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Residents and lawmakers have introduced bills and ballot initiatives to ensure LGBTQ Michiganders full protection from discrimination. Yet all have fallen short.
The Elliott-Larsen Civil Rights Act of 1976 considers race, religion, color, sex, national origin, age, height, weight, familial or marital status as protected classes from discrimination. Concurrently, those are protected classes in the state's ethnic intimidation laws. The act does not ban discrimination based on sexual orientation.
But a state Supreme Court case could change that.
Michigan's Supreme Court is weighing arguments on whether two businesses — a Sturgis event hall and an Upper Peninsula electrolysis shop — violated state discrimination laws when they, respectively, refused to host a gay marriage and to provide hair removal service to a woman who sought the treatment as part of her transition.
Rouch World Event Center said gay marriage is against the owner's religious beliefs; the Michigan Department of Civil Rights argued denying the wedding violated state nondiscrimination laws.
Those siding with Rouch argue there's no legal basis for the court to determine the law bans discrimination against gay marriage, and any ruling otherwise would amount to judicial activism usurping the authority of the Legislature.
Justices held oral arguments on March 2 in the case that could decide whether the Elliott-Larsen Civil Rights Act bans discrimination based on sexual orientation.
Stacy Sellek, public information manager at the Michigan Supreme Court Clerks Office, said the court has until the end of the 2021-22 court session on July 31 to issue an opinion.
Lawsuit at the Focus: Rouch World Event Center focus of Michigan Supreme Court gay rights appeal
While many Michigan residents are hopeful the court will uphold MDCR's decision, a higher court can always change the ruling as the nation saw on June 24 in the Dobbs v. Jackson Women's Health Organization. It overturned Roe v. Wade and left abortion rights to states.
In his concurrent opinion, Supreme Court Justice Clarence Thomas indicated interest in revisiting laws around contraception, marriage equality and sex by same sex couples.
"That to me is an indication of what we've always known: The battle for civil rights for everyone is about control and ownership of bodies for personal lives," Emily Dievendorf, who's nonbinary, said of the Dobbs decision. "Controlling our abilities to love each other, express ourselves, hold jobs to have access to support our families, is our basic rights as humans."
Dievendorf is running in the Democratic primary for the 77th State House district. Jon Horford and Logan Byrne are also running for that primary.
But supporters of the businesses that denied service argue the court has to rule against MDCR because Michigan's law is vague. The Michigan Catholic Conference and others have said the state must protect religious freedom while recognizing lawmakers have had the chance to add sexual orientation as a protected class in state law.
Gov. Gretchen Whitmer cannot add protections via executive order, so how can LGBTQ people in Michigan gain rights?
How have legislative action, ballot questions fared?
A number of lawmakers have attempted to add LGBTQ rights via ballot initiatives, but have failed.
Fair Michigan considered a ballot proposal in 2016, but then paused its effort after there was disagreement in how to secure equality.
In 2021, Fair and Equal Michigan failed to reach the required number of signatures to put the issue to voters.
"It's a tough pill to swallow to know that I'm fourth constitutional officer in the state, I'm the top law enforcement official in the state, and I can walk into a coffee shop and still have somebody refuse to serve me," said Nessel, who was involved in the 2016 effort before being elected attorney general in 2018. "Or I can go into a doctor's office and have somebody refuse to treat one of my kids."
Nessel said there's a probability someone could bring a case to challenge opinions in alignment with Justice Thomas' interests and overturn other civil rights issues.
Michigan Senate tries takes up @JeremyAllenMoss resolution recognizing June as Pride month.
Sen. @SenAricNesbitt tries to refer the resolution to Gov Ops committee (where measures go to languish). Democrats object, note that the Senate passed the resolution last year.
— Dave Boucher (@Dave_Boucher1) June 14, 2022
State Sen. Jeremy Moss, D-Southfield, and, Rep. Laurie Pohutsky, D-Livonia, introduced bills in their respective chambers to amend Elliott-Larsen Act. Moss' bill was referred to the Government Operations Committee, while the House referred Pohutsky's to the Judiciary Committee.
Moss also tried to pass a routine Senate resolution recognizing June as Pride month. His Republican colleagues pushed back against the measure, which was referred to the Senate Committee on Government Operations on June 14.
Pohutsky said her bill has bipartisan support and has gained momentum over time, but House leadership has not moved it out of committee.
"There are ramifications to the LGBTQ not being called a protected class," she said. "MDCR has an administrative rule to protect the community and since it's not statue, it can be changed with administrations."
Such legislation would allow Lansing police to investigate a recent burning of a Pride flag on Lansing's east side as ethnic intimidation. Public Information Director Jordan Gulkis said Wednesday police are still looking for a suspect, but would not discuss what charges police may be pursuing.
The state's Ethnic Intimidation Act doesn't include acts committed against those in the LGBTQ community.
Awaiting a ruling
Nessel joined the Rouch World v. Michigan Department of Civil Rights state Supreme Court lawsuit, defending MDCR. She declined to speak directly about the case, but said continual inactions to codify LGBTQ rights and protections in the state civil rights act drives people away from Michigan.
She's awaiting the Rouch World decision as she said it could be the best option to getting the civil rights act amended. She's not optimistic any of the bills will advance until there's a sweeping Democratic leadership in both chambers of the legislature and the governor's office.
"Otherwise,... we'll continue to hear the Republicans talk about LGBTQ people as groomers, as people who are dangerous, as people who are pedophiles and all that other nonsense that is so harmful to the community," Nessel said. "I feel like we've regressed 40 years in just the last six months."
That rhetoric is dangerous, she added.
"But we have to change the laws so that they are they specifically include these various classes," Nessel said. "Otherwise you're always one court decision away from everything being thrown out, and having to start all over again in no protection at all."
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Detroit Free Press reporter Dave Boucher contributed.
This article originally appeared on Lansing State Journal: Michigan's highest court will soon rule on LGBTQ civil rights protections