January 15, 2021
LANSING – Michigan Attorney General Dana Nessel, on behalf of the Michigan Department of Civil Rights (MDCR), has filed appeals with the Michigan Court of Appeals and the Michigan Supreme Court following last month’s ruling by the Michigan Court of Claims, holding that the Elliott-Larsen Civil Rights Act (ELCRA) provides protection for “gender identity” discrimination but not for sexual orientation discrimination. Nessel also filed a bypass application for leave before the Michigan Supreme Court.
Plaintiffs in the lawsuit – Rouch World LLC et al v Michigan Department of Civil Rights et al – are businesses that, based on religious grounds, denied services to customers who were either a same-sex couple or an individual who was transitioning their gender identity.
In 2018, the Michigan Civil Rights Commission (MCRC) adopted an interpretive statement that “sex” as defined by ELCRA included protections for individuals on the basis of sexual orientation and gender identity. This determination by the MCRC allowed the MDCR to begin processing complaints of discrimination based on sexual orientation and gender identity.
Complaints about the plaintiff businesses were filed in 2019 with the MDCR, which began its investigation. In early 2020, plaintiffs filed suit, asking the Court to rule that MDCR has no jurisdiction to investigate complaints based on sexual orientation or gender identity and that the MCRC had no authority to issue the 2018 interpretive statement that sexual orientation and gender Identity were covered under ELCRA.
Court of Claims Judge Christopher Murray, in his opinion issued on Dec. 7, 2020, sided with the MCRC’s interpretive statement that ELCRA provides protections for gender identity. But on the issue of sexual orientation, he concluded that he was bound by the 1993 Court of Appeals ruling in Barbour v Department of Social Services, which held that sexual orientation falls within the meaning of sex under ELCRA. The 28-year-old Barbour decision, however, relied on federal precedent that is no longer valid in light of the U.S. Supreme Court decision issued just six months ago in June 2020—Bostock v Clayton Co. In Bostock, the U.S. Supreme Court held that discrimination on the basis of sexual orientation is a form of sex discrimination.
“The highest judicial body in our country – the U.S. Supreme Court – ruled that discrimination on the basis of sexual orientation is a form of sex discrimination, and that is case law we must not overlook in this current matter,” Nessel said. “I respectfully disagree with the Michigan Court of Claims’ recent decision, and the appeal my office filed today on behalf of the Michigan Department of Civil Rights is a sound argument for equal protection under the law for all Michigan residents – regardless of their gender identity or sexual orientation.”
“We are pleased to partner with the Attorney General in this effort,” said Stacie Clayton, chair of the Michigan Civil Rights Commission. “We are confident that the court will decide – just as the Civil Rights Commission and U.S. Supreme Court did – that under ELCRA, discrimination on the basis of sexual orientation is prohibited in the state of Michigan.”
Under the Michigan Court Rules, the Court of Claims and the Court of Appeals are bound by prior published decisions of the Court of Appeals issued on or after Nov. 1, 1990, such as Barbour. But the court rules do allow the Court of Appeals to convene a conflict panel where a panel of the Court would have decided an issue differently but for prior precedent.
An interlocutory application for leave to appeal the Dec. 7, 2020 opinion was filed on behalf of the MDCR in the Court of Appeals on Dec. 28, 2020. That application is currently pending. If the Court of Appeals grants the application and if the assigned panel of judges disagrees with Barbour, a conflict panel could choose to resolve this issue. But that mechanism is discretionary and, regardless of the outcome, it is highly likely that the losing party would immediately file an application for leave in the Michigan Supreme Court.
Given the uncertainty of Court of Appeals’ resolution and the fact that this issue is of highest public importance and affects the daily lives of many Michigan residents, Attorney General Nessel, on behalf of the MDCR, has also filed a bypass application in the Michigan Supreme Court, seeking a prompt resolution of this matter. Because the case involves a jurisprudentially significant issue of substantial legal and public import, it warrants immediate review by the Michigan Supreme Court.
Click here to view a copy of the bypass application for leave to appeal to the Michigan Supreme Court and here for related exhibits.