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July 29 | This Week in Government: Leaders, Advocates Praise Landmark ELCRA Ruling; Few Barbs During Final GOP Debate, Main Focus Whitmer AttacksAugust 2, 2022
Leaders, Advocates Praise Landmark ELCRA Ruling
A decades-long effort to make illegal discrimination on the basis of sexual orientation in employment, housing, and public accommodations ended in victory Thursday at the Michigan Supreme Court.
A 5-2 Supreme Court majority ruled the Elliott-Larsen Civil Rights Act’s prohibition on discrimination on the basis of sex, including sexual orientation, with many who have called for such protections for decades celebrating the ruling.
Justice Elizabeth Clement, appointed to the bench by Republican former Governor Rick Snyder, wrote the majority opinion in Rouch World v. Department of Civil Rights, signed by Chief Justice Bridget McCormack, Justice Richard Bernstein, Justice Megan Cavanagh, and Justice Elizabeth Welch.
Elliott-Larsen bars discrimination on the basis of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. For years, but especially in the last 15 years, members and allies of the LGBTQ community urged the Legislature to add sexual orientation and gender identity to the list of protected groups. Republican majorities in the Legislature refused to act. Even the Democratic majority in the House from 2007-10 declined to act, knowing the Republican-led Senate would block any bill it passed. Advocates attempted to gather the necessary signatures to put the issue on the ballot but fell short.
Meanwhile, in 2018, the Department of Civil Rights issued an interpretive statement holding that discrimination on the basis of sex encompassed sexual orientation and gender identity.
In 2019, Natalie Johnson and Megan Oswalt approached Rouch World about hosting their same-sex wedding at its facility, but Rouch World refused, saying it would violate their sincerely held religious belief that marriage is between one man and one woman. Johnson and Oswalt filed a complaint with the Department of Civil Rights, contending Rouch World discriminated against them on the basis of sex. Another company, Uprooted Electrolysis, denied hair removal services to Marissa Wolfe, a transgender woman. That resulted in a complaint with the Department of Civil Rights. The department opened investigations, but those were stayed upon the filing of litigation that Elliott-Larsen does not encompass sexual orientation and gender identity.
The lower courts agreed on the gender identity aspect but disagreed it included sexual orientation.
Clement wrote that discrimination on the basis of sexual orientation necessarily involves discrimination based on sex in violation of ELCRA.
“Sexual orientation is ‘inextricably bound up with sex’ because a person’s sexual orientation is generally determined by reference to their own sex. For example, attraction to females in a fellow female is considered homosexual, while the same trait in a male is considered heterosexual; the sex of the individual at issue is necessary to determine their sexual orientation,” she wrote. “To discriminate on the basis of sexual orientation, then, also requires the discriminator to intentionally treat individuals differently because of their sex.”
Mostly Democrats, but some Republicans have been pushing to add sexual orientation and gender identity to ELCRA for more than a decade. One of the first mainstream pushers of the idea that “sex” in the law would cover gender identity in Michigan, however, came from former House Speaker Jase Bolger, a Republican.
Still, in that 2013-14 term, as a Republican lawmaker was pushing for expansion of ELCRA and the issue got a hearing, he was ousted in a primary by former House Speaker Lee Chatfield. It wasn’t for four more years that the Department of Civil Rights issued its interpretative statement that the law did provide protections for sexual orientation and gender identity.
“At long last, we have protections for sexual orientation and gender identity in so many different areas that we never did before. And it is a great feeling,” Attorney General Dana Nessel said. “Let me talk about a few things that this opinion means. No longer will businesses, employers, retailers, educational institutions, landlords, realtors or others be permitted to discriminate against a person in Michigan based on their sexual orientation or their gender identity. What does this mean for LGBTQ people in this state? Well, it means no longer having your state government permitted to view you as a second-class citizen. It means better opportunities for jobs. Knowing that you can live wherever you can afford to, not having to worry about a diner or a coffee shop saying we won’t serve you here. … It means respect. It means equal dignity under the law. No more, no less. Here’s what it doesn’t mean. It doesn’t mean fewer rights for anyone else.”
