The Michigan Supeme Court ruled that the state’s civil rights law extends to sexual orientation. (Shutterstock)
  • The Supreme Court decision is hailed as a victory by LGBTQ advocates and some business leaders.
  • The majority ruled against a company that declined to host a wedding for a same-sex couple
  • Dissenting justices fear the ruling could impinge on religious liberties

LANSING – Michigan businesses cannot fire employees or discriminate against customers because of their sexual orientation, the state Supreme Court ruled Thursday in a closely watched case that will greatly expand civil rights protections. 

In a 5-2 ruling, the Michigan Supreme Court held that discrimination based on sexual orientation is already prohibited under the state’s Elliott-Larsen Civil Rights Act, which expressly bars discrmination on the basis of “sex” in workplaces, housing and places of public accomodation.

“Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex,” Justice Beth Clement, a Republican nominee, wrote in the majority opinion. She was joined by four Democratic nominees. 

The decision reinforces a prior ruling prohibiting gender identity discrimination and gives gay and transgender Michiganders clear authority to file civil rights complaints or sue business owners that fire them or deny service over religious or personal objections.

The ruling “makes Michigan a state with one of the strongest, most expansive civil rights laws in the country,” said Jay Kaplan, LGBTQ project staff attorney for the American Civil Liberties Union. 

While Michigan’s 1976 civil rights law does not mention sexual orientation, and the state’s Republican-led Legislature has resisted calls to expand it, the original language has been applied to several other circumstances “likely unanticipated by the enacting Legislature,” including pregnancy discrimination and sex-stereotyping cases, Clement wrote. 

“Should the Legislature disapprove of an application of a statute’s enacted language, the Legislature remains free to amend the statute,” she continued. “This Court, however, is bound by the language that the Legislature has enacted.”

Spokespersons for GOP legislative leaders did not immediately respond to requests for comment. 

The Michigan Civil Rights Commission came to a similar conclusion as the state Supreme Court in 2018 when it authorized the Department of Civil Rights to begin investigation complaints of discrimination against gay or transgender residents based on sexual orientation or gender identity. 

But two Michigan companies accused of discrimination sued, citing “sincerely held religious beliefs” while arguing the commission had usurped legislative authority to reinterpreting existing law to protect gay and transgender residents.

The litigation began in 2019 as the state investigated Rouch World LLC, an event center in Sturgis whose owners refused to host a same-sex wedding ceremony, and UpRooted Electrolysis in Gwinn, whose operators refused to perform hair removal services for a transgender woman who was in the process of a physical transition.

The Michigan Court of Claims ruled against UpRooted, effectively extending protections to transgender residents, but Judge Christopher Murray dismissed the sexual orientation case, citing a prior state court ruling he was bound to follow. 

But with federal courts extending workplace protections, the Michigan Supreme Court agreed to take up the Rouch World case, bypassing the Court of Appeals.

In another rare move, Attorney General Dana Nessel, a Democrat, personally argued before the state’s highest court in March, urging justices to protect gay residents from discrimination.

In her majority opinion, Clement said that by denying to host Natalie Johnson and Megan Oswalt’s wedding, Rouch World effectively discriminated against them because of their sex. 

“Had Johnson instead been a male, Rouch World would not have denied its services,” Clement wrote. “In other words, but for Johnson’s sex, Rouch World would have rendered its services.”

The MIchigan ruling is the latest in a series of legal victories for gay and transgender people. In 2020, the U.S. Supreme Court similarly ruled that “sex” protections in a federal civil rights law prohibited workplace discrimination against gay and transgender individuals.

The new ruling applies to smaller Michigan companies not subject to federal workplace laws. And it will also extend protections to gay residetns in places of public accomoation and housing, which are also covered under the state’s civil rights law. 

Erin Knott, executive director of Equality Michigan, an LGBTQ political advocacy group, said the ruling is an “extraordinary win” for LGBTQ Michiganders and their allies.

“Freedom of religion does not equal freedom to discriminate against LGBTQ people here in Michigan,” Knott said, noting Equality of Michigan has been petitioning the state’s Civil Rights Commission to issue an interpretation of sexual orientation and gender expression that guarantees “our civil rights are protected through the category of sex” since 2018

Before the  ruling, Knott said discrimination based on sexual orientation was not explicity prohibited in Michigan’s civil rights law. That meant “businesses could deny services to LGBTQ patrons,” she said. “We could be denied housing. We could be fired from our jobs.”

““As of today, that’s no longer the case.”

Still, Knott said her group will continue to advocate for revised language in the Elliott-Larsen Civil Rights Act, because “courts change, and we need to make sure that we codify this in our state’s constitution,” she said. 

David Kallman, an attorney who represented Rouch World, could not immediately be reached for comment Thursday. In a March hearing, he argued that the state could not enact new rules not explicitly called for by the Legislature in 1976. 

He noted lawmakers have proposed at least 11 bills to extend anti-discrimnation protections to LGBT residents since 1999 but none had been approved by the full Legislature.  

In a dissent, Republican nominated Justice Brian Zahra said he took no issue with the new “policy” adopted by the majority but argued the court had no authority to create anti-discrimination protections that the Legislature had not.

“This Court’s duty is to say what the law is, not what it thinks the law ought to be,” Zahra wrote. “But this is exactly what a majority of this Court has done here.”

In a separate dissent, Justice David Viviano argued the majority failed to consider religious liberty protections, which are addressed under federal civil rights law but not the state version. “This departs from the normal principle that courts will first consider whether an interpretation raises grave constitutional doubts before adopting that interpretation,” Viviano wrote. 

A coalition of business groups had spent years urging the Michigan Legislature to expand civil rights protections in order to help them attract and retain talented workers. 

The new ruling is a “positive development” in that “ongoing battle,” Sandy Baruah, president and CEO of Detroit Regional Chamber, said in a statement. 

Michael Pitt, an employment lawyer in Royal Oak, deemed the Thursday decision a “victory” for Michigan residents and businesses.

“Diversity fosters great organizations,” Pitt told Bridge Michigan. “When employees of an organization feel that they are being treated fairly and equitably, it improves their productivity and their performance.”

And the ruling means Michigan law “has finally caught up with reality,” he said, noting the growth in the LGBTQ population nationwide.

“To have the laws conform with what is happening in society is a beautiful thing,” Pitt said.

There is already federal protection against discrimination based on sexual orientation, but that only applies to businesses with 15 or more employees, Pitt said. 

The ruling means LGBTQ employees can now directly sue employers for discrimination over sexual orientation in court without having to file a complaint with the state Department of Civil Rights, which is the procedure under federal law, Pitt said. And they can seek limitless compensation under the state law, he said, because federal law caps the compensation at $300,000.

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