Rouch World LLC v. Department of Civil Rights ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
ROUCH WORLD, LLC v DEPARTMENT OF CIVIL RIGHTS
Docket No. 162482. Argued March 2, 2022. Decided July 28, 2022.
Rouch World, LLC, and Uprooted Electrolysis, LLC, brought an action in the Court of
Claims against the Department of Civil Rights and its director, seeking, among other relief, a
declaratory judgment that the prohibition of sex discrimination in places of public accommodation
under the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., did not bar
discrimination based on sexual orientation or gender identity. The owners of Rouch World had
denied a request to host the same-sex wedding of Natalie Johnson and Megan Oswalt at their
facility, claiming that doing so would violate their religious beliefs. The owner of Uprooted
Electrolysis had denied hair-removal services to Marissa Wolfe, a transgender woman, on the same
basis. Johnson, Oswald, and Wolfe filed complaints with the Department of Civil Rights, which
had issued an interpretive statement in 2018 indicating that the ELCRA’s prohibition against
discrimination based on sex included sexual orientation and gender identity. The Department of
Civil Rights opened an investigation into both of these incidents, but the investigations were stayed
when plaintiffs brought this action. Defendants moved for summary disposition under MCR
2.116(C)(8). The Court of Claims, CHRISTOPHER M. MURRAY, J., concluded that it was bound to
follow Barbour v Dep’t of Social Servs, 198 Mich App 183 (1993), which had relied largely on
then-current federal precedent regarding analogous provisions of Title VII of the Civil Rights Act,
42 USC 2000e et seq., to conclude that the ELCRA’s discrimination prohibition did not encompass
sexual orientation. The Court of Claims therefore denied defendants’ motion for summary
disposition as applied to plaintiff Rouch World’s arguments. However, because Barbour did not
concern gender-identity discrimination, the Court of Claims ruled that when a person discriminates
against someone who identifies with a gender different than that assigned at birth, then that is
dissimilar treatment on the basis of sex and is prohibited under the ELCRA. In so concluding, the
Court of Claims relied, in part, on the United States Supreme Court decision in Bostock v Clayton
Co, 590 US ___, ___; 140 S Ct 1731 (2020), wherein the Court held that an employer violates
Title VII when it intentionally fires a person on the basis of their homosexuality or transgender
identity because doing so necessarily involves discrimination based on sex. Accordingly, the
Court of Claims granted defendants’ motion for summary disposition as to plaintiff Uprooted
Electrolysis’s arguments. Defendants filed an interlocutory application for leave to appeal in the
Court of Appeals, challenging the rejection of summary disposition as to Rouch World.
Defendants then filed a bypass application in the Supreme Court, which granted the application to
address “whether the prohibition on discrimination ‘because of . . . sex’ in the [ELCRA] applies
to discrimination based on sexual orientation.” 507 Mich 999 (2021).
In an opinion by Justice CLEMENT, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court held:
Discrimination on the basis of sexual orientation necessarily constitutes discrimination
because of sex. Accordingly, the denial of “the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of a place of public accommodation or public
service” on the basis of sexual orientation constitutes discrimination “because of . . . sex” and,
therefore, constitutes a violation of the ELCRA under MCL 37.2302(a). The Court of Appeals’
decision in Barbour was overruled, and the Court of Claims’ decision with respect to Rouch World
was reversed.
1. The ELCRA provides in MCL 37.2302(a) that except where permitted by law, a person
shall not deny an individual the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of a place of public accommodation or public service
because of religion, race, color, national origin, age, sex, or marital status. In Barbour, the Court
of Appeals held that the ELCRA did not encompass sexual-orientation discrimination, and it based
this decision on federal cases holding, with regard to Title VII, that Congress’s intent in prohibiting
discrimination because of sex was to place women on an equal footing with men rather than to
regulate discrimination based on sexual orientation. Since the Court of Appeals decision in
Barbour, the cases on which that Court relied were overturned in Bostock, 590 US ___; 140 S Ct
1731. In Bostock, the United States Supreme Court considered whether discrimination based on
sexual orientation or gender identity was encompassed by Title VII’s prohibition of employee
discharge because of sex. The Court proceeded on the assumption that “sex” referred only to
biological distinctions between male and female. Next, the Court noted that it had previously
defined “because of” as meaning “by reason of” or “on account of,” which established a but-for
standard of causation. The Court specifically eschewed a definition of discrimination that would
require an analysis comparing the employer’s differential treatment of employees grouped by
protected characteristic rather than individual employees themselves, concluding that the relevant
inquiry under Title VII was whether the specific employee was treated differently, not whether the
employer treats different groups of persons differently. From these textual assessments, the Court
deduced that an employer violates Title VII when it intentionally fires an individual employee
based in part on sex. Applying this principle to discrimination on the basis of sexual orientation
and gender identity, the Court concluded that it would be impossible to discriminate against a
person for being homosexual or transgender without discriminating against that individual based
on sex—in other words, the Court held that discrimination based on sexual orientation or gender
identity is necessarily encompassed within discrimination because of sex.
2. The Michigan Supreme Court has previously held that the operative phrase “because
of” in the ELCRA establishes a but-for causation standard. Under this standard, causation is
satisfied where sex is a determining factor in the discriminatory action; in other words, causation
is established where the discriminatory action would not have occurred but for the sex of the
complainant. Accordingly, the question in this case was whether complainants who were denied
service because of their sexual orientation would not have been so denied but for their sex. Like
its federal counterpart, the ELCRA does not define the term “sex.” However, regardless of whether
one defines “sex” expansively or narrowly, the result of the textual analysis is the same:
discrimination on the basis of sexual orientation necessarily involves discrimination because of
sex in violation of the ELCRA, for the persuasive reasons articulated in Bostock.
3. Rouch World denied Johnson’s request for services related to her wedding with Oswalt.
Had Johnson been a man, Rouch World would not have denied its services. In other words, but
for Johnson’s sex, Rouch World would have rendered its services to Johnson. Although Rouch
World’s motivation for its denial of services was based on Johnson’s sexual orientation, it was
nevertheless true that, holding all other facts constant (including the sex of the romantic partner
involved), Rouch World discriminated against Johnson because of her sex. Because one’s sex is
necessary to the identification of sexual orientation, discrimination on that basis is discrimination
on the basis of sex. Incorporating an additional consideration—such as the sexual preference of
that individual—and retitling that pair of considerations does not remove the effect of sex from
the equation. Contrary to the argument put forward by Rouch World, the ELCRA’s prohibition of
sex discrimination requires a determination whether a specific individual was treated worse than a
member of the opposite sex would have been; it does not ask how one sex-based group is treated
as compared to another sex-based group. Further, evidence that the 1976 Legislature that enacted
the ELCRA intentionally chose to exclude protections from discrimination based on sexual
orientation, both at the time of its enactment by declining to include the specific language and
repeatedly thereafter, would have been relevant only if the statute were ambiguous. When a
statute’s language is clear, as it was here, its plain language is the best evidence of its meaning.
While the principal evil motivating the 1976 Legislature to prohibit discrimination on the basis of
sex may have been the preferential treatment of males to the detriment of females, this motivation
does not curtail other applications of the plain statutory language. Both the ELCRA and Title VII
have been applied to circumstances likely unanticipated by the enacting Legislature, including
pregnancy discrimination, sex-stereotyping cases, same-sex sexual harassment, and retirement
accounts. The Legislature’s failure to foresee particular statutory applications does not prohibit
these applications as long as they are consistent with the plain language of the statute.
Reversed in part and remanded for further proceedings.
Justice ZAHRA, dissenting, took no issue with the merits of the policy adopted by the
majority, but stated that under the Michigan Constitution and its separation of powers, it is the
ultimate responsibility of the Legislature or the people to write, amend, or repeal the laws, while
the Supreme Court’s duty is to say what the law is rather than what it ought to be. He stated that
the majority’s conclusion that the ELCRA prohibits discrimination based on sexual orientation
construed “because of . . . sex” to mean something that nobody in 1976 thought it meant, according
to lay dictionaries and linguistic evidence of the period, and he noted that none of the entities
charged with enforcing the ELCRA understood it to prohibit sexual-orientation discrimination
until 2018. The fact that the Legislature specifically and explicitly considered adding sexual
orientation to the ELCRA but ultimately chose not to do so materially distinguished this case from
Bostock, thereby requiring a different outcome. Justice ZAHRA concluded that the ELCRA’s use
of “sex” refers to whether one is a biological male or a biological female and that defendants did
not prevail under that narrower definition. For these reasons, he would have affirmed the Court of
Claims’ conclusion that sexual orientation is not a protected class under the ELCRA.
Justice VIVIANO, dissenting, agreed with Justice ZAHRA’s conclusion. He wrote separately
to state that the majority altered the meaning of the ELCRA by adopting the logic of the but-for
test without the need for a defendant to have any discriminatory intent, which did not reflect the
ordinary meaning of the statute or the inherently intentional nature of discrimination. He noted
that the results would be significant for Michigan, given that the scope of the ELCRA extends
beyond the statute at issue in Bostock because it covers all employers. Further, it does not appear
that the ELCRA contains exemptions for religious organizations similar to those in the statute at
issue in Bostock or that other statutes offer protections for religious liberty that supersede the
ELCRA’s requirements. The majority’s failure to consider whether its interpretation of the
ELCRA violated constitutional protections of religious liberty departed from the principle that
courts will first consider whether an interpretation raises grave constitutional doubts before
adopting that interpretation, and given that various amici argued that the majority’s interpretation
would trench on constitutional liberties, the majority should have considered those concerns.
Justice VIVIANO would have held that MCL 37.2302(a) does not prohibit discrimination because
of sexual orientation and that the ELCRA applies only if a defendant took a prohibited action as a
result of a prejudice, bias, animus, or belief with regard to a particular protected characteristic.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 28, 2022
STATE OF MICHIGAN
SUPREME COURT
ROUCH WORLD, LLC, and UPROOTED
ELECTROLYSIS, LLC,
Plaintiffs-Appellees,
v No. 162482
DEPARTMENT OF CIVIL RIGHTS and
DIRECTOR OF THE DEPARTMENT OF
CIVIL RIGHTS,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
CLEMENT, J.
At issue for our consideration is whether the prohibition of discrimination “because
of . . . sex” in the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq.,
encompasses discrimination on the basis of sexual orientation. We hold that it does.
Accordingly, we overrule the Court of Appeals decision in Barbour v Dep’t of Social Servs,
198 Mich App 183, 185; 497 NW2d 216 (1993), and reverse in part the Court of Claims
decision below.
I. LEGAL BACKGROUND
This case concerns acts of alleged discrimination investigated by defendant, the
Michigan Department of Civil Rights (the MDCR). The MDCR is an administrative
agency that serves as the operational arm of the Michigan Civil Rights Commission (the
MCRC). See MCL 16.575 through MCL 16.577. The MCRC is a constitutional body
whose purpose is to secure constitutional and statutory guarantees against discrimination
and investigate allegations that those guarantees have been violated. Const 1963, art 5,
§ 29.