Justice Brian Zahra and Justice David Viviano dissented. Zahra wrote the majority wrote what they thought the law ought to be, not what the law actually is. He also wrote simply that the definition of “sex” in 1976 did not include sexual orientation writing instead, it referred “to whether one is a biological male or a biological female.”
At the time, the authors of the Elliott-Larsen law said it simply could not have been passed had it explicitly included sexual orientation and gender identity.
Clement responded to his dissent in a footnote. She said Zahra’s assertion that “sex” and “sexual orientation” are not equivalent terms is correct, “but irrelevant to the analysis.”
“The narrow reading of ‘sex’ that his dissent offers fails to recognize that when Rouch World discriminates against a person ‘because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated trait: the employee’s sex,’” she wrote. “‘Sexual orientation’ does not have to be synonymous with ‘sex’ for the discrimination to be, inherently, sex-based.”
Sen. Jeremy Moss (D-Southfield) said in a statement that Thursday’s decision was a “needed glimmer of light in an otherwise dark time.”
“This victory in the Michigan Supreme Court affirms what LGBTQ Michiganders knew all along: Our lives have worth, and our work provides value. And now today, when faced with discrimination, we can seek justice,” he said. “Too many people in Michigan suffered hardships up until this decision — fired, evicted, or denied available services solely due to their sexual orientation or gender identity. This ruling, more than 40 years in the making, is owed to those who bravely fought against harassment and ridicule to be recognized in the Elliott-Larsen Civil Rights Act.”
Gov. Gretchen Whitmer also praised the decision, saying Michigan is more free and fair than it was yesterday.
“The Michigan Supreme Court has ruled decisively to confirm that our state’s civil rights laws protect our LGBTQ+ community,” she said in a statement. “This is a monumental victory that ensures our LGBTQ+ community is seen equally by state law and protected by it.”
The Michigan Catholic Conference, which has opposed having ELCRA apply to sexual orientation and gender identity is reviewing the decision, spokesperson David Maluchnik said.
There is the possibility Thursday’s ruling is not the final chapter. The U.S. Supreme Court is taking up a challenge to aspects of Colorado’s anti-discrimination law and whether its provisions barring discrimination on the basis of sexual orientation and gender identity impinge on religious freedom, with a ruling expected by the end of June 2023.
Many business groups also supported the ELCRA expansion, with the Detroit Regional Chamber saying Thursday the ruling is good news for the state.
“This ruling is a positive development for Michigan in its ongoing battle to attract and retain talent. The Chamber, alongside other business interests and leading employers, continues to call for inclusion of sexual orientation and gender identity protections in the Elliott-Larsen Civil Rights Act,” Sandy Baruah, president and CEO of the Detroit Regional Chamber, said in a statement. “Attraction and retention of talent remains a critical concern of Michigan employers, and welcoming policies such as this help address this challenge.”
Even with the ruling, advocates and lawmakers were still adamant the Legislature should codify the protections.
“While we are grateful that the Michigan State Supreme Court ruled in our favor, the fight does not stop there,” Equality Michigan Executive Director Erin Knott said in a statement. “As we are all too familiar, the court’s ruling does not guarantee our rights, and an official change in legislation to the Elliott-Larsen Civil Rights Act to include ‘sexual orientation’ and ‘gender identity and expression’ is still imperative.”
Few Barbs During Final GOP Debate, Main Focus Whitmer Attacks
PONTIAC – Republican gubernatorial candidates gave it one last shot Wednesday on the debate stage to make their case for getting their party’s nod to advance to the general election, largely lobbing attacks on Gov. Gretchen Whitmer’s record in office and liberal policies they said are damaging the state.
