by BTL staff
In 1966, Michigan’s gay community faced many challenges. Undercover police officers regularly baited and arrested men in prostitution stings at gay pickup areas. Raids on downtown Detroit gay bars were frequent and their owners felt harassed. The gay community was fearful. Yet there was one organization willing to fight: the American Civil Liberties Union of Michigan.
“Miranda rights weren’t being read to people,” said Rolland O’Hare, ACLU of Michigan’s first chairman from 1961 to 1966. “Once someone was arrested, there was no appointment of counsel. It made sense to stay in the closet.”
That same year, O’Hare was approached by a man denied a promotion at a local automotive assembly plant because fellow employees refused to work for a “queer.” O’Hare, a practicing labor attorney, recalls that the discrimination the gay community experienced in those days was not immediately obvious to the ACLU.
However, with all of these issues combined, O’Hare knew it was a concern that needed addressing. The ACLU of Michigan subsequently formed the country’s first “Committee on the Rights of the Homosexual” nearly two years before the Stonewall riots in New York City.
“We probably handled 40 to 50 cases that year alone,” said O’Hare. “Because gay plaintiffs now had lawyers, this ultimately led to many charges in the sting operations being dismissed.”
More than 30 years later, when Kary Moss was appointed executive director for the ACLU of Michigan in 1998, the hostile climate for the LGBT community was strikingly similar. No legal protections existed to prevent discrimination on the basis of sexual orientation. Many people still questioned what “basic rights” meant to the LGBT community when addressing matters typically covered through marriage such as hospitalization, health care and inheritance. Proposal 2, Michigan’s anti-gay marriage amendment, loomed on the horizon.
“The ACLU of Michigan found an incredible need for effective political advocacy in support of Michigan’s LGBT community,” said Moss. “We heard from our allies about actively helping to establish a legal arm to litigate cases involving civil rights violations. It was through these discussions our LGBT Project was formed.”
Among its first and most prominent cases, the LGBT Project sued on behalf of plaintiffs over a Detroit sting operation at Rouge Park beginning in the winter of 2001. Undercover officers approached men they perceived as gay and tried to elicit a look, gesture or conversation the police deemed to have sexual connotations. The officers arrested more than 1,000 people under the city’s “Annoying Persons” misdemeanor ordinance and impounded their vehicles.
“The Detroit Police Department collected more than 600 police reports about public sex in the park,” said Jay Kaplan, staff attorney for the ACLU’s LGBT Project. “After reviewing them, we found the majority of instances did not involve gay couples. Surprisingly, many had been arrested for something as minor as smiling or blowing a kiss. It was blatantly clear they were targeting gays.”
A settlement was later reached with the city in the amount of $170,000 for damages and attorneys’ fees. Additionally, plaintiffs’ arrest records and fingerprints were purged from the Police Department’s computer and records system. Officers also participated in LGBT sensitivity training.
Two years later, gay rights in Michigan came under attack with the introduction of Proposal 2 in 2004. One of the broadest marriage amendments in the country, its language that included “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose” took everything off the table. There would be no civil unions, no domestic partner benefits and no state recognition of LGBT families.
“We needed to find a way to keep Proposal 2 off the ballot,” said Moss. “Unfortunately, once it was there, there were very little resources to oppose it.”
Throughout the campaign, proponents of the amendment insisted the vote was about marriage and that it would have no impact on same-sex domestic partnership benefits. However, after the election, Gov. Jennifer Granholm said it was unclear whether such benefits were legal and that the state would not provide health insurance to same sex partners of employees.
The ACLU filed a lawsuit in March 2005 on behalf of 21 same-sex couples statewide seeking a declaration that Proposal 2 did not preclude employers from providing same-sex benefits. Later that year, an Ingham County judge agreed with the ACLU and ruled that same-sex benefits were work-related benefits unrelated to marriage.
In May 2008, the Michigan Supreme Court, over well-reasoned and strongly worded dissent, reversed the decision. The ACLU currently is working with universities and municipalities to help them revise their policies to ensure health benefits are continued without violating the Michigan Supreme Court’s interpretation of the Mmrriage amendment.
“We’ve been working to minimize the harm of this decision for years,” said Kaplan. “All Michigan families should be treated with dignity and should not have to be concerned about losing healthcare for their children.”
In keeping with the ACLU’s commitment to all families, the ACLU represented a non-biological mom in 2006 and defended her rights as a legal parent – rights that she obtained through second-parent adoption. It was the biological mom who petitioned the court to have those rights voided following a breakup in the relationship. She argued that the court had misapplied the adoption law.
The ACLU was successful in upholding the rights of the second parent after the Michigan Court of Appeals ruled her legal rights as a parent could not be attacked or voided years after the adoption judgment was entered.
The courts, however, are not the only avenue for LGBT equality. In the 2010 election, the LGBT community has an opportunity to have its collective voice heard. By electing officials who are sympathetic to the movement, the community has the ability to stop or reverse the discrimination being written into Michigan law.
“It is critical that we have a long-term political strategy with key legislative goals,” said Moss. “We must ask those running for elective office to affirm their support for LGBT equality and anything less means they do not get the support of this community.”
For ACLU of Michigan Action Alerts and to learn more about the range of issues covered by the LGBT Project, visit http://www.aclumich.org.