Michigan law doesn’t prohibit LGBT bias, Schuette rules

Jonathan Oosting | The Detroit News

Lansing — In a legal opinion sure to reverberate through his campaign for governor, Republican Attorney General Bill Schuette on Friday deemed “invalid” a new agency interpretation that had extended anti-discrimination protections to gay and transgender Michigan residents.

The formal opinion was derided by a Democratic state lawmaker as an attempt to "trample" on the gay community but praised by a conservative attorney who had considered legal action on behalf of GOP legislators.

Schuette said the Michigan Civil Rights Commission overstepped its authority in May when it determined that an existing ban on “sex” discrimination also prohibits bias on the basis of sexual orientation or gender identity.

The interpretation had been hailed as a major victory for gay rights and prompted the Michigan Department of Civil Rights to begin investigating suspected discrimination.

But the panel's interpretation is “invalid because it conflicts with the original intent of the Legislature as expressed in the plain language" of the Elliott-Larsen Civil Rights Act of 1976, Schuette said.

State agencies can interpret laws, but the interpretation “cannot be used to change the statute or to enforce the statute in a way that conflicts with the law’s plain meaning,” he wrote in the 19-page opinion.

While a Schuette spokeswoman said the opinion is "binding on state government," some gay rights advocates disagreed. Civil Rights Director Augstin Arbulu said his department will "continue taking and processing complaints, but we will not begin investigating those complaints until after the commission provides us with direction."

The Civil Rights Commission was already set to meet Monday.

If investigations end, "then once again LGBT Michiganders are going to be the only people in our state who don't have access to civil rights laws," said Stephanie White, executive director of Equality Michigan. "And that, of course, will be a tragedy."

The advocacy group disagreed with the opinion "and so do the top legal minds in the state who had looked at this," White said. She accused Schuette "of using his office for partisan, personal gain, which has been the attorney general's habit since he took office."

Schuette is one of four Republicans competing in the Aug. 7 gubernatorial primary. Democratic rival Gretchen Whitmer calls his opinion "disgusting."

But David Kallman, an attorney with the conservative Great Lakes Justice Center, praised Schuette for an opinion he said "upheld the rule of law and upheld the separation of powers between executive and legislative branches.

"I understand people are upset and up in arms over this issue, but that's not what's driving the opinion," Kallman said. "It's a good government, constitutional issue."

The Michigan Civil Rights Commission adopted the interpretive statement May 21, holding that an existing prohibition on sex discrimination should also apply to sexual orientation and gender identity. Equality Michigan had requested it.

Schuette weighed in at the request of Republican state Senate Majority Leader Arlan Meekhof of West Olive and House Speaker Tom Leonard of DeWitt. They asked Schuette for his legal opinion on May 29, calling the Civil Rights Commission's vote an attempt to “usurp the Legislature’s authority by attempting to amend state law under the guise of an interpretive statement.”

The attorney general agreed, noting the Legislature has repeatedly failed to act on bills to expand the civil rights law to include protections for gay and transgender residents.

Federal court rulings that expanded the meaning of the word "sex" are "not consistent with Michigan’s principles of statutory interpretation," Schuette wrote. "In Michigan, the mechanism for evolution in statutory law is through legislation."

State Rep. Jeremy Moss, D-Southfield, called the opinion an attempt to "drag our state into the darkness of the past."

“While Bill Schuette attempts to trample on the LGBTQ community in an effort to appeal to an extreme fringe in an election year, I’m confident that progress will continue to march forward without him," Moss said in a statement. "... It’s not a matter of ‘if’ we expand the Elliott-Larsen Civil Rights Act, but ‘when.’ Bill Schuette will be remembered in this moment as an antagonist on the wrong side of history.”

Jay Kaplan, a staff attorney for the American Civil Liberties Union of Michigan's LGBT Project, said Schuette appeared to "cherry pick" cases to support his argument but ignore important federal decisions, including rulings from the 6th Circuit U.S. Court of Appeals, which covers Michigan.

"He wanted to reach the conclusion he reached," Kaplan said, arguing Schuette also "mischaracterized" statutes and administrative rules giving the Civil Rights Commission the authority to render its interpretive statement.

Schuette spokeswoman Andrea Bitely said his opinion was based on a reading of the state Constitution.

"This is about an unelected commission making law when the Constitution expressly gives that ability only to the Legislature," she said.

Kaplan said it's "questionable" whether Schuette's opinion is binding on the Michigan Department of Civil Rights. Kallman disagreed, saying formal opinions are binding on state agencies but not individuals.

Any enforcement actions resulting from ongoing investigations into alleged sexual orientation or gender identity complaints will not hold up in court as a result of Schuette's opinion, Kallman argued.

"I would love to take that to court," he said. "That’s winner on our side."

joosting@detroitnews.com

(517) 371-3662