Nessel urges LGBT bias probes, says Schuette opinion not binding

Jonathan Oosting
The Detroit News
Michigan Attorney General Dana Nessel.

Lansing — Michigan Attorney General Dana Nessel said Tuesday the state can continue to investigate allegations of anti-gay discrimination despite her predecessor’s legal opinion that the Michigan Civil Rights Commission overstepped its authority when re-interpreting existing law.

Nessel declined the commission’s request to reconsider the 2018 opinion by former Attorney General Bill Schuette, citing related litigation the U.S. Supreme Court could decide later this year. 

Because the high court is expected to decide whether federal protections against sex discrimination also prohibit bias based on sexual identity or orientation, “these specific circumstances warrant this office’s conclusion that the commission” is not bound by Schuette’s opinion, Nessel’s chief legal counsel Suzanne Sonneborn said in a letter.

“I urge the commission to continue its important mission to investigate allegations of unlawful discrimination and to secure the equal protection of civil rights without such discrimination, and I look forward to working together with the commission in doing so,” Nessel said in a statement.

The Michigan Civil Rights Commission effectively extended anti-discrimination protections to gay and transgender residents in May 2018 through an interpretive statement that allowed the Department of Civil Rights to investigate workplace and housing bias claims under an existing law banning sex-based discrimination.

But Republican lawmakers questioned the commission's authority and requested an opinion from Schuette, who deemed the interpretation “invalid.”

In a legal opinion typically binding on state agencies, the Midland Republican said the interpretive statement conflicts with the “plain meaning” of the state’s anti-discrimination law. Only the Legislature has the authority to expand the law, Schuette said at the time.

The commission had asked Nessel, a Plymouth Democrat who has championed gay rights and took office in January, to reconsider Schuette’s opinion. Nessel had welcomed the request in February but her office ultimately declined to issue another attorney general opinion because of ongoing federal litigation.

“It is a longstanding policy of this office to decline to provide an opinion with respect to issues that are pending in, or likely to become the subject of, litigation or an administrative proceeding,” Sonneborn said in a letter to commissioners.

A spokeswoman for Senate Majority Leader Mike Shirkey, R-Clarklake, questioned Nessel's rationale for advising that Schuette's opinion is non-binding. 

The attorney general "seems to have put herself and the authority of her office in a precarious position," said Amber McCann. "Based on her logic, an AG opinion has no weight in the face of pending litigation."  

House Speaker Lee Chatfield, R-Levering, also questioned the advice.

"Under the chief legal counsel's logic, the attorney general's opinions from earlier this year halting construction of the Mackinac Straits tunnel and threatening the integrity of the petition gathering process no longer bind state agencies because the underlying questions are the subject of pending litigation," Chatfield said in a statement, referencing GOP laws at least temporarily upended by Nessel.

"I look forward to seeing how this policy change plays out, and hopefully Michigan families will get the reforms they were promised and that they deserve."

The Supreme Court announced in April that it will take up three separate cases questioning whether federal employment laws already protect gay and transgender employees from discrimination, including one case that originated in Michigan.

Funeral director Aimee Stephens of Metro Detroit alleges she was fired by the R.G. and G.R. Harris Funeral Homes in 2013 after disclosing to her boss that she was transitioning from male to female and would begin following the home’s dress code requirements for women.

Nessel said she plans to file a Supreme Court brief in the Harris case "supporting the position that Title VII prohibits gender-identity and sexual-orientation discrimination."

But the advice issued Tuesday is unlikely to have a major impact on the civil rights commission, which had already decided to ignore Schuette’s 2018 opinion.

The Department of Civil Rights has continued to “process complaints of discrimination” based on the commission’s interpretive statement, said spokeswoman Vicki Levengood.

In a statement, Director Agustin V. Arbulu said the department is “deeply appreciative” that Nessel is “respecting both the proper role of the courts and the power of the commission.”

He said “uncertainty” caused by the legal situation “once again points to the need for the Legislature” to amend the Elliott-Larsen Civil Rights Act of 1976 to to ensure “all individuals in Michigan are protected from discrimination.”

Gov. Gretchen Whitmer and legislative Democrats this month renewed their calls and reintroduced legislation to update the law with defined protections for gay and transgender residents.

But Republicans control both chambers of the Legislature, and Shirkey and House Speaker Lee Chatfield of Levering have not endorsed expanded protections for gay residents, citing religious freedom concerns.