Gov. Gretchen Whitmer filed an amicus brief Thursday in support of the Michigan Department of Civil Rights (MDCR) in the case of two businesses seeking to discriminate against LGBTQ+ people on the basis that it violates their religious freedom.
Whitmer’s brief is in support of the MDCR’s assertion that the Elliot-Larsen Civil Rights Act (ELCRA) prohibits discrimination on the basis “sex” and that sex, in this instance, includes sexual orientation and gender identity.
Further, the brief argues that it is impossible to discriminate on the basis of sexual orientation, gender identity or gender expression without discriminating on the basis of sex.
“Throughout their pleadings, plaintiffs frame this case as being about whether the word ‘sex’ in ELCRA includes ‘sexual orientation,” reads the brief in part. “That is not what this case is about. The definition of ‘sex’ does not need to include ‘sexual orientation’ for it to be true that discrimination on the basis of sexual orientation necessarily constitutes discrimination on the basis of sex.”
The ELCRA, as it stands now, says that a person shall not “deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex or marital status.”
The plaintiffs in the case, Rouch World, an amusement park and wedding venue, and Uprooted Electrolysis, claim that the word “sex” does not include sexual orientation or gender identity.
The governor’s brief urges the Michigan Supreme Court to overrule erroneous past precedent in Barbour v. Department of Social Services that held that sexual orientation does not fall within the meaning of the word “sex” in the ELCRA.
Last December, Court of Claims Judge Christopher Murray ruled that the ELCRA discrimination ban on the basis of sex included gender identity but not sexual orientation. He cited the case of Barbour v. Department of Social Services as precedent.
“Unfortunately, the court … was prevented from agreeing with the Department [of Civil Rights] because it was bound by Barbour v. Department of Social Services … a near 30-year-old Michigan Court of Appeals decision that was wrong when it was decided and is wrong now,” reads a section in the brief. “The cursory analysis in Barbour was based on analogous federal decisions interpreting Title VII of the Civil Rights Act of 1964. Those decisions were also wrong, as the U.S. Supreme Court recently held in Bostock v Clayton County, Georgia.”
Michigan Attorney General Dana Nessel filed a bypass application to allow the appeal to head straight to the state supreme court. The court, now with a Democratic majority, allowed the bypass with a 4-3 vote.
“The governor’s brief urges the Michigan Supreme Court to overrule erroneous past precedent,” said John LoPorto of the Public Affairs Department of the Governor’s office. “Governor Whitmer has been a champion of the LGBTQ community since her days in the state legislature. Under her administration, Michigan has taken an immense leap forward to equality, and I look forward to what is in store for the future.”