Michigan Attorney General Bill Schuette’s attack on LGBTQ rights.

The Michigan Attorney General’s Sneak Attack on Civil Rights  

The Michigan Attorney General’s Sneak Attack on Civil Rights  

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Expanding the LGBTQ Conversation
Sept. 21 2017 11:52 AM

The Michigan Attorney General’s Sneak Attack on Civil Rights  

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Michigan Attorney General Bill Schuette

Joe Ross/Flickr

The ongoing battle for LGBTQ equality in Michigan suffered a significant setback this week. On Monday, after a months-long process, Michigan’s Civil Rights Commission finally seemed set to issue an “interpretive statement” as to whether Michigan law prohibits discrimination against LGBTQ people. Then, just moments before the commission was to vote, Attorney General Bill Schuette’s office derailed the proceedings—orally informing the commission that it lacked the authority to make such a statement.

The attorney general’s last-minute interference leaves Michigan among the states where someone can marry the person they love Saturday and be fired for whom they love on Monday. Yet almost as disturbing as what Schuette did was how he did it. With little legal justification, Schuette, a Republican, effectively barred Michigan’s Civil Rights Commission from speaking on the issue of LGBTQ equality. As a result, Michigan became the latest state in which government actors have been strong-armed as they stand on the cusp of exercising their authority to extend basic civil rights to LGBTQ persons.

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A bit of background. By law, Michigan’s Civil Rights Commission is responsible for enforcing Michigan’s Elliot-Larsen Civil Rights Act. That Act seeks to ensure equal treatment in housing, education, employment, and public accommodations. Unfortunately, Michigan’s Civil Rights Act does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. The results are sadly predictable. Hundreds of LGBTQ Michiganders have reported discrimination since 2000. A state-sponsored 2013 report concluded that LGBTQ Michiganders have been the victims of “widespread” discrimination in housing and employment. And all of this undermines the Civil Rights Act’s central purpose: protecting civil rights, and prohibiting discriminatory practices.

Yet Michigan’s Civil Rights Act at least arguably contains a salve for this self-inflicted wound. That is because, like federal anti-discrimination laws, Michigan’s Civil Rights Act prohibits discrimination on the basis of “sex.” And crucially, some federal courts—as well as the federal Equal Employment Opportunity Commission—have held that a prohibition on sex discrimination also prohibits discrimination on the basis of sexual orientation and gender identity. The rationale? Under federal law, one may not discriminate against someone for failing to conform to sex-based “stereotypes.” And, as one appeals court put it, it is the “ultimate” stereotype to discriminate against someone because they’re not attracted to the “right” kind of person for their sex, or because they don’t identify as the “right” gender.

Given that federal authority, the question naturally arose: Does Michigan’s parallel prohibition on sex discrimination also forbid discrimination against LGBTQ people? Notably, Michigan courts view federal anti-discrimination law as “highly persuasive” when determining the contours of state law. Yet neither Michigan’s judicial branch, nor its legislature, has clarified the precise scope of Michigan’s sex-discrimination prohibition. And that, in turn, leaves the state of the law in Michigan unresolved.

Accordingly, this summer, Equality Michigan asked Michigan’s Civil Rights Commission to resolve the ambiguity. Specifically, Equality Michigan urged the commission to issue an “interpretive statement” clarifying that Michigan’s prohibition on sex-based discrimination also prohibits discrimination based on sexual orientation and gender identity.

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To understand why what happened next is so troubling, a primer on “interpretive statements” is in order. It is a generally accepted principle of law that agencies, like the Civil Rights Commission, must sometimes resolve uncertainty in the laws they are charged with enforcing. That’s because lawmakers rarely, if ever, detail every possible scenario a law might cover. By way of example, consider a law that requires a monthly health department inspection for every restaurant “serving fish.” Does a restaurant that serves only lobster rolls “serve fish”? What about one that serves only crayfish? It’s debatable. Ultimately, though, somebody in the health department needs an answer, because they need to figure out where to send inspectors. And that requires the enforcing agency to make some kind of an interpretive decision.

This principle is why Michigan’s Civil Rights Commission—which is charged with enforcing Michigan’s civil rights laws—is empowered to issue “interpretive statements” to clarify uncertainty in those laws. And there can be little doubt that the reach of Michigan’s prohibition on sex discrimination is uncertain. As noted, several federal courts have held that a parallel prohibition on sex discrimination also prohibits discrimination on the basis of sexual orientation and gender identity. Other courts, however, have reached the opposite conclusion. In light of that conflicting federal authority, there was a clear need for the Civil Rights Commission to consider the request for an “interpretive statement”—and to provide guidance as to what Michigan’s civil rights law means.

That brings us back to Equality Michigan’s request for an interpretive statement. After receiving the request in late June, the Civil Rights Commission did everything right. It solicited, and received, extensive public comment about how Michigan law should be interpreted. It scheduled a public hearing, where it heard testimony from dozens of people. On Monday evening, it prepared to vote.

And then—just as the commission seemed on the cusp of vindicating hundreds of thousands of Michiganders’ rights—Schuette’s office stepped in. After promising, for months, that it would “recuse itself from the matter,” the attorney general’s office swiftly reversed course, orally informing the commission that it could not proceed. The commission, Schuette’s office claimed, lacked the legal authority to issue an interpretive statement at all, because “changes” to Michigan’s civil rights law can be made only by the legislature. “Should the Commission issue a ruling contrary to the Attorney General,” Schuette’s office warned, “the Commission would give up its governmental immunity and would be subject to a lawsuit.”

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Faced with a legal directive from Michigan’s top lawyer, the commission backed down. By a 6-2 vote, it tabled any action on the requested interpretive statement, once again delaying equal rights for LGBTQ Michiganders.

Not only was Schuette’s last-minute interference unjustifiable, his assertion that the commission lacked the authority to issue an interpretive statement bordered on legally incomprehensible. That is true for at least three reasons. First, Michigan law expressly, and repeatedly, references the commission’s authority to issue an interpretive statement, or “interpretive guidance.” Second, the commission has, in the past, issued interpretive statements to clarify uncertainty in the laws it is charged with enforcing—precisely what it was being asked to do here. Third, the commission was unambiguously being asked to interpret the scope of the law’s existing sex-discrimination provision. It was in no way being asked to “change” the law, as Schuette’s office suggested.

In some respects, Schuette’s intervention was unsurprising. After all, he’s the guy who spent $1.9 million in taxpayer money to argue against marriage equality at the U.S. Supreme Court. But it’s worth emphasizing that Schuette’s office did more than disagree with the commission’s interpretation of the law, or take a contrary position in subsequent litigation. Instead, the attorney general sought to muzzle the commission entirely—preventing the Civil Rights Commission from issuing guidance on Michigan’s most important civil rights law.

Sadly, this is a familiar state of play in battles over LGBTQ rights. Time and again, when one government actor seems ready to extend rights to LGBTQ citizens, another actor tries to curtail its power. That’s what happened in North Carolina, when—after the city of Charlotte passed an ordinance protecting its LGBTQ community—the state legislature barred municipalities from passing anti-discrimination laws at all. The same play was dialed up in Texas, largely in response to a Houston anti-discrimination ordinance. The message: Try to protect LGBTQ rights, and we’ll curtail your power to do so.

Of course, the North Carolina gambit backfired. And, after much outcry, the Texas bill is dead (at least for now). Most Americans, as it turns out, don’t like state-imposed discrimination. Here’s hoping Michiganders react similarly to their Civil Rights Commission being denied the opportunity to opine on civil rights.

Eli Savit is an attorney and an adjunct professor at the University of Michigan Law School.