Among the legal guarantees against discrimination enforced by the MCRC is the
statutory guarantee against discrimination provided by the ELCRA. The ELCRA
recognizes as a civil right “[t]he opportunity to obtain employment, housing and other real
estate, and the full and equal utilization of public accommodations, public service, and
educational facilities without discrimination because of religion, race, color, national
origin, age, sex, height, weight, familial status, or marital status . . . .” MCL 37.2102(1).
Through the recognition and protection of this civil right, the ELCRA seeks to dismantle
“the prejudices and biases borne against persons because of their membership in a certain
class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices,
and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984)
(quotation marks and citations omitted).
2
The ELCRA specifically protects against discrimination in public accommodations 1
as follows:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service because of religion, race, color,
national origin, age, sex, or marital status. [MCL 37.2302.]
Pursuant to its role in enforcing the ELCRA, the MCRC in May 2018 offered to the
public for guidance its nonbinding interpretation of the practices prohibited by this
statutory provision. 2 Specifically, Interpretive Statement 2018-1 opines that the
prohibition of discrimination in places of public accommodation “because of . . . sex” in
MCL 37.2302(a) includes a prohibition of discrimination on the basis of sexual orientation
and gender identity. The MCRC reasoned “that continuing to interpret the protections
1
MCL 37.2301(a) defines a “place of public accommodation” as
a business, or an educational, refreshment, entertainment, recreation, health,
or transportation facility, or institution of any kind, whether licensed or not,
whose goods, services, facilities, privileges, advantages, or accommodations
are extended, offered, sold, or otherwise made available to the public.
2
Interpretive statements issued by the MCRC do not have the force of law. MCL
24.207(h); Mich Farm Bureau v Bureau of Workmen’s Compensation, 408 Mich 141, 149-
150; 289 NW2d 699 (1980). Sometimes referred to as “interpretive rules,” these “are
statements as to what the agency thinks a statute or regulation means; they are statements
issued to advise the public of the agency’s construction of the law it administers.”
Clonlara, Inc v State Bd of Ed, 442 Mich 230, 243-244; 501 NW2d 88 (1993) (quotation
marks and citation omitted). “The ‘pragmatic consequences’ of interpretive ‘rules’ is that
they are published as ‘declaration[s] of the proper interpretation of the law, and those
affected will normally conform, since the regulation provides a practical guide as to how
the office representing the public interest in enforcing the law will apply it.’ ” Id. at 244,
quoting Schwartz, Administrative Law (2d ed), § 4.6, pp 159-160.
3
afforded by the phrase ‘discrimination because of . . . sex’ more restrictively by continuing
to exclude individuals for reasons of their gender identity or sexual orientation, would itself
be discriminatory.” 3 Pursuant to this interpretation of MCL 37.2302(a), the MCRC
through the MDCR has since investigated complaints alleging discrimination on account
of gender identity and sexual orientation.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case involves two acts of alleged sex-based discrimination investigated by the
MDCR pursuant to Interpretive Statement 2018-1. The first involves plaintiff Rouch
World, LLC, which operates an event center in Sturgis, Michigan. In April 2019, Natalie
Johnson and Megan Oswalt approached Rouch World regarding hosting their same-sex
wedding at its facility. Rouch World declined. Its owners, Ben and Jamey Rouch,
explained that hosting and participating in a same-sex wedding ceremony would violate
their sincerely held religious belief that marriage is a sacred act of worship between one
man and one woman. Johnson and Oswalt thereafter filed complaints with the MDCR,
wherein they alleged that Rouch World discriminated against them on the basis of sex in
violation of the ELCRA.
The second alleged act of sex-based discrimination occurred when plaintiff
Uprooted Electrolysis, LLC, denied hair-removal services to Marissa Wolfe, a transgender
woman. Sheri Curtice-Young, the owner of Uprooted Electrolysis, perceived the requested
3
Interpretive Statement 2018-1, p 1, available at (accessed June 23, 2022)
[https://perma.cc/RX8Y-D2K8].
4
services to be centrally connected to Wolfe’s transgender identity and asserted that
delivering these services would violate her sincerely held religious belief that sex is an
immutable gift from God. Wolfe thereafter filed a complaint with the MDCR alleging that
Uprooted Electrolysis had discriminated against her on the basis of sex in violation of the
ELCRA.
Pursuant to the MCRC’s Interpretive Statement 2018-1, the MDCR opened
investigations into both of these incidents. But the investigations were stayed when
plaintiffs jointly sued the MDCR and its then director, seeking declaratory and injunctive
relief. Specifically, plaintiffs sought a declaratory judgment that sexual orientation and
gender identity are not encompassed by the ELCRA’s prohibition of sex discrimination in
places of public accommodation and an injunction prohibiting the continued investigation
of the complaints filed against plaintiffs and the MDCR’s continued adherence to
Interpretive Statement 2018-1.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) 4
regarding the interpretation of the ELCRA, and the Court of Claims denied the motion in
part and granted it in part. Regarding whether sexual orientation is encompassed by the
ELCRA, the Court of Claims determined that it was bound to follow the Court of Appeals
decision in Barbour, 198 Mich App 183. In Barbour, relying largely on then-current
federal precedent regarding analogous provisions of Title VII of the Civil Rights Act of
1964, 42 USC 2000e et seq., the Court of Appeals concluded that the ELCRA’s
4
MCR 2.116(C)(8) provides that a trial court may grant relief to a moving party where
“[t]he opposing party has failed to state a claim on which relief can be granted.”
5
discrimination prohibition did not encompass sexual orientation. Id. at 185.
Acknowledging itself bound by this determination from Barbour, the Court of Claims here
denied defendants’ motion for summary disposition as applied to plaintiff Rouch World’s
arguments.
However, because Barbour did not concern gender-identity discrimination, the
Court of Claims determined that it was not bound by Barbour in regard to plaintiff
Uprooted Electrolysis’s arguments. The Court of Claims considered the issue and
determined that when a person discriminates against “someone who ‘identifies’ with a
gender different than the gender that he or she was born as, then that is dissimilar treatment
on the basis of sex” as prohibited under the ELCRA. In so concluding, the Court of Claims
relied in part on the recent United States Supreme Court decision in Bostock v Clayton Co,
590 US ___, ___; 140 S Ct 1731, 1741; 207 L Ed 2d 218 (2020), wherein the Court held
that an employer violates Title VII when it intentionally fires a person on the basis of their
homosexuality or transgender identity because “it is impossible to discriminate against a
person for being homosexual or transgender without discriminating against that individual
based on sex.” Accordingly, the Court of Claims granted defendants’ motion for summary
disposition as to plaintiff Uprooted Electrolysis’s arguments.
Defendants subsequently filed an interlocutory application for leave to appeal in the
Court of Appeals, challenging the rejection of summary disposition as to plaintiff Rouch
World’s sexual-orientation arguments. Shortly thereafter, defendants filed a bypass
application in this Court. This Court granted the bypass application to address “whether
the prohibition on discrimination ‘because of . . . sex’ in the [ELCRA] applies to
discrimination based on sexual orientation.” Rouch World, LLC v Dep’t of Civil Rights,
6
507 Mich 999, 999 (2021). Notably, plaintiffs did not cross-appeal the Court of Claims’
determination that gender identity is encompassed by the ELCRA—the basis of the
complaint against Uprooted Electrolysis—and so that issue is not currently before this
Court. 5
III. ANALYSIS
We review de novo both the denial of a motion for summary disposition and
questions of statutory interpretation. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999); Eggleston v Bio-Med Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d
139 (2003). When interpreting a statute, this Court’s “primary goal is to ascertain and give
effect to the Legislature’s intent.” Tomecek v Bavas, 482 Mich 484, 495-496; 759 NW2d
178 (2008). “[T]he most reliable evidence of that intent is the plain language of the
statute.” South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental
Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). “If the statute’s language is clear
and unambiguous, we assume that the Legislature intended its plain meaning, and we
5
Whether enforcement under the ELCRA for sexual-orientation and gender-identity
discrimination would violate plaintiffs’ federal and state constitutional religious liberty
protections has not yet been adjudicated below and, accordingly, is also not currently
before this Court.
Further, this appeal arises from plaintiffs’ lawsuit challenging the scope of the
protected class of “sex” under the ELCRA, which was filed in response to the MDCR
investigation into plaintiffs’ alleged denial of a public accommodation. This is not an
appeal from the currently stayed investigations of plaintiffs’ conduct or any enforcement
action that might result from those investigations. Accordingly, the issue before this Court
also does not encompass what the MDCR must prove to demonstrate that discrimination
on the basis of a protected characteristic was the cause of a denial of a public
accommodation or whether the MDCR can carry this burden of proof.
7
enforce the statute as written.” South Haven v Van Buren Co Bd of Comm’rs, 478 Mich
518, 528; 734 NW2d 533 (2007) (quotation marks and citations omitted). However, if the
statute’s language is ambiguous, this Court “may refer to the history of the legislation in
order to determine the underlying intent of the Legislature.” Luttrell v Dep’t of
Corrections, 421 Mich 93, 103; 365 NW2d 74 (1984). This Court must attempt to avoid
any construction that would render portions of a statute surplusage or nugatory. South
Dearborn, 502 Mich at 361. Finally, in interpreting the ELCRA specifically, this Court
has encouraged using as guidance federal precedent interpreting Title VII of the federal
Civil Rights Act, the statute on which the ELCRA was based. 6 See Radtke v Everett, 442
Mich 368, 381; 501 NW2d 155 (1993); Rasheed v Chrysler Corp, 445 Mich 109, 124 n 20;
517 NW2d 19 (1994) (noting that the ELCRA was “clearly modeled” after Title VII).
A. APPLICABLE CASELAW
Today, this Court is asked to determine whether the ELCRA’s prohibition of
discrimination “because of . . . sex,” MCL 37.2302(a), encompasses discrimination based
on sexual orientation. As the Court of Claims recognized, the Court of Appeals previously
answered this question in the negative in Barbour, 198 Mich App 183. In Barbour, the
plaintiff was subject to harassment in his workplace on the basis of his perceived sexual
orientation. Id. at 184. On appeal, the Court of Appeals summarily affirmed the trial
6
The two statutes share similar language. Specifically, Title VII prohibits an employer
from discriminating against an individual “because of such individual’s race, color,
religion, sex, or national origin[.]” 42 USC 2000e-2(a)(1). Compare MCL 37.2302(a)
(prohibiting discrimination in a place of public accommodation or public service “because
of religion, race, color, national origin, age, sex, or marital status”).
8
court’s determination that the ELCRA did not encompass sexual-orientation discrimination
on the basis of federal precedent holding the same with regard to Title VII, i.e., DeSantis v
Pacific Tel & Tel Co, 608 F2d 327 (CA 9, 1979), overruled in part by Nichols v Azteca
Restaurant Enterprises, Inc, 256 F3d 864 (CA 9, 2001); Williamson v A G Edwards &
Sons, Inc, 876 F2d 69 (CA 8, 1989), overruled by Horton v Midwest Geriatric Mgt, 963
F3d 844 (CA 8, 2020); and DeCintio v Westchester Co Med Ctr, 807 F2d 304 (CA 2, 1986).