Personal attacks were relatively few and far between until the final minutes of the hour-long debate, held at the UWM Sports Complex Auditorium in Pontiac and moderated by the hosts of the WJR-AM “All Talk with Tom Jordan and Kevin Dietz.” It was a marked contrast from the most recent debate, which saw the candidates ferociously tear into each other.
Attacks between candidates began to ramp up when asked why they would be the best candidate to take on Whitmer.
Tudor Dixon referenced the attacks coming at her from both sides of the aisle. Establishment Republicans have begun to coalesce around her, along with super political action committees that have been providing significant backing, including monies from the DeVos family.
“Even the Democrats today are saying I’m the best person to get Gretchen Whitmer out of office because they’ve launched a $2 million attack ad against me,” Dixon said. “Even my opponents on the stage would say I’m the best person to win this election because they’re attacking me as well.”
She was referencing an attack ad being aired by the campaign of candidate Kevin Rinke, which, when it originally aired, accused Dixon of “taking millions” from actors such as the DeVos family and was quickly hit with a cease-and-desist letter. His campaign quickly removed that reference from the ad.
She went to say Rinke has “quadrupled down” on his attacks on her.
From there, Dixon said she would best hold Whitmer accountable for her coronavirus pandemic policies, including business and school closures along with nursing home policies that Republicans have long attacked.
To this, Rinke offered a rebuttal, saying, “You just listened to our version of Gretchen Whitmer.”
This was a repeat of a line he offered in the last debate.
Outside groups have, in fact, begun funneling large amounts of money in building up Dixon ahead of next week’s primary election. One Super PAC, Michigan Families United, spent more than $2 million in support of her, including. Members of the DeVos family provided up to $250,000 as well.
Rinke rebuked Dixon for claiming he is launching attacks on her.
“That’s what’s wrong with politics, folks: the truth hurts,” Rinke said.
Garrett Soldano also launched an attack on Dixon, beginning by saying he was “in the trenches” leading the conservative fight against Whitmer’s pandemic policies from the beginning of the pandemic.
He then repeated an attack from last week’s debate, asking Dixon if she would endorse GOP attorney general candidate Matt DePerno.
To this, Dixon said, “I’ve said multiple times I support him.”
In response, Soldano repeatedly kept trying to cut in to ask directly if she would formally endorse DePerno. While he did this, Dixon added that she is the only candidate that has worked to raise campaign funds for DePerno.
Outside the attacks during the latter stages of the debate, the candidates largely stuck with attacking Whitmer’s policies while in office, accusing her of using the state’s bureaucracy to bully businesses and the public during the pandemic and harming people financially.
Republicans have regularly blamed Whitmer for the more than 5,000 deaths from the coronavirus in long-term care facilities. They have blamed the governor’s early pandemic executive order requiring nursing homes, if they could do so safely, to admit COVID-19 patients not requiring hospitalization.
Several officials within the nursing home industry have said the order was never implemented before subsequent revisions. In late 2020 the Legislature later passed a bill that was signed by the governor to allow nursing homes to house COVID-19 patients if they are kept safely from healthy patients.
On Wednesday, candidates focused on this when asked how they would have approached the pandemic differently had they been in office.
Rinke said he would have used sound medical science rather than the approach Whitmer used for nursing homes.
As to her policy for nursing homes, school children, and businesses, he said, “She was playing (with) political science at our expense,” Rinke said.
Candidate Ralph Rebandt had similar thoughts on using what he called sound science, accusing Whitmer of “just ignoring everyone around her because she was looking to become the vice president.”
Candidate Ryan Kelley took aim at the governor, saying she “criminalized doctors who wanted to prescribe effective treatments or what they thought would have been effective treatments.”
Kelley said he would have brought doctors to the table to hear more varied perspectives on medical policy in response to the pandemic.
Whitmer has said repeatedly she did not relish having to issue the orders she issued and did, in fact, rely on medical experts.
On the issue of elections, candidates had diverging views on how best to improve election security and processes.
