There were a couple of truly disturbing under the radar stories this week about Michigan Attorney General (and aspiring Gubernatorial candidate) Bill Schuette that I felt like more people should know about.

In both cases, Mr. Schuette is fighting against civil rights protections that could make a real difference to vulnerable or discriminated against populations.

LGBTQ Rights

I used to work, many years ago, at Arizona State University.

I remember being shocked to find out in the 90’s that my boss, who happened to be an openly gay man, could be fired in Arizona simply for being gay.

In other words, he could be fired ar will but if the University had decided to fire me, they would have had to demonstrate cause (the law also allowed the University and insurance carriers to refuse partner benefits to same-sex couples).

The very heart of equal protection law SHOULD insist that anything I am entitled to as a citizen of any state should be accessible equally by any other citizen of that state. It makes me so frustrated and angry when intolerant majorities try to trample the equal protection rights of vulnerable and discriminated against minorities.

Luckily, in LGBTQ civil rights, we have finally started to live up to our Constitutional promises of protection against the tyranny of the majority. We have seen same-sex marriage win the day at the SCOTUS and employment rights being granted in states all over the country which made this week’s story about Schuette’s response to questions about LGBTQ protections under Michigan’s civil rights statute worrisome, to say the least.

Michigan’s Elliot-Larsen Civil Rights Act contains the exact same language as is present in Federal and other State civil rights anti-discrimination laws, in particular prohibiting discrimination on the basis of:

“...religion, race, color, national origin, or sex”

Most courts and people have assumed, to date, that the term “sex” includes protections for LGBTQ person’s because it is impossible to discriminate based on sexual identity without it being, in some way, a reaction to a person’s sex.

But not Bill Schuette.

The Michigan Civil Rights Commission, who is authorized to come up with interpretations and decisions about how to enforce the Elliot-Larsen act, in September, after the Commission considered clarifying that the term “sex” in the act would create a cause of action LGBTQ people could use when discriminated against, Schuette said that he disagreed.

And beyond that, Schuette suggested (with no backing) that if the Commission:

“...adopted a contrary interpretation, they would violate the law and lose the special protections that prevent others from suing them and holding them personally liable. He repeated that admonition last week, when the commission again met to decide whether Elliott-Larsen protects LGBT rights.”

So, I guess it should come as no surprise that a candidate who has endorsed and been endorsed by the Trump campaign is coming out against protections for Michigan’s LGBTQ citizens, but it is still sad and should certainly be remembered on election day.

There is probably a reason that Vice President Pence just endorsed and contributed to Schuette’s campaign.

State Responsibility For Preventable Prison Rapes

I spent three years in a Michigan prison, and I have met and gotten to know people who were sexually assaulted in prison (I was lucky to have never been personally assaulted).

Michigan is one of those few remaining states where juveniles are sometimes tried as adults and housed with adult prisoners. In 2013 a class of these formerly juvenile prisoners, forced to be housed with adult prisoners, attempted to sue the State of Michigan under that same aforementioned Michigan Civil Rights statute for failing to protect them from being raped.

In many of these independently verified cases, the State was allegedly complicit and sometimes officers of the State of Michigan even participated in or set up the sexual assaults:

“The state suit claims teen offenders were sexually assaulted in Michigan prisons under a state policy that, until August 2013, allowed juveniles sentenced to adult terms to be placed in cells with older inmates. Prison officials, the suit contends, ignored or laughed off the inmates’ complaints, and even groped several of the teenagers themselves. The inmates’ lawyers accuse state prison officials of creating a culture of institutional indifference to the attacks. As evidence of that indifference, the lawyers note that the original seven inmates were attacked between 2010 and 2013, long after the state acknowledged in 2004 that juvenile offenders sentenced as adults were “five times more likely” to be sexually assaulted than adult prisoners.”

So what has Attorney General Schuette chosen to say?

What has been the State’s defense?

Mr. Schuette has chosen to suggest that the State cannot be complicit because prisoners in Michigan don’t possess actionable Civil Rights.

This response is particularly interesting because the Federal legislation governing Prison Rape (The Prison Rape Prevention Act or PREA) is largely toothless and relies on, you guessed it, the threat of State Civil Suits to deter circumvention of its mandates (pretty convenient, no?).