Barbour, 198 Mich App at 185-186. In those cases, the federal circuits reasoned that
Congress’s intent in enacting Title VII—and specifically, its reference to “sex”—was “to
place women on an equal footing with men,” rather than to regulate discrimination based
on sexual orientation. DeSantis, 608 F2d at 329 (quotation marks and citation omitted).
See also DeCintio, 807 F2d at 306. Barbour adopted the conclusion of these federal
circuits without engaging in its own analysis of the issue under the ELCRA. 7
Barbour, as a published, post-1990 Court of Appeals opinion, has precedential
effect, and the Court of Claims properly recognized below that it was bound by that
decision. MCR 7.215(C)(1) and (J)(1). However, this Court is not so bound, and
developments in the law since Barbour have called into question its validity. Specifically,
since the Court of Appeals decision in Barbour, the cases on which that Court relied were
overturned in Bostock, 590 US ___; 140 S Ct 1731. In Bostock, the United States Supreme
Court considered whether the employee plaintiffs terminated for their sexual orientation or
7
Barbour also did not consider whether a later United States Supreme Court decision—
Price Waterhouse v Hopkins, 490 US 228; 109 S Ct 1775; 104 L Ed 2d 268 (1989) (opinion
of Brennan, J.; superseded by statute on other grounds), which held that sex stereotyping
falls under Title VII’s prohibition of sex discrimination—undermined the analysis
employed by the DeSantis and DeCintio courts.
9
gender identity brought cognizable claims of unlawful discrimination under Title VII. 8 Id.at ___; 140 S Ct at 1737-1738. Specifically at issue was whether discrimination based on
sexual orientation or gender identity is encompassed by Title VII’s prohibition of employee
discharge “because of such individual’s . . . sex.” Id. at ___; 140 S Ct at 1738.
To begin, the majority examined three distinct portions of the statutory text at hand:
the term “sex,” the phrase “because of,” and the provision’s subsequent catchall phrase “or
otherwise to discriminate.” With regard to defining the term “sex,” the employers proposed
a definition of “sex” as “status as either male or female [as] determined by reproductive
biology,” as the term allegedly would have been understood by Congress in 1964 when
Title VII was enacted. Id. at ___; 140 S Ct at 1739. The employees, on the other hand,
argued for a broader definition of the term “sex” that encompassed “at least some norms
concerning gender identity and sexual orientation.” Id. However, “[b]ecause nothing in
[the majority’s] approach to these cases turn[ed] on the outcome of the parties’ debate, and
because the employees concede[d] the point for argument’s sake,” the majority proceeded
8
Bostock consolidated three separate Title VII claims. First, Gerald Bostock, a longtime
child welfare advocate for Clayton County, Georgia, was terminated for conduct
unbecoming a county employee shortly after he began participating in a gay softball league
and after community members made disparaging comments about his involvement in the
league and his sexual orientation. Id. at ___; 140 S Ct at 1737-1738. Second, Donald
Zarda, who had worked for several seasons as a skydiving instructor at Altitude Express in
New York, was terminated days after mentioning that he was gay. Id. at ___; 140 S Ct at
1738. Finally, Aimee Stephens was terminated after informing her employer, R.G. & G.R.
Harris Funeral Homes in Garden City, Michigan, that she intended to “live and work full-
time as a woman” upon her return from an upcoming vacation. Id. Stephens had initially
presented as male when she began work with Harris Funeral Homes six years earlier. Id.
10
on the assumption that “sex” referred “only to biological distinctions between male and
female.” Id.
Next, the majority considered the operative phrase of the statute—“because of.”
The majority noted that it had previously defined this phrase as meaning “by reason of” or
“on account of” and as establishing a but-for standard of causation. Id. (quotation marks
and citation omitted). Under this standard, “causation is established whenever a particular
outcome would not have happened ‘but for’ the purported cause.” Id. The majority
acknowledged the breadth of this standard, as multiple but-for causes may exist for any
single event, but noted that Congress had chosen this specific language rather than the more
limiting language it had used for causation in other statutes. Id. Accordingly, this chosen
causation standard would prevent an employer from avoiding liability for discriminatory
action by merely citing some other, nondiscriminatory factor that contributed to the
employment action. Id.
The majority next assessed the catchall phrase “or otherwise . . . discriminate
against,” which appears at the conclusion of the statute’s list of prohibited actions. Id. at
___; 140 S Ct at 1740. The employers argued that the inclusion of this phrase meant that
Title VII prohibits employee discharge only when it involves both a protected characteristic
and discrimination. Id. The majority again accepted this premise for argument’s sake and
went on to define “discrimination” as “treating that individual worse than others who are
similarly situated.” Id. In so doing, the majority specifically eschewed a definition of
discrimination that would require a group-focused analysis that compares the employer’s
differential treatment of employees grouped by protected characteristic rather than
individual employees themselves. Id. The eschewed perspective was seen as inconsistent
11
with Title VII’s repeated references to “individuals” rather than groups—i.e., “ ‘discharge
any individual,’ ” “ ‘otherwise . . . discriminate against any individual,’ ” and “ ‘because
of such individual’s’ ” protected characteristic. Id., quoting 42 USC 2000e-2(a)(1)
(emphasis added). Given that individual focus, the majority concluded that the relevant
inquiry under Title VII is whether the specific employee was treated differently, not
whether the employer treats different groups of persons differently. Bostock, 590 US at
___; 140 S Ct at 1740.
From these textual assessments, the majority deduced that “[a]n employer violates
Title VII when it intentionally fires an individual employee based in part on sex.” Id. at
___; 140 S Ct at 1741. Applying this principle to discrimination on the basis of sexual
orientation and gender identity, the majority concluded:
[I]t is impossible to discriminate against a person for being homosexual or
transgender without discriminating against that individual based on sex.
Consider, for example, an employer with two employees, both of whom are
attracted to men. The two individuals are, to the employer’s mind, materially
identical in all respects, except that one is a man and the other a woman. If
the employer fires the male employee for no reason other than the fact he is
attracted to men, the employer discriminates against him for traits or actions
it tolerates in his female colleague. Put differently, the employer
intentionally singles out an employee to fire based in part on the employee’s
sex, and the affected employee’s sex is a but-for cause of his discharge. Or
take an employer who fires a transgender person who was identified as a
male at birth but who now identifies as a female. If the employer retains an
otherwise identical employee who was identified as female at birth, the
employer intentionally penalizes a person identified as a male at birth for
traits or actions that it tolerates in an employee identified as female at birth.
Again, the individual employee’s sex plays an unmistakable and
impermissible role in the discharge decision. [Id. at ___; 140 S Ct at 1741-
1742.]
12
In sum, the majority held that discrimination based on sexual orientation or gender identity
is necessarily encompassed within discrimination because of sex. See id.
The majority further acknowledged that when discrimination on the basis of sexual
orientation is at issue, there may be two contributing factors to that discrimination: the
individual’s sex and the sex to which that individual is attracted. Id. at ___; 140 S Ct at
1742. But the fact that the individual’s sex is one of the causes of the discrimination—that
“but for” the individual’s sex, the action would not have occurred—is sufficient to satisfy
Title VII; the existence of an additional but-for cause does not eliminate liability. Id.
Similarly, the fact that the employer may have intended to discriminate on the basis of
sexual orientation but not sex does not evade liability because “an employer who
discriminates on th[is] ground[] inescapably intends to rely on sex in its decisionmaking”
because sexual orientation is “inextricably bound up with sex.” Id. Finally, the majority
also rejected the premise that an employer’s willingness to discriminate against both male
and female employees on the basis of sexual orientation removed Title VII liability. Id.
Because Title VII requires an individual-based analysis rather than a group-based analysis,
its liability is not limited to only employers who treat different groups of employees
differently. Id. Accordingly, discriminating against individuals of different protected
characteristic groups similarly “doubles rather than eliminates Title VII liability.” Id. at
___; 140 S Ct at 1742-1743.
Bostock was not a unanimous opinion; Justices Alito, Thomas, and Kavanaugh
dissented. The dissenting justices argued that the majority had usurped the authority of
Congress by essentially rewriting Title VII to encompass discrimination based on sexual
orientation and gender identity. Id. at ___; 140 S Ct at 1754-1755 (Alito, J., dissenting);
13
id. at ___; 140 S Ct at 1822 (Kavanaugh, J., dissenting). They reasoned that, had Congress
intended for sexual orientation and gender identity to be protected by Title VII, it would
have used those terms specifically when it enacted the statute. Id. at ___; 140 S Ct at 1829-
1830 (Kavanaugh, J., dissenting). Instead, however, Congress used the term “sex,” which
they opined was nearly universally understood in 1964 to refer to biological or anatomical
distinctions between male and female and would not have been expected to include sexual
orientation or gender identity. Id. at ___, ___; 140 S Ct at 1767, 1772 (Alito, J., dissenting).
Further, the dissenting justices noted that repeated attempts to amend Title VII to include
the specific terms sexual orientation and gender identity had proved unsuccessful. Id. at
___; 140 S Ct at 1777-1778 (ALITO, J., dissenting); id. at ___; 140 S Ct at 1823-1824
(Kavanaugh, J., dissenting). Finally, the dissenting justices challenged the majority’s
conclusion that discrimination based on sexual orientation and gender identity necessarily
entails discrimination based on sex, arguing that sex is distinct from these concepts and
that employers who discriminate on the basis of sexual orientation and gender identity may
not necessarily intend to discriminate on the basis of sex. Id. at ___; 140 S Ct at 1758-
1760 (Alito, J., dissenting); id. at ___; 140 S Ct at 1828-1829 (Kavanagh, J., dissenting).
In response, the majority reiterated its position that although sexual orientation and
gender identity are distinct concepts from sex, discrimination on the basis of the former
two concepts necessarily entails discrimination on the basis of the latter. Id. at ___; 140 S
Ct at 1747 (majority opinion). Accordingly, the majority asserted that it was not redefining
“sex” to include sexual orientation and gender identity but instead finding that the concepts
are inextricably linked. Id. That Congress may not have anticipated this exact application
of Title VII’s prohibition of discrimination on the basis of sex does not prevent that
14
application of unambiguous statutory text. 9 Id. at ___, ___; 140 S Ct at 1747, 1750-1751.
Demonstrating this principle in exercise, the majority referred to its decision in
Pennsylvania Dep’t of Corrections v Yeskey, 524 US 206, 208; 118 S Ct 1952; 141 L Ed
2d 215 (1998), wherein it determined that the directive in the Americans with Disabilities
Act (the ADA) that prohibits public entities from discrimination against disabled
individuals applied to prisons, despite Pennsylvania’s argument that Congress had not
predicted that the ADA would apply to prisoners with disabilities when it enacted the ADA.