Dixon said she would support legislation like that that legislative Republicans sought to pass and were rebuffed by Whitmer with multiple vetoes.
“We will make sure that those bills pass the minute I am in office,” Dixon said.
Kelley pointed to the Wisconsin Supreme Court’s recent ruling banning most absentee ballot drop boxes in the state.
“That needs to happen here in the state of Michigan as well,” Kelley said, adding that along with a ban on ballot drop boxes, he would like to see strong voter signature match requirements.
Rinke said he is not a fan of mail-in absentee voting for everybody, as is current law. He would prefer to have it for military personnel or for other special circumstances, which he not specify. He added he would be supportive of allowing for early voting locations across the state.
On how to address high gas prices, Soldano was supportive of a temporary suspension of the tax on motor fuel purchases, as did Rebandt and Kelley.
Rebandt also called for the mining of natural resources in the state, while Kelley said the state needs to partner with other governors to ensure the increased drilling for oil and natural gas to meet demand and lower prices.
For energy prices, Rinke said a temporary pause is not a permanent solution, pivoting to his proposal to eliminate the state income tax, saying it would provide relief to residents in need of it with high inflation and gas prices.
Rinke Tops GOP Field in Money, But Whitmer Haul is Massive
Kevin Rinke’s personal wealth is dominating the low-spending Republican primary for governor, campaign finance reports filed Friday show, but Democratic Gov. Gretchen Whitmer served notice that whoever wins the Republican nomination faces a tsunami of campaign cash against them.
Whitmer raised $9.4 million between January 1 and July 17, bringing her total fundraising since winning the 2018 election to a staggering $29.3 million. Both are records – by far – for a gubernatorial candidate at this point in the cycle. As of July 17, Whitmer had $14.7 million cash on hand for the fall campaign, also a record for a gubernatorial candidate at this point in the cycle.
The situation among the five Republicans was somewhat bleak when looking ahead to August 3 and whoever is the newly minted nominee. Nearly all are extremely low on cash and likely will face a torrent of immediate advertising from Whitmer, outside groups, or both in a bid to define them before they can raise enough money to define themselves for a general election audience.
“Gov. Whitmer is fighting to cut costs for hardworking Michigan families, strengthen public education, repair roads and bridges, and create good-paying jobs,” Maeve Coyle, Gretchen Whitmer for Governor communications director, said in a statement. “Our campaign is proud to have the support of Michiganders in every single county as Governor Whitmer keeps working with anyone to deliver on kitchen table issues that matter most.”
But before the general election, there is still a wide-open Republican primary.
Rinke has spent more than twice this year on his campaign than the other four GOP candidates combined, campaign finance reports filed prior to Friday’s 5 p.m. deadline showed.
Rinke made good on his promise to commit $10 million of his own money to his campaign account and raised another $420,000 from others. He spent $5.65 million between January 1 and July 17 on a relatively modest television advertising campaign. While he has put $10 million of his own money into his campaign account, he was still sitting on $4.2 million as of July 17.
The other four Republicans in the race were far behind.
However, Tudor Dixon did enjoy a nice surge of fundraising for the January 1 through July 17 period, taking in $1.17 million, having raised just $500,000 before this year. She spent $731,306 this year and reported $537,890 cash on hand as of July 17.
Next in spending for the year was Garrett Soldano at $719,306. He has $332,096 cash on hand but did not include the more than $200,000 in public matching funds for which he received approval, and Soldano just applied for a second batch of matching funds. He raised $736,401 in private funds since January 1.
Fourth in spending was Ryan Kelley at $202,879. He had just $37,801 cash on hand remaining after raising $208,417 this year.
In fifth was Ralph Rebandt, with $164,326 spent.
None of the Republican candidates issued a statement regarding their fundraising.
