Recent Developments Related to LGBTQ Rights

By: Claudia D. Orr

Legal nerd that I am I find it fascinating how the law develops and, in this case, law that affects the LGBTQ community. Today I report how the rights of the LGBTQ community took a giant step forward in Michigan, while the United States Supreme Court ruled in a case that placed a Colorado baker’s freedom of religion and expression at odds with a gay couple trying to buy their wedding cake.

Let’s start with the recent change in Michigan.  Last fall, the Michigan Civil Rights Commission (“MCRC”) fully intended to interpret the prohibition against sex discrimination as also prohibiting discrimination based on sexual orientation and gender identification. The MCRC would be following the Equal Employment Opportunity Commission’s (“EEOC”) lead in this regard.  However, during the public meeting on the issue, an assistant attorney general told the MCRC that it did not have the authority to reinterpret the Elliott-Larsen Civil Rights Act in this manner and, if it did so, the MRCR would not have governmental immunity and would be subject to lawsuit. Well, the MCRC obtained other legal opinions and has decided to push forward with its plan.  Thus, the Michigan Department of Civil Rights is now taking complaints of discrimination based on sexual orientation and gender identity.

So, why does this matter if the EEOC was already taking such complaints?  Glad you asked. It matters not only because it’s a public statement of support for the LGBTQ community in the State of Michigan, but also because claims filed under Title VII (and other federal civil rights laws) must be initiated within 300 days with the EEOC, whereas claims under state law have a three year statute of limitations.  Also, some employers are too small to be subject to the federal law (which only applies to employers with 15 or more employees) and there is no individual liability under Title VII whereas there is under the state’s civil rights act.  So, this is more than a statement of support.  In some cases this decision can have real consequences.

Let’s now turn to the recent Supreme Court decision.  In Masterpiece Cakeshop Ltd v Colorado Civil Rights Comn’n, a gay couple had asked the bakeshop and its owner to prepare a wedding cake for their wedding reception.  At the time of their request, Colorado did not recognize same sex weddings, so the couple intended to marry in Massachusetts (which allowed for same sex marriages), and then return to Colorado for a celebration with family and friends.  Jack Phillips, the baker and owner of the bakery, refused to make a wedding cake for the couple, but would sell them any other bake goods.  The couple filed a charge of discrimination with the Colorado Civil Rights Commission (“the Commission”).

The Commission determined that the bakeshop was subject to the “public accommodations” section of the state civil rights law and found for the gay couple. It ordered Phillips “to cease and desist from discriminating against…same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.”  It also required the bakery to provide its staff with training on the public accommodations section of the state discrimination law. The appeals process began and the case eventually ended up before the United States Supreme Court where Justice Kennedy wrote the lead opinion.

A divided Supreme Court recognized that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.  The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.  At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” “[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

The court continued its analysis by also recognizing that it would be assumed that a member of the clergy who objects to gay marriage would not be compelled to marry a same sex couple because of the clergy’s right to free exercise of religion.  However, such exceptions should be confined or “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” While all of this is a very strong statement of civil rights for gay couples, there is a twist in this case that resulted in a favorable ruling to the bakery and its owner.

So, how is it that the Supreme Court ruled in favor of the baker?  Here, Phillips argued “that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation.  Phillips argued that this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” Remember, at the time Phillips refused the couple’s request, same sex couples could not marry in Colorado.

The court recognized that Phillips’ First Amendment rights needed to be considered in any ruling in this case.  The court found, however, that the Commission not only failed to give Phillips’ First Amendment rights a neutral and respectful consideration, but actually demonstrated an open and impermissible hostility towards his sincerely held beliefs. It quoted one of the commissioners who had stated during the hearing:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.

The court found it significant that none of the other commissioners objected to the description of this one man’s faith as “despicable rhetoric” or by the comparison of his firmly held beliefs to defenses of the holocaust or slavery.  The court also found it interesting that the Commission had previously approved of bakers who refused to prepare cakes on the basis of conscience when the requested cake contained anti-gay slurs, along with religious text. Phillips argued, and the court agreed, “the Commission had treated the other bakers’ conscience-based objections as legitimate, but treated his as illegitimate – thus sitting in judgment of his religious beliefs themselves.”  The court found that the “Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

The court concluded by stating “[t]he outcome of cases like this in other circumstance must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”  Thus, the ruling is narrow and based on the open hostility shown by the Colorado Commission to the sincerely held beliefs of the baker.

We will need to wait for another case, where such hostility is not shown by the government, to see how the interests and rights are balanced against one another. In the meantime, if you need assistance with revising your company’s discrimination/harassment policies or training your employees on their rights and obligations under civil rights laws, you should consult with an experienced employment attorney, such as the author.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2018.