Id. at ___; 140 S Ct at 1751. See also id. at ___, ___; 140 S Ct at 1747, 1752 (noting with
regard to Title VII specifically that its accepted but likely unanticipated applications
include sexual harassment and motherhood discrimination). The majority explained that
the application of protective legislation to politically unpopular groups may not have been
foreseen by the specific enacting Congress, but refusing to apply a statute on this ground
“would not only require us to abandon our role as interpreters of statutes; it would tilt the
scales of justice in favor of the strong or popular and neglect the promise that all persons
are entitled to the benefit of the law’s terms.” Id. at ___; 140 S Ct at 1751. Further, to the
extent that the dissenting justices argued that Congress’s failure to enact amendments to
Title VII that would specifically include sexual orientation and gender identity was
probative of Congress’s intent that “sex” did not include these concepts, the majority noted
9
The majority also expressed skepticism regarding whether this assertion was true, noting
that discrimination claims related to sexual orientation and gender identity were filed
nearly immediately after Title VII’s passage and that there was public discourse within 10
years of Title VII’s passage regarding whether the analogous language of the proposed
Equal Rights Amendment would afford protections to homosexual persons. Id. at ___; 140
S Ct at 1750-1751.
15
that “no authoritative evidence” exists explaining why Congress failed to adopt such
amendments here. Id. at ___; 140 S Ct at 1747. 10 Without such evidence, only speculation
remains, and “speculation about why a later Congress declined to adopt new legislation
offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law
a different and earlier Congress did adopt.” Id., quoting Pension Benefit Guaranty Corp v
LTV Corp, 496 US 633, 650; 110 S Ct 2668; 110 L Ed 2d 579 (1990).
In sum, Bostock held that Title VII’s prohibition of employee discharge “because of
such individual’s . . . sex” necessarily encompasses discriminatory employer action on the
basis of sexual orientation and gender identity. In so holding, Bostock overruled lower
federal precedent that had previously held to the contrary, including DeSantis, Williamson,
and DeCintio—the cases on which the Michigan Court of Appeals relied in Barbour.
B. ELCRA ANALYSIS
Given Barbour’s limited independent analysis and the overruling of the federal
precedent it relied on in Bostock, as well as the new rule of federal law adopted in Bostock,
we find it appropriate to now consider whether the ELCRA encompasses discrimination
on the basis of sexual orientation.
10
The majority provided multiple reasons why subsequent Congresses might have failed
to enact such amendments:
Maybe some in the later legislatures understood the impact Title VII’s broad
language already promised for cases like ours and didn’t think a revision
needed. Maybe others knew about its impact but hoped no one else would
notice. Maybe still others, occupied by other concerns, didn’t consider the
issue at all. [Id.]
16
Section 302 of the ELCRA prohibits the denial of “the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service because of . . . sex . . . .” MCL 37.2302(a). This
Court has previously held that the operative phrase “because of” in the ELCRA establishes
a but-for causation standard. Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 606;
886 NW2d 135 (2016). See also The American Heritage Dictionary of the English
Language (5th ed) (defining “because of” as “[o]n account of; by reason of”). Under this
standard, causation is satisfied where sex is “a determining factor” in the discriminatory
action. Matras v Amoco Oil Co, 424 Mich 675, 682-683; 385 NW2d 586 (1986). In other
words, causation is established where the discriminatory action would not have occurred
but for the sex of the complainant. See id. See also Radtke, 442 Mich at 379 (“[T]he
essence of a sex discrimination civil rights suit is that similarly situated people have been
treated differently because of their sex.”). Accordingly, we must answer here whether
complainants who were denied service because of their sexual orientation would not have
been so denied but for their sex.
Like its federal counterpart, the ELCRA does not define the term “sex.” 11 Drawing
from contemporary and historical dictionaries, the parties and amici propose varying
definitions of the term “sex” and encourage this Court to affirmatively endorse one
definition or another. Plaintiff Rouch World and certain amici propose a narrower
11
The ELCRA does specify that “[d]iscrimination because of sex includes sexual
harassment,” MCL 37.2103(i), and that the term “sex” “includes, but is not limited to,
pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does
not include nontherapeutic abortion not intended to save the life of the mother,” MCL
37.2201(d). But neither of these provisions offers an exclusive definition of the term “sex.”
17
definition of “sex” that defines the word as “whether one is a biological male or biological
female”; but defendants and other amici propose a more expansive definition that
incorporates physiological, structural, and behavioral characteristics. However, like our
counterparts at the United States Supreme Court, we conclude that choosing between these
definitions is not necessary here because the result of our textual analysis is the same
regardless of whether we adopt a narrower or more expansive definition of the term “sex.”
Accordingly, for the sake of argument, we use but do not affirmatively rule in favor of the
more restrictive definition.
Using this more restrictive definition of the term “sex” and applying the but-for
causation standard to the provision at hand, we conclude that discrimination on the basis
of sexual orientation necessarily involves discrimination because of sex in violation of the
ELCRA. In so doing, we find persuasive Bostock’s application of Title VII’s but-for
standard. While we are encouraged but not bound to consider persuasive Title VII federal
caselaw, Radtke, 442 Mich at 381-382, we find that Bostock offers a straightforward
analysis of the plain meaning of analogous statutory language and we agree with its
reasoning. 12 A discriminator’s choice to “[d]eny an individual the full and equal enjoyment
12
Plaintiff Rouch World emphasizes that this Court is not bound to interpret the ELCRA
in the same manner as the United States Supreme Court has interpreted Title VII, and that
this Court has, in fact, previously criticized such reliance. For example, in Haynie v Dep’t
of State Police, 468 Mich 302, 320; 664 NW2d 129 (2003), this Court applied the
ELCRA’s prohibition of sexual harassment differently than United States Supreme Court
precedent regarding the prohibition of sexual harassment under Title VII. In so doing, this
Court opined that “[w]e cannot agree that any time the Michigan Legislature creates a law
that is ‘similar’ to a federal law, it must be made identical, and the two laws must be
interpreted to mean exactly the same thing.” Id. We further recognized that “the Michigan
Legislature is allowed to determine for itself the extent to which it wishes to track the
language of the federal law” and that differences between the statutory language may
18
of the goods, services, facilities, privileges, advantages, or accommodations,” on the basis
of that individual’s sexual orientation is action that is dependent upon the individual’s sex
under MCL 37.2302(a). Sexual orientation is “inextricably bound up with sex,” because a
person’s sexual orientation is generally determined by reference to their own sex. Bostock,
590 US at ___; 140 S Ct at 1742. For example, attraction to females in a fellow female is
considered homosexual, while the same trait in a male is considered heterosexual; the sex
of the individual at issue is necessary to determine their sexual orientation. To discriminate
on the basis of sexual orientation, then, also requires the discriminator to intentionally treat
individuals differently because of their sex. 13
counsel against applying Title VII precedent to our state law. Id. As applied in Haynie,
the fact that the ELCRA specifically provides a statutory definition of sexual harassment
merited a divergence from federal precedent concerning Title VII, whose prohibition of
sexual harassment is derived from its general prohibition of sex discrimination. Id. at
321-322.
Our agreement with Bostock today is not at odds with Haynie or Haynie’s criticism
of blindly applying federal caselaw to state statutory provisions. Unlike the statutory
language at issue in Haynie, the Michigan Legislature here chose to enact language nearly
identical to that in Title VII. Compare 42 USC 2000e-2(a)(1) (prohibiting an employer
from discriminating against an individual “because of such individual’s race, color,
religion, sex, or national origin”) with MCL 37.2302(a) (prohibiting discrimination in a
place of public accommodation “because of religion, race, color, national origin, age, sex,
or marital status”). To the extent that the ELCRA encompasses more activity than Title
VII in that it applies to discrimination in public accommodations generally rather than
solely in employment, nothing about this breadth of application changes the meaning of
the operative words “because of . . . sex” that are found in both statutes. The Michigan
Legislature’s choice to use the language of Title VII counsels in favor of the persuasive
value of that caselaw, and, as expressed earlier, we find this caselaw consistent with our
own plain-language interpretation of the ELCRA.
13
Moreover, discrimination on the basis of sexual orientation also necessarily entails
discrimination on the basis of sexual stereotypes. As the United States Court of Appeals
for the Second Circuit explained, “stereotypes about homosexuality are directly related to
our stereotypes about the proper roles of men and women. . . . The gender stereotype at
19
Here, plaintiff Rouch World denied female complainant Johnson’s request for
services related to her wedding with female complainant Oswalt. Had Johnson instead
been a male, Rouch World would not have denied its services. In other words, but for
Johnson’s sex, Rouch World would have rendered its services to Johnson. Although Rouch
World’s motivation for its denial of services was based on Johnson’s sexual orientation, it
is nevertheless true that, holding all other facts constant (including the sex of the romantic
work here is that ‘real’ men should date women, and not other men[.]” Zarda v Altitude
Express, Inc, 883 F3d 100, 121 (CA 2, 2018) (quotation marks and citation omitted). See
also Equal Employment Opportunity Comm v R G & G R Harris Funeral Homes, 884 F3d
560, 576 (CA 6, 2018); Hively, 853 F3d at 346-347 (noting that homosexual women
“represent[] the ultimate case of failure to conform to the female stereotype (at least as
understood in a place such as modern America, which views heterosexuality as the norm
and other forms of sexuality as exceptional): [they are] not heterosexual”). Accordingly,
discrimination on the basis of sexual orientation signals that individuals who transgress
stereotypes associated with their sex are not welcome in the public square. In a plurality
opinion, the United States Supreme Court recognized that this type of discrimination also
runs afoul of Title VII, reasoning that
we are beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated with their
group, for “ ‘[i]n forbidding employers to discriminate against individuals
because of their sex, Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex stereotypes.’ ”
[Price Waterhouse, 490 US at 251, quoting Los Angeles Dep’t of Water &
Power v Manhart, 435 US 702, 707 & n 13; 98 S Ct 1370; 55 L Ed 2d 657(1978) (citation omitted).]
Various federal courts have since followed Price Waterhouse in recognizing that sex
discrimination occurs when an employee suffers an adverse employment action because
they defy the socially constructed gender norms. See, e.g., R G & G R Harris Funeral
Homes, 884 F3d at 576; Zarda, 883 F3d at 120-121; Hively, 853 F3d at 347.
In considering this line of federal caselaw as applied to Michigan’s ELCRA, we
agree that discrimination on the basis of sexual orientation necessarily involves
discrimination on the basis of sexual stereotypes, and we believe that this theory could
serve as an alternate basis for holding that sex discrimination occurred in this case.
20
partner involved), Rouch World discriminated against Johnson because of her sex. 14
Where the discriminator tolerates certain characteristics in one sex but not the other,
discrimination on the basis of sex has occurred. Id. at ___; 140 S Ct at 1737 (“An employer
who fires an individual for being homosexual or transgender fires that person for traits or
actions it would not have questioned in members of a different sex.”). In sum, a person’s
sexual orientation necessarily implies conclusions about their sex, and so “it is impossible
to discriminate against a person” for their sexual orientation “without discriminating
against that individual based on sex.” Id. at ___; 140 S Ct at 1741. 15
Plaintiff Rouch World disputes this conclusion, arguing that sex discrimination is
not a necessary consequence of discrimination based on sexual orientation. It posits that a
person or corporation could enact a blanket policy refusing services to persons of a
14
In dissent, Justice VIVIANO argues that there are actually three factors at hand in this but-
for analysis. In addition to sex and sex preference, he argues that sexual orientation is a
third relevant fact. According to this approach, our but-for analysis changes both sex and
sexual orientation rather than one single factor. This approach ignores that sexual
orientation in this context is simply a helpful shorthand for the combination of sex and sex
preference; it is not an independent factor. The but-for test cannot, and should not, be
evaded through reference to a third, dependent variable that necessarily changes when the
protected characteristic also changes.
