Schuette: Michigan law doesn't protect LGBTQ people from discrimination

Paul Egan | Detroit Free Press

LANSING — The state's civil rights law does not protect gay and transgender people from discrimination, Attorney General Bill Schuette said in a formal opinion issued Friday.

Though legal views differ on the force of attorney general opinions, they are generally considered binding on state agencies and officers in Michigan, unless overruled by a court.

Schuette's opinion drew swift and sharp criticism from advocates for LGBTQ rights.

"This means LGBTQ Michiganders still can be fired from their job and denied housing and public services," said Lonnie Scott, executive director of the liberal group Progress Michigan.

Schuette, one of four Republican candidates for governor in the Aug. 7 primary, "is siding with discrimination and bigotry," Scott said.

Schuette was asked to issue the opinion after the Michigan Civil Rights Commission voted in May to expand the commission's interpretation of the state's Elliott-Larsen Civil Rights Act to include protections from discrimination based on sexual orientation and gender identification in employment, education, housing and real estate as well as use of public accommodations and public service.

Schuette's opinion, addressed to Republican leaders in the state House and Senate who requested it, said the commission went too far and "the Commission’s interpretation conflicts with the Act’s plain language."

The law bans discrimination based on sex, including discrimination based on pregnancy, and also bans sexual harassment. But it doesn't specifically mention sexual orientation or sexual identity.

"Michigan’s Constitution entrusts the Legislature, and not executive agencies or commissions, with the authority to change, extend, or narrow statutes," Schuette wrote.

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State law "prohibits discrimination based on sex but does not cover distinctions based on sexual orientation or gender identity," Schuette said. The commission's ruling "is invalid."

Though recent federal court rulings have interpreted "sex" to include sexual orientation, "these newer federal decisions ... do not follow Michigan’s principles of statutory interpretation," he said.

Groups such as Equality Michigan had expressed strong support for the commission's decision to start taking complaints of discrimination based on sexual orientation or gender identity for the first time.

Stephanie White, executive director of Equality Michigan, called on the state Civil Rights Commission to defend its interpretation in the face of Schuette's opinion.

"While the attorney general continues to polish his anti-LGBT credentials in a contested gubernatorial race, today's overreach cuts at the commission's core constitutional authority, which should concern everyone," White said in a news release.

White said the attorney general can't interfere with the commission's constitutional authority. The commission, which since May has taken in about eight complaints of discrimination on the grounds of sexual orientation and gender identity but has yet to hold hearings on those complaints, should continue with those cases, she said.

The commission is expected to discuss Schuette's opinion when it meets in Traverse City on Monday.

The commission's director, Agustin Arbulu, reacted cautiously in a brief statement issued Friday.

“The Department has just received the Attorney General’s opinion on the interpretive statement and is in the process of reviewing it," he said.

For now, "we will continue taking and processing complaints, but we will not begin investigating those complaints until after the Commission provides us with direction."

Sen. Rick Jones, R-Grand Ledge, chairman of the Senate Judiciary Committee, said Schuette did his job.

"It's the AG's job to interpret the law," Jones said. "It's not his job to create the law, and it's also not the Civil Rights Commission's job to create the law.

"The law is created either by the Legislature or by the ballot initiative," Jones said. "Instead of trying to rewrite the law through the Civil Rights Commission, these groups should put it on the ballot."

Dana Nessel, the expected Democratic nominee for attorney general in the November election, said she isn't surprised by Schuette's opinion, which she said flies in the face of several court rulings around the country.

The best next step, she said, is to elect state lawmakers who support civil rights for LGBTQ people.

"It's time that we had state actors that cared more about protecting this community than persecuting them," she said.

Past attempts in the Legislature to amend the 1976 Elliott-Larsen Civil Rights Act have failed because of opposition mostly from Republican lawmakers and attempts to tie any such change to a religious freedom law that would, for example, allow a baker to refuse to make a wedding cake for a gay couple on religious grounds.

Republican Gov. Rick Snyder has said he won't sign such religious freedom legislation without amending the civil rights law to ban discrimination based on sexual orientation.

In 2014, then House Speaker Jase Bolger, R-Marshall, said a religious freedom bill must pass for him to lend his support to a law banning discrimination based on sexual orientation.

"Together they would achieve the necessary appropriate balance in Michigan," Bolger said at the time.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.