Whitmer’s LGBTQ directive could face lawsuit on religious grounds

By: - January 22, 2019 10:22 pm

Susan J. Demas

The head of the State Bar’s Religious Liberty section is seeking to file a lawsuit that would challenge Gov. Gretchen Whitmer’s new executive directive barring LGBTQ discrimination, according to an email obtained by the Michigan Advance.

Tracey Lee, a West Bloomfield family law and nonprofit attorney, wrote to a group of lawyers encouraging them to “identify business owners who receive state funding in Michigan and are willing to do a pre-emptive challenge against Governor Whitmer’s executive directive.”

Lee specifically compared the effort to the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission case, in which the U.S. Supreme Court narrowly ruled that a Colorado baker was entitled to refuse service to a same-sex couple seeking a celebratory wedding cake.

It’s possible that a Michigan suit could become the next test case in the national fight against LGBTQ rights on religious grounds, although equality advocates told the Advance they feel confident Whitmer’s directive would withstand a legal challenge.

Lee denied she was speaking on behalf of the section, saying the email was “intended to encourage dialogue among section members about a relevant topic.”

The State Bar’s issue-related sections are voluntary organizations that do not speak for or advocate on the behalf of the Bar itself, which declined to comment.

Jeynce Poindexter (left) and Gretchen Whitmer (right) on Jan. 7, 2019 | Ken Coleman

One of Whitmer’s first executive directives after taking office on Jan. 1 bans discrimination against gay, lesbian, bisexual and transgender workers in state employment, contracting and procurement. The Democrat signed it on Jan. 7 at Affirmations, a Ferndale-based nonprofit serving the LGBTQ community.

The directive makes no exception for religious organizations, a key difference from a similar measure signed by GOP former Gov. Rick Snyder during his last days in office. In signing the directive Whitmer joined a bipartisan group of four new governors who have strengthened protections for LGBTQ citizens in Michigan, Wisconsin, Ohio and Kansas.

A spokesperson for Whitmer’s office declined to comment on Lee’s efforts.

Michigan recently elected its first openly LGBTQ statewide official in Attorney General Dana Nessel, a former Wayne County prosecutor. Nessel successfully argued one of the cases that would compose Obergefell v. Hodges, in which the U.S. Supreme Court ruled in 2015 in favor of same-sex couples’ right to marry.

The attorney general praised Whitmer’s directive when it was signed, but declined to comment on a potential challenge.

Dana Nessel being interviewed after a federal judge agreed to hear a challenge to its same-sex marriage ban, Oct. 16, 2013 | Bill Pugliano, Getty Images

“If there is a challenge to the directive, we will address it then,” said Nessel spokeswoman Kelly Rossman-McKinney. “We won’t discuss hypothetical cases.”

Lee’s email follows a unanimous resolution last week from the Alcona County Board of Commissioners that asked Whitmer to rescind the order. That resolution claimed that the governor “circumvented the legislative process” in invoking the Michigan Civil Rights Commission’s recently expanded definition of sex discrimination, which previously did not include sexual orientation and identity.

The GOP-led Michigan Legislature has not voted to amend the Elliott-Larsen Civil Rights Act to expand that definition, despite some bipartisan efforts to do so in recent years.

Former Attorney General and GOP gubernatorial nominee Bill Schuette — who Whitmer defeated on Nov. 6 — issued an opinion last year stating that the Civil Rights Commission was wrong in expanding the definition of sex discrimination, at the request of Republicans in Legislature. Schuette argued that “the Legislature, and not executive agencies or commissions, [has] the authority to change, extend, or narrow statutes.”

Lee’s LinkedIn page describes her as a member of the Alliance Defending Freedom, a Christian nonprofit that has frequently opposed LGBTQ initiatives and represented the petitioners in the Masterpiece Cakeshop case.

She also served as a spokesperson for the American Family Association of Michigan, an anti-gay rights group led by former state Rep. Gary Glenn (R-Williams Twp.).

Lee’s email included criticism of the “liberal media” and argued: “As people of faith and believers in the First Amendment, we as attorneys need to systematically dismantle the liberal and immoral agenda step by step.”

Barb Byrum, the Ingham County Clerk who performed Michigan’s first same-sex marriage in 2014, criticized the efforts to check the new governor as anti-democratic.

“Voters sent a message last November,” said Byrum, a former state House member. “They made it clear that they’re done with the same divisive politicians and fearmongering.”

Barb Byrum

Erin Knott, interim executive director for the LGBTQ rights group Equality Michigan, is confident that Whitmer’s directive will stand up against potential legal challenges.

“There is no doubt that both Gov. Whitmer and the Michigan Civil Rights Commission acted within their lawful authority, and I am confident that the Governor will vigorously defend her authority as the chief executive,” Knott said.

“We now have not one, but two, en banc decisions from federal appeals courts not only interpreting the identical phrase in Title VII of the Civil Rights Act of 1964, but adopting the specific interpretation of sex discrimination to encompass discrimination based on sexual orientation and gender identity,” she added. “A possible lawsuit is far outside the legal and mainstream public opinion.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Derek Robertson
Derek Robertson

Derek Robertson is a former reporter for the Advance. Previously, he wrote for Politico Magazine in Washington. He is a Genesee County native and graduate of both Wayne State University, where he studied history, and the Medill School of Journalism at Northwestern University.