Gay or straight, right or left, Bernie Bro or Tea Partier, regardless of your politics, I bet you agree with me on one core principal: Whoever serves as the attorney general should at least understand the law, as well as be capable of following it. That’s just the basics, right? We might disagree on interpretation and application of the law and we might disagree about how to prioritize the work, but we assume a person who wants to be the top lawyer in our state at least understands what they are dealing with.
Unfortunately, as we’ve seen in Michigan, that isn’t always the case. Sometimes we elect an attorney general who is either incapable of understanding and/or following the law, or they just don’t care. They are too focused on their own self-promotion and their own political agenda to worry about facts.
Such is the case with Attorney General Bill Schuette.
We all know his personal opposition to equality — he never misses a chance to fight against us. But his manner of fighting against the LGBT community in our request for the Michigan Civil Rights Commission to issue an interpretative statement regarding whether sex discrimination includes sexual orientation and gender identity calls into question his basic grasp of the law. Last year Schuette had his office issue guidance to the commission that a) they weren’t allowed to take up this issue and b) if they did they could be personally liable for any legal challenges. Since both points are clearly false, he either doesn’t know the law that guides this decision, or he simply chooses to mislead the commission in his advice to them. Regardless of your personal beliefs, these errors ought to concern us all.
It’s a bedrock principal of administrative law generally, and the Michigan Procedures Act specifically, that the Civil Rights Commission is responsible for implementing our civil rights laws. The Legislature writes and passes laws, but since it can’t plan for every contingency or spell out every detail of how a law will be put into practice, commissions must interpret that law. And, since our state law is based on federal civil rights law that has increasingly been interpreted by the federal courts to include sexual orientation and gender identity under sex discrimination, it raises the question of how, or if, this impacts the application of the Elliott-Larsen Civil Rights Act. The law’s ambiguity, plus the commission’s duty to interpret ambiguous laws calls for action. Furthermore, Michigan law is clear that commissioners are immune from personal liability when they are engaged in a government function.
Meeting as a commission to fulfill the functions of their appointed position is clearly a government function.
You don’t have to be a legal scholar to understand this, but it’s no wonder that dozens of top legal scholars in our state sent a letter to the Civil Rights Commission last year explaining these basic concepts. They agreed that our attorney general could use a refresher course on Michigan law. And with the recent ruling by the 6th Circuit Federal Court of Appeals that a Michigan funeral home violated Title VII of the Civil Rights Act when they fired an employee simply for her transgender status, this issue is not going away. When the commission takes up the question again, he’ll have the chance to either issue sound legal advice, or at least not actively interfere with their work.
Michigan deserves better from our attorney general. We can disagree on the question of gay and transgender rights, but LGBT Michiganders are part of this state. And every Michigander (regardless of personal beliefs) deserves to have an attorney general who respects the law enough to understand it and represent it fairly. May we all keep that in mind as we choose our next attorney general this year.
(Stephanie White is the executive director of Equality Michigan. She writes this column monthly.)