15
We note that our conclusion would not change were the sexual orientation at issue
bisexual rather than homosexual. A discriminator cannot escape liability for sex
discrimination on the basis that the individual discriminated against has a sexual orientation
that the discriminator does find acceptable in addition to the sexual orientation that the
discriminator does not find acceptable. For example, had the complainant in the present
case been bisexual rather than homosexual, plaintiff Rouch World’s denial of services
would still constitute sex discrimination because it would be based in a trait—sexual
attraction to women—that would have been accepted had the hypothetical complainant
been a bisexual or heterosexual man. That one form of expression of the hypothetical
complainant’s sexual orientation would have been acceptable to the discriminator in each
scenario is of no legal consequence.
21
particular sexual orientation without considering sex at all. Said policy would apply to all
persons of that sexual orientation, regardless of whether they are male or female. But this
assertion ignores the interdependent relationship between sexual orientation and sex. As
the United States Supreme Court explained:
[Even if] an employer asked homosexual or transgender applicants to tick a
box on its application form, . . . the individual applicant’s sex [would] still
weigh[] as a factor in the employer’s decision. . . .
. . . There is no way for an applicant to decide whether to check the
homosexual or transgender box without considering sex. To see why,
imagine an applicant doesn’t know what the words homosexual or
transgender mean. Then try writing out instructions for who should check
the box without using the words, man, woman, or sex (or some synonym). It
can’t be done. Likewise, there is no way an employer can discriminate
against those who check the homosexual or transgender box without
discriminating in part because of an applicant’s sex. By discriminating
against homosexuals, the employer intentionally penalizes men for being
attracted to men and women for being attracted to women. . . . Any way you
slice it, the employer intentionally refuses to hire applicants in part because
of the affected individual’s sex . . . . [Id. at 1746.]
See also Hively v Ivy Tech Community College of Indiana, 853 F3d 339, 350 (CA 7, 2017)
(“It would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ”).
Because one’s sex is necessary to the identification of sexual orientation, discrimination
on that basis is discrimination on the basis of sex. Incorporating an additional
consideration—such as the sex preference of that individual—and retitling that pair of
considerations does not remove the effect of sex from the equation. See Bostock, 590 US
at ___; 140 S Ct at 1741 (“It doesn’t matter if other factors besides the plaintiff’s sex
contributed to the decision.”). In other words, the determination of sexual orientation
involves both the sex of the individual and the sex of their preferred partner; referring to
these considerations jointly as “sexual orientation” does not remove sex from the
22
calculation. 16 Were this Court to follow the approach proposed by Rouch World and
adopted by Justice ZAHRA in dissent, any individual “would be able to rebut a
discrimination claim by merely characterizing their action using alternative terminology.”
Zarda v Altitude Express, Inc, 883 F3d 100, 114 (CA 2, 2018). 17
16
Justice ZAHRA’s assertion that “sex” and “sexual orientation” are not equivalent terms is
correct, but irrelevant to the analysis. The narrow reading of “sex” that his dissent offers
fails to recognize that when Rouch World discriminates against a person “because she is
(A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an
enumerated trait: the employee’s sex.” Hively, 853 F3d at 359 (Flaum, J., concurring).
“Sexual orientation” does not have to be synonymous with “sex” for the discrimination to
be, inherently, sex-based.
17
Justice VIVIANO agrees that a blanket policy of sexual-orientation discrimination would
not run afoul of the ELCRA’s prohibition of sex discrimination. He reasons, in part, that
the but-for causation standard, as it has been applied in the context of the ELCRA, contains
some requirement of a showing of motivation or intent to discriminate on the basis of the
protected characteristic at hand. And because the discriminator in this scenario intends to
discriminate regarding the individual’s sexual orientation and not their sex, the but-for
causation standard is not met.
We do not, and need not, take a position on Justice VIVIANO’s assertion that the but-
for causation standard requires some proof of intent to discriminate. The only issue before
this Court is whether discrimination on the basis of sexual orientation is included within
the ELCRA’s prohibition of discrimination because of sex. This is the first step in any
discrimination analysis under the ELCRA. See, e.g., Haynes v Neshewat, 477 Mich 29,
35; 729 NW2d 488 (2007) (holding that “[i]n order to state a claim under MCL 37.2302(a),
[a] plaintiff must establish four elements: (1) discrimination based on a protected
characteristic (2) by a person, (3) resulting in the denial of the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations (4) of a place of
public accommodation”); Hazle v Ford Motor Co, 464 Mich 456, 463; 628 NW2d 515
(2001) (holding that in the employment context, to establish a prima facie case of
discrimination a complainant must “present evidence that (1) she belongs to a protected
class, (2) she suffered an adverse employment action, (3) she was qualified for the position,
and (4) the job was given to another person under circumstances giving rise to an inference
of unlawful discrimination”). Our opinion should not be read as altering precedent
governing subsequent steps in a discrimination analysis, such as what evidence is necessary
23
Further, plaintiff Rouch World’s approach would also apply a group-based analysis
to the ELCRA that is not supported by its text. Recall that MCL 37.2302(a) prohibits a
person or corporation from “[d]eny[ing] an individual the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations” of certain places
and services. (Emphasis added.) By using the term “individual” rather than “group,” the
ELCRA penalizes discriminatory action as applied to individuals, eschewing an analysis
that looks instead to the differential treatment of groups. See Bostock, 590 US at ___; 140
S Ct at 1740-1741. The ELCRA’s prohibition of sex discrimination requires a
determination whether a specific individual was treated worse than a member of the
opposite sex would have been; it does not ask how one sex-based group is treated as
compared to another sex-based group. It is, therefore, no defense for a discriminator “to
say it discriminates against both men and women because of sex”—instead, this practice
doubles rather than dissolves liability because the ELCRA’s focus is on individuals rather
than groups. Id. at ___; 140 S Ct at 1741 (“This statute works to protect individuals of
to prove causation in an enforcement action brought under the ELCRA, and it is unclear
why the dissent believes we have done so.
Even if such an intent requirement existed, it would likely be met here given the
facts that plaintiffs alleged in their complaint. As discussed earlier, sex is an intrinsic
component of sexual orientation. Accordingly, an individual’s intent to discriminate on
the basis of sexual orientation is sufficient to fulfill any requirement that the individual
intended to discriminate on the basis of sex. In the present case, Rouch World asserts that
it denied services to the complainants on the basis of their homosexuality. Because sexual
orientation is intrinsically linked to sex, this action constitutes sex discrimination. Further,
the discriminatory intent evidenced by Rouch World is sufficient to satisfy any
motivational requirement possibly encompassed by the but-for causation standard.
24
both sexes from discrimination, and does so equally.”). 18 Were a business to discriminate
against both a homosexual male and a homosexual female, the business would be subject
to liability under the ELCRA for both because in both cases the business discriminated
against the individual for traits it otherwise would have tolerated in a different sex. See id.
Plaintiff Rouch World, along with the dissent, also criticizes this conclusion as
inconsistent with the intent of the 1976 Legislature that enacted the ELCRA. It argues that
the ELCRA’s legislative history demonstrates that the Legislature intentionally chose to
exclude protections from discrimination based on sexual orientation, both at the time of its
enactment by declining to include the specific language and repeatedly thereafter by
rejecting proposed amendments that would have added the specific language. However,
the legislative history of a statute is relevant to the statute’s meaning only where the statute
is ambiguous. See Luttrell v Dep’t of Corrections, 421 Mich 93, 103; 365 NW2d 74 (1984).
When the statute’s language is clear, as it is here, we rely on that plain language as the best
evidence of its meaning. Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d
275 (2004). 19 Further, Rouch World’s assertion that the 1976 Legislature that enacted
18
Our courts have rejected a similar argument made in the context of applying the
ELCRA’s prohibition of race discrimination to interracial associations. Specifically, the
Court of Appeals rejected an employer’s argument that its blanket policy prohibiting
interracial marriage did not violate the ELCRA because it discriminated equally against
employees of all races. See Bryant v Automatic Data Processing, Inc, 151 Mich App 424,
430; 390 NW2d 732 (1986) (“If an employer discriminates against a white (or black)
employee because of the latter’s marriage to a black (or white) spouse, the race of both the
employee and the spouse is a motivating factor. Thus, it must be concluded that the
employee in such a case is discriminated against ‘because of race’ . . . .”). See also Graham
v Ford, 237 Mich App 670, 677-678; 604 NW2d 713 (1999) (applying Bryant).
19
Even if the rules of construction encouraged consideration of legislative history under
the present circumstances, there are often practical difficulties with discerning legislative
25
intent from legislative history, and those difficulties abound here. Examination of
legislative history is necessarily difficult, as “dozens if not hundreds of legislators have
their own subjective views on the minutiae of bills they are voting on—or perhaps no views
at all because they are wholly unaware of the minutiae.” Scalia & Garner, Reading Law:
The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 392. Discerning a
single intent from these hundreds of subjective views is difficult, and Rouch World’s and
amici’s offering of news articles reflecting the opinions of single legislators does little to
ease that difficulty. Even sources like bill analyses, committee reports, and floor debate,
which may reflect the views of some group of legislators, are of dubious value. See id. at
376 (noting that floor statements can be delivered to small or no amount of other legislators
and that committee reports are drafted by committee staff and not legislators); In re
Certified Question from the US Court of Appeals for the Sixth Circuit, 468 Mich 109, 115
n 5; 659 NW2d 597 (2003) (specifically critiquing legislative analyses on the grounds that
“(1) such analyses are not an official form of legislative record in Michigan, (2) such
analyses do not purport to represent the views of legislators, individually or collectively,
but merely to set forth the views of professional staff offices situated within the legislative
branch, and (3) such analyses are produced outside the boundaries of the legislative process
as defined in the Michigan Constitution”).
As noted earlier, there are any number of potential explanations why sexual
orientation was not explicitly included in the ELCRA in 1976. Perhaps some legislators
believed that sexual-orientation discrimination was necessarily included through the
prohibition on sex discrimination and so did not seek its explicit inclusion. Perhaps other
legislators believed the opposite. Or perhaps, as plaintiff and some amici also argue, the
Legislature did not anticipate that the ELCRA could or would be applied in this manner.
See Bostock, 590 US at ___; 140 S Ct at 1750-1751. The legislative history is more unclear
than Rouch World represents.
