Michigan Supreme Court: LGBT discrimination barred under existing law

• 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 discrimination 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. 

Experts say the decision reinforces prior rulings 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.”

Attorney General Dana Nessel, a Democrat, praised the ruling.

“Our residents deserve to live in a state that recognizes the value of diversity and rejects the notion that our own civil rights law could be used as a tool of discrimination," said in a statement. "This ruling is not only a victory for the LGBTQ+ community, but for all Michigan residents, and one that’s long overdue.” 

Senate Majority Leader Mike Shirkey, R-Clarklake, said "while concerned about some aspects of the ruling, I respect its decision.

"All people deserve to be treated with dignity and respect. This includes those with firmly held religious beliefs," Shirkey said in a statement, adding he hopes courts "will recognize our faith-based institutions and communities with the respect, dignity and rights they are clearly provided in our Constitution."

Four years ago, the Michigan Civil Rights Commission came to a similar conclusion as the Supreme Court 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 by 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.

Michigan Court of Claims Judge Christopher Murray dismissed the sexual orientation case, citing a prior state court ruling he said 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, Nessel, a Democrat, personally argued the case before the state’s highest court in March, urging justices to protect gay residents from discrimination.

In her majority opinion, Clement said that by declining 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 residents in the areas of public accommodation 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 explicitly 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 that lawmakers have proposed at least 11 bills to extend anti-discrimination 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 that 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 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, 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.

And they can seek limitless compensation under the state law, he said, noting that federal law caps the compensation at $300,000.