I don’t want to get too deeply into the legal weeds here, but Attorney General Schuette is choosing to interpret Michigan’s abovementioned Civil Rights statute to suggest that the State doesn’t count as “persons” under the statute so they cannot be sued (this is a bit like when state’s try to claim that they can’t be sued because they have sovereign immunity etc.) and that because prisons are not public places, state’s cannot be held responsible for violations of Civil Rights.

Unfortunately, if the Attorney General were to win this argument, it would have a few brutal and truly horrific outcomes:

1) All former prisoner’s who have been raped would be effectively denied any remedy and as a certain Attorney General mentioned in the case of Sexual Trafficking:

“Human trafficking, at its core, and in its many forms, exploits the most vulnerable members of our society. Victims are compelled into domestic servitude, commercial sex, debt bondage, and other modes of labor for little or no pay. Similarities across reported cases have included fraud, abduction, coercion, deception, long work hours, threats and use of force, and emotional abuse. Each of these elements represents the antithesis of fundamental dignity and basic human rights.”

I have a hard time distinguishing this logic from the logic for protecting juveniles incarcerated with adults from prison rape? I am pretty sure the abuse, in prison, of particularly vulnerable (but really any) inmates represents the antithesis of fundamental dignity and basic human rights too. Why shouldn’t they have a remedy against abuses at the hands of the State of Michigan?

2) All current and former prisoners would have ZERO expectation of the State of Michigan has an obligation to protect them from prison rapes.

Yes, they would still be able to attempt criminal charges against their assailant (from within prison and at risk of retaliation from other prisoners) or attempt to bring criminal charges against a participating correctional officer (from within prison and at risk of retaliation from other prisoners and correctional officers). But they would have no expectation that the State had an obligation to prevent or protect them from even predictable sexual assaults.

3) A victory would create a clear moral hazard rewarding the State for its opacity. As Pulitzer Prize-winning historian Heather Anne Thompson said in a recent interview about transparency and prisons:

But throughout American history, we've really hidden, at least, the institution of prisons, while we have made very public supposedly the archetypal prisoner. So we've seen the prisoner on a chain gang, or we've seen the prisoner working beside the road, picking up trash, often marked by a certain uniform or a certain way in which we know that they must have done something wrong, but we have absolutely no sense of, what are these institutions they return to? And we really never have. And so there have been various legal fights to try to get the public aware of what's happening inside, primarily because what's happening is brutal, and, indeed, the public needs to know that, because that's what they're paying for, right? It's not just a confining of somebody, but often an abuse of someone, a torture of someone .

It sends a terrible signal to the State of Michigan, or really any organization whose agents often have enormous power over individuals, to suggest that what is out of sight is beyond all hope of remedy.

4) The deck is already massively stacked in favor of the State when it comes to prisoner rights. Prisoner’s often have to rely on public defenders, jailhouse lawyers, or when lucky a few might get the assistance of the ACLU. Civil cases are one of the only avenues where prisoners have the potential to gain access to accomplished lawyers. By foreclosing the ability of prisoners to challenge the State on Civil Rights grounds, you also remove one of the few remaining quality options prisoners have to really be defended vigorously in Court.

Ultimately, all of this is about deciding if we care more about living under a system where both the government and citizens are both constrained by the rule of law or a system where the Bill of Rights becomes a hollow shell which no longer protects citizens from the government too.

Part of the process of learning that happened in learning from my own crime was embracing the idea that we have, or that we should have, an affirmative duty to protect and care about each other. That what connects us all is the idea that we agree to be governed because we have fundamental rights that cannot be taken from us by the government (or by anyone else).

I don’t get the feeling that our Attorney General (and possible future Governor) shares these convictions except when it is politically popular for him to do so (otherwise, why would he insist on protections for vulnerable kids outside of prison but insist at the same time that vulnerable kids inside of prison should have no expectation of protection?).

Regardless, when you are asking what this candidate stands for, he seems to stand for discrimination against LGBTQ Michiganders and for a notion of State sovereign power not even limited by participation in horrifying crimes against some of our most vulnerable citizens.