Michigan court says businesses don’t have to serve customers who are gay

A Michigan court has ruled that businesses can choose not to serve customers who are gay as per state law. The Michigan court interpreted that the Elliott-Larsen Civil Rights Act of 1976 (ELCRA) did not provide protection from discrimination in cases of sexual orientation. State Court of Claims Judge Christopher M. Murray said in a summary judgment that the state's definitive anti-discrimination law didn't cover sexual orientation and sexual identity. Michigan Attorney General Dana Nessel said they will fight the decision in a court. Of the two cases that the court ruled on, one was the case of Rouch World, a 300-acre park and wedding venue in Sturgis, that refused to host the wedding of a gay couple. The other case involved Uprooted Electolysis, a hair removal business in the Upper Peninsula’s Marquette, that refused service to a transgender client who was going through sexual reassignment surgery, reported Mlive. The court interpreted that in the case of Rouch World, they had the right to discriminate based on sexual orientation.

The ELCRA states discrimination based on “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” is illegal in the workplace, housing, schools, or access to public spaces. “I respectfully disagree with the Michigan Court of Claims on its ruling in this case as it relates to sexual orientation,” said Nessel. “Michigan courts have held that federal precedent is highly persuasive when determining the contours of the Elliott-Larsen Civil Rights Act, and federal courts across the country – including the U.S. Supreme Court in Bostock v Clayton Co – have held that discrimination on the basis of sexual orientation is a form of sex discrimination. Nessel confirmed he planned to appeal the decision. “We intend to submit that all Michigan residents are entitled to protection under the law – regardless of their gender identity or sexual orientation – in our appeal to this decision.”

While the ELCRA clearly states it's illegal to discriminate based on sex, the court judge found scope to deem it didn't include sexual orientation. The Michigan Department of Civil Rights issued its own interpretation stating that it included discrimination based on sexual identity and sexual orientation. The department had taken action against Rouch World and Uprooted Electolysis but Attorney David Kallman of Kallman Legal Group combined both cases and filed a lawsuit to challenge the Michigan Department of Civil Rights' rights. Kallman had cited the state Supreme Court ruling in Barbour v. Department of Social Services to make a case for businesses to deny service based on sexual orientation. The ruling had stated: “Harassment or discrimination based on a person’s sexual orientation is not an activity proscribed by the act.”

Judge Murray claimed that there was no precedent of the Michigan court ruling whether sexual identity is protected under the Elliott-Larsen Act. “As is often the case, when no guiding Michigan decision exists on the meaning of a provision within the ELCRA, courts turn to a consideration of federal decisions applying analogous provisions of Title VII,” wrote Murray. "Title VII is the section of the federal Civil Rights Act of 1976 that addresses discrimination, which courts have since ruled does protect based on gender identity."

“We are encouraged that the Michigan Court of Claims has ruled the word ‘sex’ in ELCRA encompasses gender identity, but we will continue to argue that the U.S. Supreme Court was right to conclude, as did the Michigan Civil Rights Commission, that ‘sex’ in this context is also inclusive of sexual orientation,” Michigan Department of Civil Rights Chair Stacie Clayton said. “The fact is that continuing to interpret the word ‘sex’ in a more restrictive way than we do any of the other protected classes under ELCRA is in itself discriminatory.”