As for subsequent legislatures that considered but did not adopt proposed
amendments that would add sexual orientation explicitly, “the views of a subsequent
Congress form a hazardous basis for inferring the intent of an earlier one.” United States
v Price, 361 US 304, 313; 80 S Ct 326; 4 L Ed 2d 334 (1960). The rejection of subsequent
proposed amendments runs into the same difficulties expressed earlier with regard to the
statute’s initial enactment: there are any number of reasons supporting the rejection of
amendments, and the legislative history generally fails to provide a cogent, entity-wide
reasoning for that action. See Bostock, 590 US at ___; 140 S Ct at 1747. Further, the
amendments proposed do not appear to have been brought before the entirety of the
Legislature, and so it is especially dubious that their rejection represents rejection by the
Legislature as a whole. See In re Certified Question, 468 Mich at 115 n 5.
Again, given the lack of ambiguity in the statute’s language, this Court need not and
should not attempt to decipher the statute’s meaning from this varied and enigmatic
26
ELCRA would not have foreseen the application of its prohibition on discrimination
“because of . . . sex” to sexual orientation does not render the statute ambiguous. As
recognized by the United States Supreme Court, “statutory prohibitions often go beyond
the principal evil to cover reasonably comparable evils, and it is ultimately the provisions
of our laws rather than the principal concerns of our legislators by which we are governed.”
Oncale v Sundowner Offshore Servs, Inc, 523 US 75, 79; 118 S Ct 998; 140 L Ed 2d 201(1998). So while the principal evil motivating the 1976 Legislature to prohibit
discrimination on the basis of sex may have been the preferential treatment of males to the
detriment of females, this motivation does not curtail other applications of the plain
statutory language. See Bostock, 590 US at ___; 140 S Ct at 1747 (“Title VII prohibits all
forms of discrimination because of sex, however they may manifest themselves or
whatever other labels might attach to them.”). Notably, both the ELCRA and Title VII
have been applied to circumstances likely unanticipated by the enacting Legislature,
including pregnancy discrimination, sex-stereotyping cases, same-sex sexual harassment,
and retirement accounts. See, e.g., Robinson v Ford Motor Co, 277 Mich App 146, 153;
744 NW2d 363 (2007) (allowing liability under the ELCRA for same-sex hostile-work-
environment claims); Price Waterhouse v Hopkins, 490 US 228, 256; 109 S Ct 1775; 104
L Ed 2d 268 (1989) (opinion of Brennan, J.; superseded by statute on other grounds)
(allowing liability under Title VII because the employer’s actions “were motivated by
stereotypical notions about women’s proper deportment”); Los Angeles Dep’t of Water &
legislative history. See id. (“Legislative history cannot be used to create an ambiguity
where one does not otherwise exist.”).
27
Power v Manhart, 435 US 702; 98 S Ct 1370; 55 L Ed 2d 657 (1978) (allowing liability
under Title VII for requiring women to make larger pension fund contributions because of
their statistically greater longevity). Again, the Legislature’s failure to foresee particular
statutory applications does not prohibit these applications so long as they are consistent
with the plain language of the statute. 20
Should the Legislature disapprove of an application of a statute’s enacted language,
the Legislature remains free to amend the statute. This Court, however, is bound by the
language that the Legislature has enacted, not what the parties or amici believe the
Legislature should have enacted or what any individual representative believed was
enacted. See Oncale, 523 US at 79.
20
In dissent, Justice ZAHRA argues that this concept does not apply here because this
opinion “reads into the ELCRA something that the Legislature expressly considered but
rejected . . . .” Post at 20 n 51. In support of this assertion, Justice ZAHRA notes that the
Civil Rights Committee held a roll-call vote on whether to include sexual orientation in the
ELCRA and that the Committee declined to do so by a 5 to 3 vote. He further notes that,
on the day the bill was scheduled to be voted out of committee, the committee room was
filled with advocates protesting the bill’s failure to include an explicit prohibition of sexual-
orientation discrimination. But these observations do not demonstrate the intent of the
Legislature as a whole. At best, they establish that eight legislators were aware of the bill’s
failure to include sexual-orientation discrimination specifically and that a majority of those
legislators approved of this lack of inclusion. This does not necessarily establish that this
majority intended and understood that the ELCRA would not protect against sexual-
orientation discrimination—as described earlier, some legislators may have believed it was
already included through the prohibition on sex discrimination. And even if the legislative
history did establish that, it cannot do the same for the remainder of the more than one
hundred other legislators that ultimately voted on the ELCRA. See Reading Law, p 392.
Unlike other cases wherein we have found legislative history to be relevant to the
Legislature’s intent, the legislative history here does not include changes or alternatives
contemplated by the entirety or even the majority of the Legislature. See, e.g., In re MCI
Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999).
28
IV. CONCLUSION
Discrimination on the basis of sexual orientation necessarily constitutes
discrimination because of sex. Accordingly, the denial of “the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service” on the basis of sexual orientation constitutes
discrimination “because of . . . sex” and, therefore, constitutes a violation of the ELCRA
under MCL 37.2302(a). We reverse the Court of Claims’ decision to the contrary and
remand this case for further proceedings consistent with this opinion.
Elizabeth T. Clement
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
29
STATE OF MICHIGAN
SUPREME COURT
ROUCH WORLD, LLC, and UPROOTED
ELECTROLYSIS, LLC,
Plaintiffs-Appellees,
v No. 162482
DEPARTMENT OF CIVIL RIGHTS and
DIRECTOR OF THE DEPARTMENT OF
CIVIL RIGHTS,
Defendants-Appellants.
ZAHRA, J. (dissenting).
The Court’s majority opinion is a victory for a good many Michiganders who
worked diligently and unyieldingly for sexual-orientation equality under the law since the
enactment of the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq., more
than 45 years ago. 1 I take no issue with the merits of the policy adopted today by a majority
of this Court. I also harbor no doubt that my colleagues in the majority are acting in good
faith, with pure hearts and the best of intentions.
Yet under the Michigan Constitution, the Legislature—or the people through the
exercise of direct democracy—bears the ultimate responsibility to write, amend, or repeal
1
The ELCRA was drafted, introduced, voted out of both houses of our Legislature, and
signed by the Governor in Michigan’s 78th legislative session (1975–1976). The ELCRA
became effective in 1977, at the expiration of 90 days after the Legislature adjourned sine
die. See Const 1963, art 4, § 27.
the laws of this state. 2 And this Court’s duty is to say what the law is, not what it thinks
the law ought to be. 3 But this is exactly what a majority of this Court has done here. The
majority opinion declares that the ELCRA’s prohibition of discrimination “because
of . . . sex” precludes discrimination because of sexual orientation—an interpretation that
eluded the Legislature, the courts, the Michigan Civil Rights Commission (the MCRC),
the Michigan Department of Civil Rights (the MDCR), and the people of Michigan for the
vast majority of the ELCRA’s 45-year existence. 4
2
See Const 1963, art 4, § 1 (vesting the legislative power in the Michigan Legislature);
Const 1963, art 4, § 33 (setting forth the process by which “[e]very bill passed by the
legislature . . . becomes law”); Const 1963, art 2, § 9 (recognizing the power of the people
“to propose laws and to enact and reject laws, called the initiative, and the power to approve
or reject laws enacted by the legislature, called the referendum”).
3
As aptly stated by Justice Kavanaugh in his dissenting opinion in Bostock v Clayton Co,
590 US ___, ___; 140 S Ct 1731, 1836; 207 L Ed 2d 218 (2020), “when this Court usurps
the role of [the Legislature], as it does today, the public understandably becomes confused
about who the policymakers really are in our system of separated powers, and inevitably
becomes cynical about the oft-repeated aspiration that judges base their decisions on law
rather than on personal preference.”
4
How this case wound up before us should not be lost on anyone. The MCRC is charged
with investigating alleged discrimination prohibited under Michigan law. Const 1963, art
5, § 29. The MCRC does this via the MDCR. See MCL 16.575; MCL 16.577. For more
than 40 years, from the enactment of the ELCRA in 1976 until 2018, the MCRC repeatedly
and explicitly took the position that sexual-orientation discrimination was not prohibited
under Michigan law. This understanding was consistent with Michigan caselaw addressing
the question. See, e.g., Barbour v Dep’t of Social Servs, 198 Mich App 183; 497 NW2d
216 (1993). For years, the MCRC tried unsuccessfully to get the Legislature to amend the
ELCRA to include sexual orientation as a protected class. These efforts apparently
exhausted the MCRC, and, in 2018, it elected to end-run the Legislature by declaring in
Interpretive Statement 2018-1 that the ELCRA has always prohibited sexual-orientation
discrimination (as well as gender-identity discrimination). The MCRC directed the MDCR
to enforce the ELCRA accordingly. In this way, the MCRC invaded both the law-making
power exclusively assigned to the Legislature and the judicial power to interpret law
exclusively assigned to Michigan’s courts.
2
I would affirm the Court of Claims’ conclusion that sexual orientation is not a
protected class under the ELCRA. The majority opinion declares that “because of . . . sex”
means something that nobody in 1976 thought it meant. In so doing, the majority opinion
also declares that phrase to encompass something that the enacting Legislature specifically
and explicitly considered including but ultimately chose not to embrace. Whatever one’s
personal views about what the ELCRA ought to prohibit, its language prohibiting
discrimination “because of . . . sex” does not prohibit sexual-orientation discrimination,
and it is not within the constitutional power of this Court to alter that language. If we are
to be faithful to our constitutional mandate to say what the law is, we simply cannot pretend
that the ELCRA says something that it does not say. Because the majority opinion is
inconsistent with these bedrock principles of Michigan’s constitutional system, I must
dissent.
I. APPLICABLE STANDARD OF REVIEW AND CORRESPONDING RULES OF
STATUTORY INTERPRETATION
We review questions of statutory interpretation de novo. 5 “ ‘The cardinal rule of
statutory construction is to discern and give effect to the intent of the Legislature.’ ” 6 We
begin our interpretive inquiry with the words of a statute because they provide the best
5
American Civil Liberties Union of Mich v Calhoun Co Sheriff’s Office, ___ Mich ___,
___; ___ NW2d ___ (2022) (Docket No. 163235) (ACLU of Mich); slip op at 5; Dep’t of
Talent & Economic Dev/Unemployment Ins Agency v Great Oaks Country Club, Inc, 507
Mich 212, 226; 968 NW2d 336 (2021).
6
People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011), quoting Drouillard v Stroh
Brewery Co, 449 Mich 293, 302; 536 NW2d 530 (1995). See also City of Lansing v
Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959).