One Democratic source said Whitmer’s haul was “insane” and expressed optimism her lopsided funding advantage would spill over down the ticket. The biggest donors to the governor were a variety of PACs, including Centene ($55,500 to max out for the cycle at $71,500), United Wholesale Mortgage ($42,850 to bring its total for the cycle to $50,000), the Michigan Infrastructure and Transportation Association ($34,000 to bring its total for the cycle to the $71,500 maximum). The Michigan Association for Justice contributed another $21,500 to max out for the cycle as well. Also reaching the maximum for the cycle during the most recent period were DTE Energy, Rock Holdings, and Blue Cross Blue Shield. Almost at the maximum is Meijer.
John Sellek of Harbor Strategic Public Affairs said Whitmer is on a different playing field than the Republican candidates for governor because she is a national figure who could be running for president in a year. He also said national Democrats are likely motivated to protect her given her previous tangles with the former president.
“We’ve never seen a non-self-funding machine like this and may not again,” he said.
As per the Republican candidates, Sellek said they probably did as expected. Maybe the only surprise, he said, was Soldano topping the $2 million mark.
“The GOP faces a serious and perhaps deadly period in August as Whitmer can spend a half-million per week, at least, all the way to Election Day, while it’s almost assured the Democratic Governors Association and related entities will firebomb the airwaves with negatives on the unknown GOP nominee as they struggle to raise funds,” he said.
A key metric will be if the Republican Governors Association begins attack ads on Whitmer any time soon.
During the period, Whitmer received individual donations from 145 people, with the maximum of $7,150.
Beyond the numbers among the candidates on the ballot, there were reports from those who were disqualified for lack of sufficient valid signatures. Several candidates fell short because of circulators hired either by the campaigns or by campaign contractors who forged signatures.
James Craig, who is running as a write-in, submitted a report that appeared rife with errors. He reported raising $1.26 million between January 1 and July 17 but reported cumulative fundraising of -$1.06 million from previous statements, which is not possible. In his last report, Craig reported having raised $1.4 million.
Craig reported spending $2 million between January 1 and July 17. As of July 17, he reported $88,166 on hand.
Craig’s spending will likely come under some scrutiny. He continued to spend heavily on security – $186,000 on security services this year alone, including payments after he was disqualified from the ballot.
The other highly anticipated report from a candidate disqualified from the ballot, for Perry Johnson, was not yet available.
Among the other three disqualified candidates, Donna Brandenburg raised $439,406 (all but $2,000 from herself) and spent $395,692 of it; Mike Brown raised $181,849 (all but $120,000 from himself) and spent $140,453; and Mike Markey raised $175,918 (all but $150,010 from himself) and spent $172,673 of it.
Lawyers, Youth Advocates React to Juvenile Sentencing Changes
As prosecutors work to understand the effects of the Michigan Supreme Court’s rulings on juvenile life sentencing to the justice system, advocacy groups, and defense attorneys are applauding the court’s decisions.
The court ruled on Thursday that it is unconstitutional to sentence 18-year-old defendants convicted of first-degree murder to automatic life imprisonment without the possibility of parole. The court also ruled that life with parole sentences for juveniles 17 and under were unconstitutional and put the burden on prosecutors seeking life sentences at resentencing hearings.
Several of the mostly 4-3 decisions cited the characteristics of youth as a mitigating factor in sentencing, and the rulings are likely to have a significant effect on young people facing life in prison.
Doug Lloyd, Eaton County prosecutor and president of the Prosecuting Attorneys Association of Michigan, said that more time was needed to review the decisions before commenting on them.
“Prosecutors are reviewing the impact that these decisions will have on the justice system,” he said.
There are 274 18-year-olds that are currently sentenced to life without possibility of parole or sentenced to life with possibility of parole, according to data provided by the Michigan Department of Corrections.
In the ruling on People v. Parks, the court determined that convicted 18-year-old defendants can still be subject to a prison sentence of life without parole, but they are entitled to the full protections that exist within individualized sentencing procedures prior to that determination. Such sentences cannot be automatic.
