Nessel says justice demands review of LGBTQ opinion

Jennifer Chambers
The Detroit News
Michigan Attorney General Dana Nessel addresses Michigan Civil Rights commissioners Friday at Cadillac Place in Detroit.

Detroit — With acts of discrimination occurring frequently against the LGBTQ in Michigan, Attorney General Dana Nessel told the state Civil Rights Commission on Friday it's her duty to review a legal opinion that could expand the state’s civil rights law to include protections from discrimination based on sexual orientation and gender identity.

"I believe it is incumbent upon me examine this opinion," said Nessel, referring to a 2018 interpretation holding that discrimination based on sexual orientation and gender identity is already illegal under state law prohibiting "sex" bias.

"Justice demands no less."

In a 6-0 vote on Friday, the commission approved a resolution directing the Michigan Department of Civil Rights to send a letter to Nessel asking her to reconsider a formal opinion by her predecessor. Commissioners Regina Gasco Bentley and Rasha Demashkeih were excused from the meeting. 

Nessel said after the meeting that she welcomes the opportunity.

“There are probably going to be times when I just have a fundamental disagreement on the legal interpretation of a particular law, and I will tell you now, this is one of those times,” Nessel said.

Nessel, a Democrat, told the commission that she will accept its request and review a prior interpretation by former Attorney General Bill Schuette, a Republican.

"The ugly reality is that discrimination against the LGBTQ community does occur on a daily basis in this state," Nessel told the commission. "Isn't any discrimination too much discrimination?" 

The Civil Rights Commission in May issued an interpretive statement holding that current law offers some protections for gay and transgender residents.

In July, Schuette said only lawmakers could make that call, but the commission ignored his opinion, and the Michigan Department of Civil Rights has continued to investigate complaints based on sexual orientation and gender identity. It's now investigating eight cases of alleged discrimination based on sexual orientation and five based on gender identity or expression.

Dominic Burkhard, a pastor from Swartz Creek, spoke to the commission Friday after Nessel and said he agrees with Schuette that only state lawmakers can amend the law.

“We do believe God set boundaries to society, and that as a society and as a nation, to defend what is past God’s boundaries, is making a mistake,” he said.

The request for a new attorney general opinion was announced after Republican state House Speaker Lee Chatfield recently made clear he does not plan to hold a vote this term on any gay rights legislation.

“I do not believe we can pass this law while still protecting religious freedom,” said Chatfield, R-Levering, last week during a taping of “Off The Record” on WKAR-TV.  “You’ve seen these laws passed in other states where what happens, in my opinion, is a reverse discrimination against those who have religious beliefs.”

Advocates had hoped to expand anti-discrimination laws under Democratic Gov. Gretchen Whitmer. But GOP Senate Majority Leader Mike Shirkey also has raised concerns, signaling a two-chamber roadblock that could limit advocates to legal or administrative changes.

Chatfield, a former Christian school teacher and son of a Baptist pastor, has not been shy about his opposition to gay rights legislation. He won election to the state House in 2014 after knocking off an incumbent Republican he criticized for pushing to expand the state’s anti-discrimination law.

On Friday, Nessel told the commission what she would tell Chatfield: "I believe you are a good man, a kind man and a well-intentioned man. But Mr. Speaker, what you don't know about discrimination against the LGBTQ community could fill not only the pages of a book but that of an entire library."

A comment from Chatfield's office was not immediately available.

Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan’s LGBT Project since 2001, called Chatfield's comments “silly.”

The religious liberty argument is a “political tactic” and a “plot to try to deny LGBT people the same fair treatment and dignity as everyone else in Michigan,” he added.

The Elliott-Larsen Civil Rights Act of 1976 prohibits discrimination in employment, public housing and places of public accommodation based on factors such as religion, race, color, national origin, age, sex, height, weight or marital status.

Despite active investigations by the Michigan Department of Civil Rights, advocates say broader protections are still needed and should be written into state law to ensure a lasting effect.

“We have taken steps forward to provide some remedies for LGBT discrimination,” Kaplan said, “but we still have a long way to go.”

Opposition by Chatfield and Shirkey, who sponsored a "religious freedom restoration" proposal in 2015 after Michigan’s same-sex marriage ban was ruled unconstitutional, would effectively maintain the status quo in Lansing.

The GOP-led Legislature in recent years has sat on gay rights bills despite support from a business coalition and gentle encouragement by former Gov. Rick Snyder, a Republican.

Shirkey recently told The Detroit News that Democratic efforts to expand the Elliott-Larsen Civil Rights Act to include new anti-discrimination protections for gay and transgender residents would likely be “heavily contested” in the GOP-led Legislature.