3
evidence of the Legislature’s intent and its policy choices. 7 And those words “should be
interpreted on the basis of their ordinary meaning and the context within which they are
used in the statute.” 8 When statutory language is unambiguous, no further judicial
construction is required or permitted because the Legislature is presumed to have intended
the meaning it plainly expressed by the words it chose. 9
Moreover, statutory interpretation involves the search for a statute’s original public
meaning, which is the meaning that the relevant linguistic community (i.e., legislators,
courts, agencies, and reasonably informed members of the public) understood it to possess
at the time it was enacted into law. “[S]tatutes convey meaning only because members of
a relevant linguistic community apply shared background conventions for understanding
how particular words are used in particular contexts.” 10 Thus, the core of the interpretive
7
People v Harris, 499 Mich 332, 345; 885 NW2d 832 (2016), citing White v Ann Arbor,
406 Mich 554, 562; 281 NW2d 283 (1979). See also ACLU of Mich, ___ Mich at ___; slip
op at 5 (“The primary goal of statutory interpretation is to ascertain the legislative intent
that may reasonably be inferred from the statutory language.”) (quotation marks and
citation omitted); Dep’t of Talent & Economic Development/Unemployment Ins Agency,
507 Mich at 226 (same principle); Lash v Traverse City, 479 Mich 180, 187; 735 NW2d
628 (2007) (“When interpreting a statute, our primary obligation is to ascertain and
effectuate the intent of the Legislature. To do so, we begin with the language of the statute,
ascertaining the intent that may reasonably be inferred from its language.”) (citations
omitted).
8
People v Zajaczkowski, 493 Mich 6, 13; 825 NW2d 554 (2012), citing People v Morey,
461 Mich 325, 330; 603 NW2d 250 (1999).
9
ACLU of Mich, ___ Mich at ___; slip op at 5, citing 2 Crooked Creek, LLC v Cass Co
Treasurer, 507 Mich 1, 9; 967 NW2d 577 (2021) (“When the statutory language is clear
and unambiguous, judicial construction is not permitted and the statute is enforced as
written.”) (quotation marks and citation omitted).
10
Manning, The Absurdity Doctrine, 116 Harv L Rev 2387, 2457 (2003); see also id. at
2392-2393 (explaining that proper statutory interpretation asks “how a reasonable person,
conversant with the relevant social and linguistic conventions, would read the text in
4
enterprise is discovering what the linguistic community’s chosen words meant to that
community at the time those words became law. 11
II. ANALYSIS
This Court is constitutionally entrusted with the privilege of interpreting the duly
enacted laws of Michigan. But the majority opinion’s holding that the ELCRA has always
prohibited sexual-orientation discrimination amounts to an exercise of legislative, not
judicial, power. The relevant evidence, all of which establishes the historical-linguistic
context necessary for an accurate interpretation of the ELCRA, demonstrates that the best
reading of the ELCRA is that it prohibits sex discrimination, i.e., differential, negative
treatment of persons of one gender vis-à-vis persons of the other gender, not sexual-
orientation discrimination.
context. This approach recognizes that the literal or dictionary definitions of words will
often fail to account for settled nuances or background conventions that qualify the literal
meaning of language and, in particular, of legal language”).
11
See Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo
J L & Pub Pol’y 49, 63 (2020), quoting Cooley, Constitutional Limitations (1st ed), p 38
n 1 (“ ‘Interpretation is the act of finding out the true sense of any form of words, that is,
the sense which their author intended to convey, and of enabling others to derive from them
the same idea which the author intended to convey . . . .’ ”) (quotation marks and citation
omitted). See also Manning, What Divides Textualists from Purposivists?, 106 Colum L
Rev 70, 79-80 (2006) (“Because one can make sense of others’ communications only by
placing them in their appropriate social and linguistic context, textualists further
acknowledge that ‘[i]n textual interpretation, context is everything.’ ”) (citation omitted).
5
A. THIS COURT IS NOT CONSTITUTIONALLY AUTHORIZED TO MAKE
POLICY, AND FOR IT TO DO SO SERIOUSLY UNDERMINES MICHIGAN’S
CONSTITUTIONAL ORDER
In 1963, the people of the state of Michigan, in whom “[a]ll political power is
inherent,” 12 adopted our state’s Constitution, which separates the legislative, executive,
and judicial powers into three distinct branches: the Legislature, the Governor, and the
courts. 13 In so doing, the people of Michigan delegated to the Legislature “ ‘the legislative
power of the State of Michigan[.]’ ” 14 Put another way, Michigan’s Constitution vests in
the Legislature “the power to make laws,” 15 or “the rules by which the duties and rights of
every citizen are to be regulated.” 16 Michigan’s Constitution also vests in the judicial
branch of government the power to interpret and apply the law. 17
12
Const 1963, art 1, § 1.
13
Const 1963, art 3, § 2.
14
Coalition of State Employee Unions v Michigan, 498 Mich 312, 332; 870 NW2d 275
(2015), citing Const 1963, art 4, § 1; see also Cameron v Auto Club Ins Ass’n, 476 Mich
55, 65; 718 NW2d 784 (2006) (“It is the legislators who establish the statutory law because
the legislative power is exclusively theirs.”), overruled on other grounds by Regents of
Univ of Mich v Titan Ins Co, 487 Mich 289 (2010); In re Complaint of Rovas Against SBC
Mich, 482 Mich 90, 98 n 18, 117; 754 NW2d 259 (2008).
15
In re Complaint of Rovas, 482 Mich at 98.
16
The Federalist No. 78 (Hamilton) (Rossiter ed, 1961), p 465.
17
See Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586
(1959), quoting 16 CJS, Constitutional Law, § 144, p 687 (“ ‘The primary functions of the
judiciary are to declare what the law is and to determine the rights of parties conformably
thereto.’ ”). See also Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803)
(stating that “[i]t is emphatically the province and duty of the judicial department to say
what the law is”).
6
The separation of powers is an indispensable part of our constitutional system, and
its cultivation and preservation provides the context within which the exercise of liberty is
made possible. “By separating the powers of government, the framers of the Michigan
Constitution sought to disperse governmental power and thereby to limit its exercise.
‘[T]here [is] no liberty . . . if the power of judging be not separated from the legislative and
executive powers.’ ” 18
The federal system also features the separation of powers, and by looking to that
system, we can better comprehend the function and purpose of the separation of powers in
Michigan. 19 The Supreme Court of the United States has explained that the separation of
powers is intended to preserve the constitutional system of “checks and balances . . . built
into the tripartite Federal Government as a self-executing safeguard against the
encroachment or aggrandizement of one branch at the expense of the other.” 20 The “first
18
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 613; 684 NW2d
800 (2004), quoting The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 299 (alterations
in Nat’l Wildlife Federation), overruled on other grounds by Lansing Sch Ed Ass’n v
Lansing Bd of Ed, 487 Mich 349 (2010).
19
See Nat’l Wildlife Federation, 471 Mich at 613 n 5, quoting Schwartz v Flint, 426 Mich
295, 306; 395 NW2d 678 (1986) (“The separation of powers provision in [the Michigan
Constitution] is ‘in harmony with American political theory, the State government [being]
divided into the three historic departments, the legislative, executive, and judicial . . . .’ ”).
20
Buckley v Valeo, 424 US 1, 122; 96 S Ct 612; 46 L Ed 2d 659 (1976), relying on The
Federalist No. 51 (Madison) (Putnam’s Sons ed, 1908), pp 323-324. See also Consumer
Energy Council of America v Fed Energy Regulatory Comm, 218 US App DC 34, 80; 673
F2d 425 (1982) (“The fundamental purpose of [the separation of powers] is to check the
extent of power exercisable by any one branch of Government in order to protect the people
from oppression.”), relying on Buckley, 424 US at 122, aff’d sub nom Process Gas
Consumers Group v Consumer Energy Council of Am, 463 US 1216 (1983). Accord The
Federalist No. 47 (Madison) (Rossiter ed, 1961), p 301 (“The accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether of one, a few, or many,
7
purpose” of the separation of powers is “to prevent an unnecessary and therefore dangerous
concentration of power in one branch.” 21 The separation of powers is also “intended, in
part, to protect each branch of government from incursion by the others.” 22
Pursuant to this constitutional structure, policymaking is fundamentally a legislative
prerogative. 23 As between the Legislature and this Court, we have recognized that the
Legislature is the superior institution for creating the public policy of this state:
As a general rule, making social policy is a job for the Legislature, not
the courts. This is especially true when the determination or resolution
requires placing a premium on one societal interest at the expense of another:
The responsibility for drawing lines in a society as complex as ours—of
identifying priorities, weighing the relevant considerations and choosing
between competing alternatives—is the Legislature’s, not the judiciary’s.[24]
and whether hereditary, selfappointed, or elective, may justly be pronounced the very
definition of tyranny.”).
Chadha v Immigration & Naturalization Serv, 634 F2d 408, 422 (CA 9, 1980), aff’d 462
21
US 919 (1983).
22
Bond v United States, 564 US 211, 222; 131 S Ct 2355; 180 L Ed 2d 269 (2011). The
separation of powers does more than just restrain the branches. See Gundy v United States,
588 US ___, ___; 139 S Ct 2116, 2135; 204 L Ed 2d 522 (2019) (Gorsuch, J., dissenting)
(explaining that “enforcing the separation of powers” is also about “safeguarding a
structure designed to protect [the people’s] liberties, minority rights, fair notice, and the
rule of law”).
23
Blank v Dep’t of Corrections, 462 Mich 103, 116; 611 NW2d 530 (2000); American
States Ins Co v Detroit Auto Inter-Ins Exch, 117 Mich App 361, 367; 323 NW2d 705
(1982).
24
Woodman v Kera LLC, 486 Mich 228, 245-246; 785 NW2d 1 (2010) (quotation marks
and citations omitted). Accord Terrien v Zwit, 467 Mich 56, 67; 648 NW2d 602 (2002),
citing Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).
8
Accordingly, courts are “not to second-guess [the Legislature’s] policy decisions or to
change the words of a statute in order to reach a different result.” 25 And just because
legislation “appears undesirable, unfair, unjust or inhumane does not of itself empower a
court to override the [L]egislature and substitute its own solution.” 26 “We do not sit as the
‘legislators in chief’ of this state,” standing at the ready to update the Legislature’s work
product that we find “ ‘cumbersome,’ ‘impractical,’ or ‘inadequately precise.’ ” 27
All this to say, this Court’s duty is “to interpret the statute as we find it. The wisdom
of the provision in question in the form in which it was enacted is a matter of legislative
responsibility with which courts may not interfere.” 28 In our system of government, this
Court’s function is “to fairly interpret a statute as it then exists; it is not the function of the
25
Harris, 499 Mich at 345. See also Pontiac Sch Dist v Pontiac, 262 Mich 338, 353; 247
NW 474 (1933) (“The constitutional duty of courts is to interpret and apply the law, not to
enact laws.”), abrogated on other grounds by Citizens Protecting Michigan’s Constitution
v Secretary of State, 503 Mich 42 (2018).
26
Doe v Dep’t of Social Servs, 439 Mich 650, 681; 487 NW2d 166 (1992) (quotation marks
and citation omitted). See also Johnson v Recca, 492 Mich 169, 187; 821 NW2d 520
(2012), quoting Robertson v DaimlerChrysler Corp, 465 Mich 732, 759; 641 NW2d 567
(2002) (holding that “our judicial role ‘precludes imposing different policy choices than
those selected by the Legislature’ ” and, therefore, “the judicial branch cannot amend [a
statute] to make it ‘better’ ” because “[t]hat is an authority reserved solely to the
Legislature”) (quotation marks and citation omitted).
