By Daniel A. Gwinn
Every year, my associate, Laura Bradshaw-Tucker, and I attend the mid-winter meeting of the Labor and Employment Law Section of the State Bar of Michigan. The educational event features updates on case law and discussions on legal trends and it ends with a dinner that features a speech from a legal professional – a lawyer, judge or legal scholar.
This year was different. The dinner speaker, Jim Obergefell, experienced the legal system as a client fighting for his rights, and those of thousands of couples across the U.S. Obergefell was the lead Plaintiff in the 2015 Supreme Court case establishing that same-sex couples have a Constitutional right to marry. Obergefell's speech, detailing his fight to legally marry his long-term partner, had some of the lawyers in the audience near tears.
The Fight for Love
Obergefell met and fell in love with his future husband, John Arthur, more than 20 years before the Supreme Court's decision. They became partners, committed to each other. Then, in 2011, Arthur was diagnosed with ALS. The couple resolved that while Arthur was alive, they would demonstrate their commitment and be recognized as the "old married couple" they considered themselves to be. However, they lived in Ohio, where same-sex marriage was illegal.
Friends and neighbors pitched in so Arthur and Obergefell could charter a medical transport plane, at a cost of $14,000, to fly the ailing Arthur to Maryland, where they could legally tie the knot. And there, with Arthur too ill to be moved, they were wed — inside the plane, parked on the tarmac in Baltimore. When they returned to Ohio, the state refused to recognize their marriage. The couple learned Obergefell could not even be listed as a "surviving spouse" when Arthur died.
Obergefell said that it was this indignity that moved the couple to action. With the aid of counsel, they sued, asking that the Ohio Registrar be ordered to recognize Obergefell as the surviving spouse on the death certificate when Arthur died. His attorney, under pressure from attorneys in other jurisdictions involved in the same fight to make a broad case, stuck to his guns and kept his argument narrowly focused. Ohio's refusal to recognize a marriage performed in another jurisdiction, even on the death certificate, inflicted substantial and continuing harm on Obergefell. Obergefell attributed the lawsuit's early success to the manner in which his counsel framed the argument.
Initially, they prevailed. In July 2013, the District Judge for the Southern District of Ohio granted a temporary order, restraining the registrar from accepting a death certificate unless it recorded Arthur's status at death as "married" and listed Obergefell as his surviving spouse. In October 2013, before the injunction could become permanent, Arthur died. In December that year, over objections from the state that Arthur's death rendered the question moot, the District Court Judge ruled that Ohio's refusal to recognize same-sex marriages performed in other states was discriminatory.
Any satisfaction the now-widowed Obergefell felt at this legal victory was short-lived. The State of Ohio appealed the decision to the 6th Circuit Court and it won. Obergefell described the loss as devastating, but the negative ruling proved to be a blessing. The 6th Circuit's decision created a split in the Circuits, which allowed the case – consolidated with several others, including the Michigan case of DeBoer v. Snyder – to move to the Supreme Court of the United States.
There, Obergefell not only won the right to be listed as his husband's "surviving spouse," but helped win the right for all same-sex couples to become legally married.
The Fight is Not Over
But, he told the audience, the right to marry, while significant, is not full equality: LGBTQ people can be fired from or refused a job simply because of their gender identity or orientation. He reminded the audience that the Supreme Court heard oral arguments Oct. 8, 2019, on a group of cases challenging the exclusion of sexual orientation and gender identity as protected categories in employment under Title VII's prohibition against discrimination "because of sex." A decision in those cases could establish equal opportunity in employment for LGBTQ people, or provide a stronger legal basis for denying equal access to the workforce. The fight for equal rights is not over.
As Obergefell finished his speech, the audience of attorneys honored him with a standing ovation.
His warning that the fight for equal opportunity in employment persists holds true in Michigan, one of 30 states that permit such discrimination against LGBTQ people. Although Michigan's Elliott-Larsen Civil Rights Act protects an unusually broad group from employment and housing discrimination – barring discrimination on the basis of age, sex, race, color, national origin, weight, height, familial status and marital status – efforts to extend those protections to LGBTQ people routinely fail.
For more than 30 years, bills have been introduced to include sexual orientation and gender identity in ELCRA's protected classes; and for over 30 years, the bills have failed. As recently as June 2019, a bill to expand ELCRA, sponsored by Rep. Jon Hoadley, with more than 50 co-sponsors, was introduced with much hoopla. That same day, it was referred to the Committee on Government Operations. There has been no action since.
Michigan is not without some protection from employment discrimination for LGBTQ people: 20 Michigan cities, including conservative Grand Rapids, middle-of-the-road Mt. Pleasant and largely Democratic Detroit prohibit such discrimination. Last year, Gov. Gretchen Whitmer signed Executive Directive 2019-09, which protects LGBTQ people who work for the state from discrimination in employment.
On Jan. 7, a coalition of civil rights, business and political leaders launched a petition drive to amend ELCRA to include employment protections for LGBT people. If the group is able to collect more than 340,000 signatures by June, the proposal could appear on the ballot in November.
For a survey of legal developments in the law on employment rights for LGBT people, please refer to our article, "Free to Marry, Not Free to Work," which appeared in the Michigan Bar Journal in June 2017.
Daniel A. Gwinn is an attorney in Troy. His practice includes employment and employment discrimination law, probate, trusts and estates.
