Gay rights fight goes to Schuette after tense debate

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — The Michigan Civil Rights Commission on Monday delayed deciding whether existing prohibitions against sex discrimination should provide protections for gay and transgender residents as it seeks more legal advice from state Attorney General Bill Schuette.

The eight-member commission, appointed by GOP Gov. Rick Snyder, requested a formal opinion from Schuette 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 under current state law.

The legal analysis from Robinson came after more than two hours of public comment on the request for an interpretive statement by gay rights advocacy group Equality Michigan, exasperating commissioners and gay rights advocates.

“This exercise was for nothing, pretty much,” said commission co-chair Rasha Demashkieh, a political independent who argued Schuette’s office had essentially “barred” the panel from deciding the issue.

“We are the Civil Rights Commission. We are here to prevent discrimination, and at this juncture, we’re told we have not recourse, that we know about discrimination but there’s nothing we can do about it.”

The commission could revisit the request from Equality Michigan, which had asked it to declare discrimination based on sexual orientation or gender identity as a form of prohibited sex discrimination. The statement would have allowed the state to investigate alleged discrimination against gay and transgender residents.

Robinson told the commission the interpretive statement would cross the line into a form of lawmaking reserved for the Legislature. Issuing the statement against his advice would subject commissioners to potential lawsuits, he said.

Demashkieh is “properly upset,” said Michigan Department of Civil Rights Director Augustin Arbulu after the meeting.

The Attorney General’s Office originally said it would recuse itself from the matter, Arbulu said. The department did its own research and concluded the commission had the authority to issue an interpretive statement. Late Friday, the Attorney General’s Office “reversed itself” and said it would provide an opinion, Arbulu said.

“As a result, the chair is quite upset, and rightfully so, with the tactics of the AG’s office, or should we say their approach with regards to this matter.”

The commission voted 6-2 to table the request pending Schuette’s formal opinion, an approach opposed by Republican appointee Linda Lee Tarver.

“We are kicking the can,” she said, suggesting the commission vote against issuing any statement at all, as recommended by the assistant attorney general. “We have a group of people that came here for a decision.”

The issue now falls to Schuette, a Midland Republican who last week announced his campaign for governor.

“The Legislature creates laws, not commissions,” said Andrea Bitely, a spokeswoman for Schuette, after the meeting.

Despite inaction, the hearing was not a futile exercise, said Nathan Triplett of Equality Michigan.

“I think in the end, the result we saw today had far more to do with personal bias and the attorney general’s political ambition than it had to do with the law, the civil rights of Michiganders or what’s best for our state,” Triplett said.

Monday’s commission meeting punctuated an ongoing battle over gay rights that has continued to intensify since 2015, when the U.S. Supreme Court struck down same-sex marriage bans in Michigan and other states.

The commission, established by Michigan’s 1963 Constitution, is tasked with investigating alleged discrimination against residents and securing “the equal protection” of civil rights for all people.

Snyder appointed the eight members, four Republicans, one Democrat and three independents. The constitution prohibits more than four members of any one political party from serving on the panel.

The ruling would have effectively expanded protections for gay and transgender residents despite inaction from Michigan’s Republican-led Legislature, which has resisted proposals to update the Elliott-Larsen Civil Rights Act of 1976 by including sexual orientation or gender identity.

Supporters argued 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.

Grace Bacon, a transgender woman and longtime activist from Clinton Township, said she has faced discrimination and seen friends commit suicide or develop drug addictions because of mistreatment.

“I’ve had things thrown at me,” she said.

“I’ve been asked to leave restaurants and bars. I’ve lost more jobs than I can count because I’ve been fired. ... This should not happen in our country. It’s very clear our constitution says there is equal protection under the law.”

State Sen. Patrick Colbeck, a Canton Township Republican who is running for governor, said the Legislature has not updated civil rights law because a majority of legislators are opposed to doing so.

“It’s time for the Legislature to make laws, the executive branch to execute the laws, the judicial branch to interpret people’s compliance with that law,” Colbeck said, “otherwise we develop into a pee-wee hockey game, and that’s when we lose our respect for government.”

Jay Kaplan, an attorney with the American Civil Liberties Union of Michigan, told the commission the requested interpretation is “not something radical,” citing recent federal court decisions expanding the legal definition of sex discrimination.

Gay and transgender residents have lodged more than 500 complaints of alleged discrimination with the ACLU over the past 17 years, Kaplan said.

“LGBT discrimination is alive and well in our state,” he said. “Despite the fact we have 40-plus cities and townships with ordinances, they do not have the same comprehensive remedies the civil rights law provides.”

Several Christian pastors spoke out against the proposal. They warned LGBT protections could be used as a “sword” against business owners or other people with religious or moral objections to homosexuality.

“This measure and others like it are a hostility to people of faith,” said Jason Georges, a pastor at Immanuel Baptist Church in Corunna. “It is a bully tactic to force people to believe and act in a manner contrary to their religious conscience.”

The interpretive statement would not guarantee a pre-determined outcome in cases of alleged discrimination, it would simply “open the door” to consideration of their cases, said Steph White, executive director of Equality Michigan.

“We, like everyone else, just want an opportunity to earn a living, support our families and feel safe” from discrimination, said Glenna DeJong, who married her longtime partner Marsha Casper in 2014. It was Michigan’s first same-sex marriage but was not recognized by the state until the 2015 Supreme Court ruling.