precedent established "gender identity" did fall under the definition of "sex." But Murray said a 1993 Michigan Court of Appeals opinion prevented him from including sexual orientation in that decision.

The 1993 Court of Appeals case was overturned by the Supreme Court's Thursday decision.

In her opinion, Clement wrote that arguments that the Legislature expressly left out sexual orientation while enacting the law in 1976 fail, noting lawmakers also didn't anticipate the law's ability to protect against pregnancy discrimination or other sex-stereotyping cases.

"The Legislature’s failure to foresee particular statutory applications does not prohibit these applications so long as they are consistent with the plain language of the statute," she said.

She also noted the argument that a business or employer treats homosexual men and women equally and is therefore not discriminating against any one sex is no defense. 

"Instead, this practice doubles rather than dissolves liability because the (Elliott-Larsen Civil Rights Act’s) focus is on individuals rather than groups," she wrote.

"Were a business to discriminate against both a homosexual male and a homosexual female, the business would be subject to liability under the ELCRA for both because in both cases the business discriminated against the individual for traits it otherwise would have tolerated in a different sex."

What dissents said

Republican-nominated Justice Brian Zahra, in a dissent, said he took no issue "with the merits of the policy adopted" or the intentions of the majority.

But the Legislature or the people through petition initiative are the only ones able to write, repeal or amend Michigan laws, Zahra noted in an opinion joined by Viviano. For the court to do otherwise, "it is a clear violation of the Michigan Constitution's separation of powers," he wrote.

"... this court’s duty is to say what the law is, not what it thinks the law ought to be," Zahra wrote. "But this is exactly what a majority of this court has done here."

The Legislature explicitly chose not to include sexual orientation in the 1976 law, Zahra wrote, and the reference to "sex" in the law refers only to whether an individual is a biological male or biological female.

"No person familiar with the common usage of the English language in 1976 would have understood the ordinary meaning of 'sex' to include 'sexual orientation,'" wrote Zahra, who argued the two terms are "distinct concepts."

Viviano noted separately that the majority's ruling ignores the need to establish "discriminatory intent" to apply the law. 

"When defendants discriminate on the basis of sexual orientation, they are not discriminating based on a trait solely related to men or to women," Viviano said. "Thus, a policy based on sexual orientation does not have a discernable effect on or aim against one biological sex over the other."