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Whitmer, ACLU and Catholic group speak out on Michigan law and sexual orientation

Several groups filed their positions last week with the Michigan Supreme Court on whether the state’s anti-discrimination law should include protection based on sexual orientation in a case that could address a long time.

Groups filed six amicus briefs in a case questioning whether Michigan’s ban on “sex” discrimination includes discrimination based on sexual orientation – a case Attorney General Dana Nessel plans to personally plead in the Michigan Supreme Court. Nessel, the state’s first openly gay attorney general, was a leading advocate in a landmark lawsuit that opened the door in 2015 for all same-sex couples to legally marry in the United States.

Amicus briefs, also known as “friend of the court” briefs, are external documents indicating the support of one party or another in a legal action. The documents are intended to give the High Court additional legal arguments and perspectives supporting or opposing a given issue.

Among those supporting the inclusion of protections for sexual orientation are eight county attorneys, Gov. Gretchen Whitmer, Michigan realtors, the American Civil Liberties Union, the Michigan Association of Justice, and a Detroit health center. focused on LGBT healthcare needs.

On Friday night, the Michigan Catholic Conference was the only friendly group to oppose the inclusion of sexual orientation as a protected class.

There is a Monday deadline for weighing in on the case, which has yet to be set for argument in the High Court.

The case could shed light on a long-debated question of whether Michigan’s anti-discrimination law – the Elliott-Larsen Civil Rights Act – prohibits discrimination based on gender identity.

The case at issue stems from a 2019 Michigan Department of Civil Rights investigation into two companies that refused services on the basis of sexual orientation and gender identity.

Sturgis-based Rouch World refused to host and participate in a same-sex marriage ceremony due to religious reservations, and Marquette-based Uprooted Electrolysis refused to serve a person changing from male to female, again because it was in conflict with religious beliefs.

People who were denied service filed complaints with the state, which opened an investigation in 2019 and demanded questioning and the production of documents in 2020. The investigation stemmed from a 2018 interpretation of the law Elliott-Larsen on Michigan Civil Rights by the Michigan Civil Rights Commission that the anti-discrimination law included a ban on unequal treatment on the basis of both gender identity and sexual orientation.

Lawyer David Kallman, representing Rouch and Uprooted, challenged the state’s investigation in the Claims Court, where he argued the commission was conducting the investigation based on an allegation not protected by law on Elliott-Larsen Civil Rights.

Kallman asked Court of Claims Judge Christopher Murray to overturn the commission’s interpretation, preventing him from investigating discrimination based on sexual orientation or gender identity.

Murray ruled in December 2020 that he would follow federal court precedents to determine gender identity fell within the definition of “sex,” but he said a 1993 Michigan Court of Appeals opinion l ‘precluded inclusion of sexual orientation in this decision.

The parties argued that the 1993 ruling Murray referred to should be overturned by the Michigan Supreme Court because of the precedent set by a 2020 United States Supreme Court ruling that discrimination based on sexual orientation or gender identity amounted to discrimination on the basis of sex.

Nessel appealed Murray’s 2020 decision to the Michigan Court of Appeals and Supreme Court, and the High Court agreed this summer to hear the case.

If the Supreme Court ultimately decides that Elliott-Larsen protects individuals from discrimination based on sexual orientation, Kallman said he would challenge the law as an unconstitutional violation of religious freedom and the free exercise of the rights of its people. clients. The promised challenge is likely to delay any sort of finality on the issue.

Documents filed this week largely argued for overturning the 1993 Court of Appeals ruling preventing Michigan judges from including sexual orientation as a protected class.

The eight prosecutors who filed the lawsuit – from Oakland, Wayne, Washtenaw, Kalamazoo, Algiers, Marquette, Genesee and Ingham counties – argued that sexual orientation should be protected under state law. discrimination because LGBTQ people “are four times more likely to be victims of violent crime than the general population”, in part because of discrimination based on sexual orientation. Kym Worthy is Wayne’s district attorney, while Karen McDonald is Oakland’s district attorney.

“A clear and unequivocal decision by this court that Elliott-Larsen prohibits discrimination based on sexual orientation will help redress the historic mistrust that LGBTQ communities have in the criminal justice system,” prosecutors wrote. “This will facilitate the

reporting of crimes. And, in the final analysis, it will keep our communities safe. “

Whitmer, who appoints members of the Michigan Civil Rights Commission, supported the commission’s interpretation of the Michigan Discrimination Act and asked the court to dismiss the 1993 Court of Appeals opinion “as a relic of a time when discrimination based on sexual orientation, gender identity and transgender status was not only common, but also so acceptable that the courts tolerated it even if it violated the plain language of anti-discrimination law. “

Michigan Realtors – which has about 35,000 members in Michigan – said the group’s code of ethics has prohibited discrimination based on sexual orientation since 2011. The group has asked the Michigan Supreme Court to interpret the law. the state as doing the same by setting aside the 1993 Court of Appeal. decision.

The Michigan ACLU, along with 20 other legal, advocacy or social service groups, also argued to end the 1993 ruling.

“The time has come for this court to remove this obstacle and declare that discrimination based on sexual orientation is prohibited sex discrimination under Michigan law,” the record said.

The Michigan Catholic Conference opposed the overturning of the 1993 case, noting that dozens of lawmakers and judges debated the issue but ultimately decided not to expand Michigan’s definition of “sex.” to include sexual orientation.

For the Michigan Supreme Court to rule otherwise now would be contrary to the doctrine of the separation of state powers and circumvent the legislature, the “constitutional way to amend a law.”

“The department’s new interpretation of ELCRA … puts religious practice at risk,” the conference said. “And these risks were never taken into account in the shortened method of simply redefining the language of ELCRA far beyond its ordinary meaning, through a simple interpretative statement.

“The department’s request to judicially ‘update’ the law should not be allowed,” the conference said.

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