A landmark U.S. Supreme Court ruling on June 15 bars workplace discrimination based on sexual orientation and gender identity, and also highlights additional work that needs to be done in Michigan.
Advocates in the LGBTQ and business community say that work includes expanding the state’s civil rights law to prevent discrimination in housing, health care and public accommodations, but also settling what’s been a major debate over religious exemptions in such cases.
Democratic lawmakers in recent years have tried and failed at legislative expansions of the Elliott-Larsen Civil Rights Act of 1976. The Republican-controlled House and Senate have declined to advance legislation despite broad support from the public and businesses.
Following the Supreme Court’s latest ruling, which some advocates say is arguably as significant as its ruling on marriage equality, organizers behind a ballot initiative to amend Elliott-Larsen were analyzing their next steps. The Michigan Court of Claims earlier this month granted the campaign more than two additional months to gather signatures in the hopes of making the 2022 ballot.
Despite looming questions over LGBTQ equality in Michigan, the June 15 ruling came at a trying time for the country.
“Given everything that’s going on, I think our community as a whole needed a win at this time,” said Thomas Pierce, executive director of the Grand Rapids Pride Center. “A lot of people have been feeling really down and a lot of pressure from different aspects of life — health, jobs, finances and the political climate. This gave people a little light when I think they needed it the most.”
Jay Kaplan, staff attorney for the American Civil Liberties Union’s LGBT Project, said it’s difficult to understate the significance of the Supreme Court’s ruling given its conservative makeup.
“It might not be as sexy as marriage equality, but it’s probably one of the most significant Supreme Court decisions on behalf of LGBT rights,” Kaplan said.
The case also had Michigan origins. Aimee Stephens, a transgender woman from Southeast Michigan, sued her employer after she was fired in 2013 during her transition. Stephens’ case was combined with two others in Georgia and New York, and was decided on a 6-3 ruling that found sexual discrimination and gender identity falls under the definition of sex in the Civil Rights Act of 1964. In the majority’s opinion, Justice Neil Gorsuch — appointed by President Trump — wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Stephens passed away last month after complications from kidney failure. Kaplan said he and Stephens spoke about the case “many times.”
“She played an incredible role in telling her story to the world, sharing her private life story as a way to illustrate the harm done to transgender people and to help others,” Kaplan said. “Her one wish was that she lived long enough to read the opinion. She’d be so pleased, happy and gratified at what this means particularly for the transgender community.”
A year ago, Gov. Gretchen Whitmer joined Democratic lawmakers in supporting legislation to expand Elliott-Larsen to include protections for the LGBTQ community. At the time, the Republican leaders of the state House and Senate said they wouldn’t advance the bill unless it included religious exemptions, basically allowing entities to refuse service to others if it conflicts with their religious beliefs.
Kaplan said the defense has been used over the past decade and is similar to those cited to support segregation in the 1960s based on religious beliefs. Kaplan said the Michigan and U.S. constitutions clearly protect religious beliefs when it deals with exercising their own faith. Citing recent examples, Kaplan said baking cookies or planning weddings aren’t religious practices.
To include these types of activities, Kaplan said, amounts to “using religion to discriminate.”
“It was never the intent of the constitution to use religion as a sword to harm other people,” Kaplan said. Referring to the religious arguments made in defense of segregation, he added: “The courts didn’t buy that then, and they shouldn’t buy that now.”
State Rep. David LaGrand, D-Grand Rapids, called the religious exemption issue a “legitimate topic of discussion, but it’s also true that we constrain people’s asserted expression of religion in many contexts.”
LaGrand is an ordained minister in the “theologically conservative” Christian Reformed Church, “which means I take religious exemptions and concerns very seriously.”
“My first instinct is: Show me an organized religious group that has officially taken a position that you shouldn’t rent a house to a homosexual. I’m not aware of one,” he said. “I’m also not aware of any religious institution that says you shouldn’t provide baked goods based on sexual orientation. I don’t believe freedom of religion means I assert it to do whatever I want.”
In a statement after the Supreme Court ruling, Attorney General Dana Nessel called the ruling a “major victory for civil rights,” but added, “this is not the end of the story. It is just the beginning of the progress yet to be made on the important issue of equal protection. The Supreme Court’s decision, although groundbreaking, is relatively narrow.”
Pierce at the Pride Center agrees: “We are still seeing a lot of barriers and discriminatory practices in the way of housing.”
“This was a win, I think we use this and keep pushing forward,” he said. “When big things happen like this, we take that and settle a bit, but now is not really the time to do that. November 2020 is going to be a very big year in our country, especially for the LGBTQ+ community.”
Although expanding Elliott-Larsen has stalled for years in Michigan, support has been growing among the state’s business community. A coalition that included DTE Energy, Consumers Energy and Dow Chemical Co. was an early backer of the Fair and Equal Michigan campaign, which is collecting signatures to put the question of expanding the state’s civil rights law before voters.
Business advocates say in addition to equality, the issue is about making Michigan competitive.
“We want it to be addressed federally but also here because we want Michigan to have the most talented and highly diverse workforce in the country,” said Andy Johnston, vice president of government and corporate affairs with the Grand Rapids Area Chamber of Commerce. “Over the past decade and a half, there’s just been a continual growing chorus that this isn’t just the smart thing to do, it’s the right thing to do for the whole state.”
While more than 30 municipalities have non-discrimination ordinances that include LGBTQ protections locally, LaGrand said: “That’s great, but it would be nice if the state got its act together.”