McMillin targets anti-discrimination ordinances

Activists and civil libertarians are concerned about proposed legislation from a Republican lawmaker that would gut local non-discrimination ordinances that offer protections to groups not covered by the state’s civil rights law.

Rochester Hills Republican Tom McMillin introduced the legislation two weeks ago.

“This is the most outrageous, most egrerious attack against the lesbian and gay community,” says Denise Brogan-Kator, executive director of Equality Michigan. “If it sees the light of day, it will be challenged.”

Brogan-Kator notes that many municipalities have adopted far more comprehensive non-discrimination laws than the state’s Elliott-Larsen law. Among these municipalities are 15 which have extended protections for residents on the basis of sexual orientation, including Lansing, Grand Rapids, Kalamazoo, Grand Ledge and Ferndale.

Both Kalamazoo and Lansing had to battle ballot initiatives over their ordinances. Lansing lost their battle in 1996, but in 2006 the city approved the ordinance without any resistance. In Kalamazoo, residents upheld the ordinance in 2009.

Cheryl VanderKerkhove lead the battle in Lansing to retain the 1996 legislation.

“When is civility going to return to our Republican elected officials? Apparently Rep. McMillin has forgotten that our nation’s very constitution was formed to, ‘establish Justice, insure domestic Tranquility…’ and, ‘promote the general Welfare.’ There is nothing ‘just’ about this bold-faced attempt to gut civil rights established by more advanced communities, and attacking citizens with unjust prejudice and discrimination will certainly not ensure anyone’s ‘tranquility,’” Vanderkerkhove said. “Even the mean-spirited people who delight in presuming themselves somehow more worthy of fair treatment than other citizens don’t get ‘tranquil’ over knowing they are blessed with the legal right to treat other people poorly, and they can feel validated and supported in their fears, cowardice and misguided biases against others.”

“We should be ashamed and embarrassed to even consider this backwards legislation,” she continued. “Michigan’s anti-gay constitutional amendments are some of the most reprehensible in the country. I wonder what Rep. McMillin and his ilk are going to do when they’ve chased off all the talent and taxes of the diverse Michigan citizenry who prefer for themselves, their loved ones and their friends to be treated with fairness and respect rather than hateful prejudice and fear mongering for the sake of political gain. Shame on you. And so much for the truths we used to, as a country, hold to be self-evident – that all of us are created equal, and endowed by our creator with certain unalienable rights…”

While the law does not specifically target sexual orientation and gender identity and expression, the reality is quite different says Brogan-Kator.

“One of the interesting things about the law and the interpretation of the law is that just because something is not written in the law, does not mean it was not the intent,” she says. “Those things are brought in by the legislative history and the contemporary news reports about the debates leading up to the passage of a law.”

That, she says, means the law will likely fly in the face of Romer v. Evans, a U.S. Supreme Court decision from the 1990s. In that case, an amendment to the Colorado state constitution would have prohibited local municipalities from protecting people in their local non-discrimination ordinances based on sexual orientation. But the high court ruled that the amendment violated the 14th Amendment’s Equal Protection Clause by prohibiting one group of people from engaging the government to protect their interests.

“With regards to an equal protection challenge, the result of McMillin’s bill would be to prohibit protections for any category that is not already enumerated in our state civil rights law,” says Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project. “It is not targeting sexual orientation and gender identity specifically, as the Colorado law did in Romer v Evans, but I think it clearly has the same effect of Colorado’s law, prohibiting any protections against LGBT discrimination in both state and local governments, and given McMillin’s public policy record, clearly motivated by an animus towards LGBT people. I believe it could be successfully challenged on equal protection grounds as well.”

Kaplan said the law also likely violates the Michigan constitution:

“I think McMillin’s proposed legislation raises a number of legal issues, particularly the authority under Michigan’s constitution (Article 7) of municipalities to ‘adopt resolutions and ordinance relating to its municipal concerns,’ which clearly includes the right to pass human rights ordinances that provide for anti-discrimination protections that include categories in addition to those in Michigan Civil Rights laws,” he said. “Michigan courts have long recognized our State as a ‘home rule’ state, where the powers of municipalities are to be ‘liberally construed.’ There is nothing in Michigan’s constitution that says municipalities cannot go further in terms of civil rights protections in their community, and McMillin’s legislation appears to be an unconstitutional power grab against local governments.”

Local lawmakers who have worked to pass such legislation also object to the bill. Nathan Triplett, a city councilmember in East Lansing, said, “House Bill 5039 is an unnecessary and unjustifiable intrusion into an important issue of local concern for Michigan cities. The state legislature has no business telling communities that we cannot recognize the equal dignity of each and every one of our residents by enacting inclusive anti-discrimination ordinances. The practical effect of this legislation in the city of East Lansing will be to legalize discrimination based on sexual orientation and student status. That is completely unacceptable and does not represent the values of our community.”

East Lansing was the first city in the country to prohibit discrimination on the basis of sexual orientation, in March of 1972.

But McMillin says this is about creating laws which are uniform across the state.

“I think it is good and correct public policy for the subdivisions of the state to keep the same definition of what constitutes civil rights protections, as the state does. That’s what HB5039 simply says,” McMillin says. “Liberals wanting to add additional protections based on one’s sexual activity are at least going about it the right way, they recently announced an effort to change the Elliot-Larsen Act. That’s where the debate belongs, at the state level. I don’t believe it is good to have municipalities trying to amend the Elliot-Larsen Act in kind of a backdoor manner. Having a patchwork of different definitions of who has the extra civil rights protections, depending on which side of a road you live or work on (different municipalities) doesn’t make sense.”

He also said the local ordinances were violating the rights of others.

“I also know that the local special rights ordinances are used to discriminate against groups like the Boy Scouts in Detroit, a Christian-owned printing business in Ypsilanti who didn’t want to print items for an event celebrating something he views as sinful, and is likely to be used against Christian-owned coffee shops in the Traverse City area,” he said.

“Discrimination is happening right now. If local political leaders don’t want to wait for Lansing to do the right thing by protecting all people — including our gay and transgender neighbors — from discrimination while making Michigan a better place for business, then cities should have the ability to step up and lead,” says Jon Hoadley, executive director of Unity Michigan, a coalition pulled together to push for change in legal status for LGBT people in the state.

The group has launched a tongue-in-cheek campaign to raise awareness that in those places in the state where there is not a local ordinance, it is legal to fire some one for their sexual orientation or gender identity. The campaign includes downloads to “hide” one’s sexual orientation by playing into gender role stereotypes.

“DontChangeYourself.com is a campaign that uses humor to highlight the very serious need in Michigan for nondiscrimination protections that include gay and transgender people,” Hoadley said. “We’re providing tongue-in-cheek tips for appearing ‘not gay’ in the workplace, and we’ll have new content coming over the course of the campaign. We’re also asking people across Michigan to join us in letting Speaker Bolger know that Michigan supports protections for gay and transgender people.”