Today Professor William Wagner called on the Michigan Legislature to formally request an Attorney General Opinion. He contends the Michigan Civil Rights Commission (Commission) unlawfully amended Michigan law when it unilaterally changed Michigan’s Civil Rights Act (CRA). He wants the Legislature to ask the Attorney General to determine the legality of the commission’s action.
Background
Christophobic activists relentlessly pursued the Commission to add “gender identity and sexual orientation” to the (CRA), via an interpretive statement.
The Justice Center’s Legal Analysis & Public Comment
Last September the Great Lakes Justice Center provided legal analysis to the Commission on the matter. The analysis explained why the Commission lacked legal authority to to add the new classifications. After hearing the legal analysis, the Commission declined to add the new categories. The Commission this week, however, bowed the knee to the activists. In unlawfully implementing their political sexual policy agenda, the commission effectively amended the Michigan Civil Rights statute.
Prior to the September hearing, the Justice Center filed a Public Comment with the Commission on behalf of State legislators. The comment responded to the activists. Professor Wagner then presented powerful testimony before the Commission and a packed hearing room. His persuasive testimony and Center’s comment made clear that legislative authority resides solely in the State Legislature.
Only the Michigan Legislature can Amend a Michigan Statute
Whether one supports or opposes amending our civil rights law to add new classifications, it is the legislature, not the Commission, that holds the power to do so. Nothing in Michigan’s Constitution authorizes the Commission to make new law in this area. Nor does Michigan’s statutory law. Moreover, nothing in our laws authorize the Commission to enforce this agenda. Nonetheless, under the guise of an interpretive statement, the Commission did so anyway.
The activists incorrectly claim the Commission holds legal authority under both state and federal law to add the new categories to the CRA. They also misleadingly claim that an interpretive statement provides special legal protection and remedies for the activists (read: LGBTQ+ plaintiffs suing Christian businesses). The Justice Center presented a simple review of the law demonstrating the untrustworthiness of the activist’s claims.
The Commission is not the Legislature
The Commission is not the Legislature. It is not politically accountable to the people. Under Michigan law an interpretive statement issued by the Commission is not binding law. It cannot, therefore, make LGBTQ discrimination “unlawful in Michigan.” The Commission cannot legally provide new remedies to alleged victims of discrimination. Moreover, activists wrongly claim that federal court interpretations of federal employment discrimination law are relevant and controlling. Michigan’s Supreme Court holds otherwise. Federal court interpretations of federal law are not binding on Michigan judicial review of the Michigan CRA.
Moreover, the current position of the Federal Department of Justice is that Title VII does not include sexual orientation or gender identity as protected classes. Rather, “the word ‘sex’ means biologically male or female.” Additionally, Michigan’s Legislature considered and rejected legislation eleven times since 1999 to add the requested categories. The Commission is bound to follow Michigan law.
David Kallman, Senior Counsel for the Justice Center said: “The Commission improperly accepted the activist’s invitation to ‘interpret’ Michigan law to mean something our legislature explicitly rejects.” Professor Wagner, President of the Justice Center added: “the Commission has the constitutional duty to enforce the laws passed by the legislature, not make up its own laws.”
Call to Action
The Commission’s unconstitutional exercise of legislative authority must not stand. Its action corruptly attacks good governance and religious conscience. Moreover, it intentionally ignores the Michigan Constitution. All legislative authority resides in the Legislature, not the Commission. The immediate remedy is an AG Opinion. Because an AG Opinion invalidates the Commission’s action, the Michigan Legislature should request it today.
Prof. William Wagner holds the academic rank of Distinguished Professor Emeritus (Law). He is a former Federal Judge and served as Chief Counsel of the Senate Judiciary Committee in the Michigan Legislature.
First of all, then, I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. (1 Timothy 2:1-2)
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