In an opinion written by Justice Elizabeth Welch and joined by Chief Justice Bridget McCormack, Justice Richard Bernstein, and Justice Megan Cavanagh, the majority found that the sentence imposed in the case failed to take into account the mitigating characteristics of youth, specifically late-adolescent brain development.
The State Appellate Defender Office applauded the decision in People v. Parks in a press release. It agreed that automatically sentencing an 18-year-old to life in prison violates the Michigan Constitution as cruel or unusual punishment.
“In rejecting a sentence of death in prison for Parks, the Michigan Supreme Court recognized what science and parents have long known – that teenagers are different from adults and that their brains are not fully developed,” Assistant Defender Angeles Meneses, Parks’ attorney, said in a statement. “We are excited for the youth we represent and the many other teenagers in the same situation.”
Harvey Santana, Michigan state director for the Alliance for Safety and Justice, a multistate organization that aims to replace over-incarceration with more effective public safety solutions rooted in crime prevention, community health, rehabilitation, and support for crime victims, also applauded the decisions.
“As an organization that represents crime survivors, anytime we can focus on rehabilitation is an opportunity to focus on safety,” he said in a statement.
Michigan Center for Youth Justice, an advocacy organization that works to advance equitable youth justice policies and practices, also supported the court’s rulings.
“It’s going to give the young people the opportunity to serve their sentence and be held accountable, but it also shows that young people have the ability to change, that they’re amenable to change and that they can be rehabilitated,” Executive Director Jason Smith said.
The ruling also will increase equity within the justice system, Smith said.
“Young people of color are disproportionately sentenced to long sentences, especially juvenile life without parole,” he said. “Hopefully, we’ll see more fairness and equity in the system in how people are sentenced going forward.”
State: Regional Jobless Rates Saw ‘Typical’ June Increases
Not seasonally adjusted jobless rates rose in 15 of Michigan’s labor markets, the Department of Technology, Management and Budget said Thursday.
Regional unemployment rates ranged from 3.9 percent to 6.5 percent during the month. Gains ranged from 0.3 percent to 1 percent, with a median increase of 0.7 percent, the state said. The Detroit area was the only region to experience a jobless rate decline during the month. The unemployment rate in Lansing has remained unchanged since May.
“Most of Michigan’s regional jobless rates saw typical June increases,” Wayne Rourke, associate director of the Bureau of Labor Market Information and Strategic Initiatives, said in a statement. “June nonfarm jobs increased throughout the state as seasonal hiring continued across multiple industries.”
Jobless rates decreased in all 17 Michigan labor market areas over the year, with a median decrease of 1.4 percentage points.
Twelve Michigan regions saw employment declines in June, with a median reduction of 0.9 percent. The largest employment reduction since May was in the Lansing area. Four labor market areas saw employment advances in June, led by the Northwest Lower Michigan region, up 3 percent. Employment in the Muskegon metro area remained unchanged during the month.
In the last year, employment advanced in all 17 Michigan labor market areas, with a median increase of 3.8 percent. The Ann Arbor metro region demonstrated the most pronounced employment increase since June 2021, up 5.7 percent.
The monthly survey of employers indicated that Michigan’s not seasonally adjusted nonfarm employment increased by 50,000 over the month, or 1.2 percent, resulting in a June payroll job total of 4,390,000. Employment gains occurred in most industry sectors, with the exceptions of government (down 14,000) and education and health services (down 3,000).
Ten Michigan metro areas saw nonfarm job gains over the month, with a median increase of 0.9 percent. The largest over-the-month employment increase of 1.7 percent occurred in both the Muskegon and Niles-Benton Harbor regions. Total nonfarm jobs declined in the Lansing and Ann Arbor metro areas and remained unchanged in the Bay City and Jackson regions.
Unemployment rates increased in 69 counties between May and June. In all 83 counties, jobless rates fell during the last year.