Monday, Oct 22, 2018
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Legal challenges ahead for civil rights expansion in Michigan


Does the Michigan Civil Rights Commission really have the legal right to expand civil rights in the state of Michigan?

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LANSING — Last month, the Michigan Civil Rights Commission made headlines when it voted to fight against discrimination on the basis of gender identity or sexual orientation.

That would seem to promise a huge widening of how civil rights are seen in Michigan. Today, while it is perfectly legal for John Jones to marry John Smith, it has also been seen as legal for his Michigan employer to fire him, just for being gay.

Now, that may change. Michigan’s Elliot-Larsen Civil Rights Act, passed in 1976, outlaws discrimination on the basis of “religion, race, color, national origin, age, sex, height, weight,” and family and marital status … but not sexual orientation and gender identity.

But did the commission really have the right to do this?

“Yes, we did. We’re being criticized for overstepping our bounds — well, we’re not overstepping our bounds,” said Alma Wheeler Smith, the commission’s lone Democrat. Ms. Smith was also the member who moved adoption of the new policy, which passed 5-0, with one Republican member abstaining and two absent.

However, how meaningful their action will be may depend heavily on who is elected state attorney general in November.

Michigan’s current attorney general, Bill Schuette, was strongly opposed to the commission’s action. Mr. Schuette, who had been a strong opponent of same-sex marriage, has taken the position that the state civil rights statute can only be changed by the legislature.

Indeed, various attempts over the years to amend Elliott-Larsen to include protections for other groups have all failed.

His office is extremely unlikely to do anything to help the Civil Rights Commission, if a case involving orientation or gender identity ends up in the courts before Mr. Schuette, who is running hard for governor, leaves office at the end of the year.

The two Republicans who are vying for their party’s nomination for attorney general, Speaker of the House Tom Leonard and State Senator Tonya Schuitmaker, are also likely to strongly oppose extending civil rights protections to gay and transgender citizens.

But Dana Nessel, the all-but-certain Democratic nominee, said she “absolutely” supports the action of the commission, and as attorney general would do anything she could to support it.

“As attorney general, your job is to protect as many of your state’s residents as possible,” she told me. “There are at least 500,000 people in Michigan who identify as LGBTQ — it could be as many as a million,” she added. “They deserve equal protection.”

“This is a step in the right direction,” said Ms. Nessel, the lead attorney in DeBoer vs. Snyder, the federal case that overturned the ban on same-sex adoptions in Michigan.

The case was later bundled with Obergefell vs. Hodges, the historic 2015 U.S. Supreme Court decision that found a national right to same-sex marriage.

But the Michigan Civil Rights Commission’s decision to extend these protections was bipartisan — and based in part on one recent significant federal court ruling. Five years ago, a funeral home in the Detroit suburb of Garden City fired funeral director Aimee Stephens because she was transitioning from male to female.

Under traditional interpretations of Elliot-Larsen, she would have had no legal recourse. But this March, the 6th U.S. Circuit Court of Appeals overturned a lower court ruling and said the funeral home violated Ms. Stephens’ civil rights when they fired her.

That decision was a key factor in the thinking of several of the commissioners, according to Augustin Arbulu, who is the executive director of the Michigan Civil Rights Commission.

Mr. Arbulu, himself a Republican, cautioned not to expect a flood of court cases in the immediate future. “We first have to do an investigation before anything can rise to the status of a formal complaint,” he said. “We have to do an evaluation, and inform both parties of an allegation, and give them time to respond.”

The entire process may easily take weeks, he said, and there is always an attempt to get both parties to reach a solution, he said, something he sees as preferable to fighting in court.

Nevertheless, he said if the commission has to go to court to ensure someone’s civil rights, it will. What nobody knows is how any individual judge or judges will react to the civil rights commission’s decision to expand the scope of what is enforceable.

That may be complicated further if, as expected, Mr. Schuette issues an order decreeing the decision illegal. That may be seen as having the force of law unless overturned by a court.

Ms. Nessel contends that in many cases, discrimination against those of different gender or sexual orientation is already covered under the traditional definition of Elliot-Larsen.

“If you have a person who signs their name John Doe, and one day they sign their name Mary Roe and are fired as a result — that is clearly sex discrimination in the workplace.”

How this will play out will undoubtedly include many twists and turns, and likely different interpretations by different courts.

In any event, the concept of civil rights has changed dramatically throughout the decades. Sixty years ago, it was legal to refuse to hire someone because they were black.

During World War II, a two-year-old child was badly burned in South Carolina, and died in her mother’s arms after an ambulance refused to take her because she was African-American.

Today, her twin sister lives in Michigan.

Her name is Alma Wheeler Smith.

Jack Lessenberry is a veteran Michigan journalist and The Blade’s part-time ombudsman.

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