27
See People v Dunbar, 499 Mich 60, 71-72; 879 NW2d 229 (2016), citing Lansing Mayor
v Pub Serv Comm, 470 Mich 154, 163-164; 680 NW2d 840 (2004), superseded by statute
as stated in South Dearborn Environmental Improvement Ass’n v Dep’t of Environmental
Quality, 502 Mich 349, 363-365; 917 NW2d 603 (2018).
28
City of Lansing, 356 Mich at 648 (quotation marks and citation omitted). Accord People
v Detroit, GH & M R Co, 228 Mich 596, 612; 200 NW 536 (1924) (“[C]ourts cannot make
laws; they can but interpret them in conformity with the legislative intent.”). See also
Dunbar, 499 Mich at 71-72 (explaining that the authority to rewrite statutes rests with the
Legislature, not this Court).
9
court to legislate.” 29 Thus, “[i]n accordance with the constitution’s separation of powers,
this Court cannot revise, amend, deconstruct, or ignore [the Legislature’s] product and still
be true to our responsibilities that give our branch only the judicial power.” 30 The
foregoing principles, when taken together and adhered to, prevent “the judiciary from
usurping the powers of the political branches,” 31 which also serves to uphold the people’s
chosen constitutional structure, under which the power and duty to write laws belongs to
the Legislature, not this Court.
B. THE ELCRA, AS WRITTEN, DOES NOT PROHIBIT SEXUAL-ORIENTATION
DISCRIMINATION
I would affirm the Court of Claims’ conclusion that sexual orientation is not a
protected class under the ELCRA and, consequently, would also affirm the result in
Barbour. 32 The majority opinion fails to read “because of . . . sex” in its proper context, as
those words were understood in 1976, when the Legislature passed the ELCRA. Because
29
Roosevelt Oil Co v Secretary of State, 339 Mich 679, 694; 64 NW2d 582 (1954).
30
In re Complaint of Rovas, 482 Mich at 98 (quotation marks and citation omitted; brackets
in original). Accord People v Steanhouse, 500 Mich 453, 489; 902 NW2d 327 (2017)
(MARKMAN, C.J., concurring in part and dissenting in part).
31
Mich Chiropractic Council v Comm’r of Office of Fin and Ins Servs, 475 Mich 363, 374;
716 NW2d 561 (2006) (opinion of YOUNG, J.); id. at 387 (MARKMAN, J., concurring in
part), overruled on other grounds by Lansing Sch Ed Ass’n, 487 Mich 349.
32
Barbour, 198 Mich App at 185 (holding that “harassment or discrimination based upon
a person’s sexual orientation is not an activity proscribed by the [ELCRA]”). As the
majority opinion notes, Barbour adopted, without independent analysis, the conclusion of
various federal circuit courts, which held decades ago that Title VII of the Civil Rights Act
of 1964, 42 USC 2000e et seq., does not prohibit sexual-orientation discrimination. Those
cases were overruled by Bostock. But I can, and would, affirm Barbour’s result because
my opinion does not rely on and is not controlled by the reasoning of Bostock.
10
the word “sex” is not expressly defined in the ELCRA, the Court may consult dictionary
definitions to determine its meaning. 33 The relevant meaning is to be found in dictionaries
that existed prior to the ELCRA’s enactment (or slightly after, given that “ ‘[d]ictionaries
tend to lag behind linguistic realities’ ” 34).
The American Heritage Dictionary (1970) provides the following definitions for
“sex”:
1. a. The property or quality by which organisms are classified according to
their reproductive functions. b. Either of two divisions, designated male and
female, of this classification. 2. Males or females collectively. 3. The sexual
urge or instinct as it manifests itself in behavior. 4. Sexual intercourse.[35]
Similarly, Webster’s New Collegiate Dictionary (1976) defines “sex” as follows:
1 : either of two divisions of organisms distinguished respectively as male or
female[;] 2 : the sum of the structural, functional, and behavioral
characteristics of living beings that subserve reproduction by two interacting
parents and that distinguish males and females[;] 3 a : sexually motivated
phenomena or behavior[;] b: SEXUAL INTERCOURSE[;] 4 : GENITALIA[.][36]
33
People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997) (stating that “when terms are
not expressly defined by a statute, a court may consult dictionary definitions”). To avail
ourselves of dictionaries is consistent with the Legislature’s command in MCL 8.3a that
“[a]ll words and phrases shall be construed and understood according to the common and
approved usage of the language; but technical words and phrases, and such as may have
acquired a peculiar and appropriate meaning in the law, shall be construed and understood
according to such peculiar and appropriate meaning.”
34
People v Wood, 506 Mich 114, 123 n 7; 954 NW2d 494 (2020), quoting Scalia & Garner,
Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 419.
35
American Heritage Dictionary (1970) (boldface omitted).
36
Webster’s New Collegiate Dictionary (1976) (boldface omitted).
11
Examples abound. 37
37
Every dictionary published before 1977 that I examined lists biological sex—the
distinction between male and female—as its focal definition of “sex.” See, e.g., Webster’s
Third New International Dictionary (1966) (“1: one of the two divisions of organic esp.
human beings respectively designated male or female[;] 2: the sum of the morphological,
physiological, and behavioral peculiarities of living beings that subserves biparental
reproduction with its concomitant genetic segregation and recombination which underlie
most evolutionary change, that in its typical dichotomous occurrence is usu. genetically
controlled and associated with special sex chromosomes, and that is typically manifested
as maleness and femaleness with one or the other of these being present in most higher
animals though both may occur in the same individual in many plants and some
invertebrates and though no such distinction can be made in many lower forms (as some
fungi, protozoans, and possibly bacteria and viruses) either because males and females are
replaced by mating types or because the participants in sexual reproduction are
indistinguishable[;] 3: the sphere of interpersonal behavior esp. between male and female
most directly associated with, leading up to, substituting for, or resulting from genital
union[;] 4: the phenomenon of sexual instincts and their manifestations”) (usage examples
omitted); Webster’s Seventh New Collegiate Dictionary (1969) (“1: either of two divisions
of organisms distinguished respectively as male or female[;] 2: the sum of the structural,
functional, and behavioral peculiarities of living beings that subserve reproduction by two
interacting parents and distinguish males and females[;] 3 a: sexually motivated
phenomena or behavior[;] b: SEXUAL INTERCOURSE”); The Random House Dictionary
(1971) (1. the fact or character of being either male or female. 2. either of the two groups
of persons exhibiting this character. 3. the sum of the structural and functional differences
by which the male and female are distinguished, or the phenomena or behavior dependent
on these differences. 4. the instinct or attraction drawing one sex toward another, or its
manifestation in life and conduct. 5. coitus. 6. to have sex, informal, to engage in sexual
intercourse. 7. to ascertain the sex of, esp. of newly-hatched chicks. 8. sex it up, slang.
to neck passionately. 9. sex up, informal. a. to arouse sexually. b. to increase the appeal
of; to make more interesting, attractive, or exciting.”) (usage examples omitted); Webster’s
New World Dictionary of the English Language (2d college ed, 1974) (“1. either of the
two divisions, male or female, into which persons, animals, or plants are divided, with
reference to their reproductive functions[;] 2. the character of being male or female; all the
attributes by which males and females are distinguished[;] 3. anything connected with
sexual gratification or reproduction or the urge for these; esp., the attraction of those of one
sex for those of the other[;] 4. sexual intercourse”).
The same is true of a dictionary published slightly after the ELCRA’s enactment
into law, which is appropriate to consult given that “ ‘[d]ictionaries tend to lag behind
linguistic realities,’ ” Wood, 506 Mich at 123 n 7, quoting Reading Law, p 419. See
Webster’s New Twentieth Century Dictionary (1983) (defining “sex” as “1. either of the
12
The litigants debate the breadth of the definition of “sex.” As noted in the majority
opinion, “[p]laintiff Rouch World and certain amici propose a narrower definition of ‘sex’
that defines the word as ‘whether one is a biological male or biological female’; but
defendants and other amici propose a more expansive definition that incorporates
physiological, structural, and behavioral characteristics.” 38 The majority opinion “use[s]
but do[es] not affirmatively rule in favor of the more restrictive definition,” 39 concluding
that defendants prevail even under this narrower definition.
two divisions of organisms distinguished as male or female; males or females (especially
men or women) collectively. 2. the character of being male or female; all of the things
which distinguish a male from a female. 3. anything connected with sexual gratification
or reproduction or the urge for these, especially the attraction of individuals of one sex for
those of the other. 4. the female sex; women: with the article the. sex appeal, sex
attraction, or the quality or qualities of an individual that are attractive to a member of the
opposite sex. the fair (or gentle, weaker) sex; women. the sterner (or stronger) sex; men”).
See also American Heritage Dictionary (1979) (entry for “sex” identical to American
Heritage Dictionary (1970)).
Finally, the definition of “sex” in Webster’s Third (1966) is particularly notable
because the publication of that dictionary accompanied “a new era” for dictionaries as a
whole: “one in which describing how people use language became more important than
showing them how to do so properly.” King, The Draconian Dictionary Is Back, The
Atlantic (August 5, 2018) (accessed July 23, 2022) [https://perma.cc/LBT8-
JQKM]. That is, Webster’s Third is a “descriptivist” dictionary, and “[d]escriptivist
lexicographers, steeped in linguistic theory, eschew value judgements about so-called
correct English and instead describe how people are using the language.” Id. That the
focal definition of “sex” in Webster’s Third is the male-female distinction is therefore good
evidence that biological sex is what was meant by the ELCRA’s drafters when they
included sex as a protected class.
38
Ante at 17-18.
39
Ante at 18.
13
Contrary to the position expressed by defendants and adopted arguendo by the
majority opinion, I conclude that the ELCRA’s use of “sex” refers to whether one is a
biological male or a biological female, as illustrated by the definitions set forth earlier.
But, contrary to the majority opinion, I conclude that defendants do not prevail under that
narrower definition. This is so because no person familiar with the common usage of the
English language in 1976 would have understood the ordinary meaning of “sex” to include
“sexual orientation.” Simply stated, if discrimination “because of . . . sex” retains its
original, plain, and single meaning of treating similarly situated biological women
differently and worse than similarly situated biological men, and vice versa, 40 then
40
This Court has held that, under the ELCRA, “the essence of a sex discrimination civil
rights suit is that similarly situated people have been treated differently because of their
sex.” Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993). See also Diamond v
Witherspoon, 265 Mich App 673, 683; 696 NW2d 770 (2005) (same). The Supreme Court
of the United States has joined us in the context of Title VII, on which the ELCRA was
“clearly modeled.” Rasheed v Chrysler Corp, 445 Mich 109, 123 n 20; 517 NW2d 19
(1994). In Oncale v Sundowner Offshore Servs, Inc, 523 US 75; 118 S Ct 998; 140 L Ed
2d 201 (1998), the Court unanimously adopted Justice Ginsburg’s understanding of sex
discrimination, stating that it occurs for purposes of Title VII when “ ‘members of one sex
are exposed to disadvantageous terms or conditions of employment to which members of
the other sex are not exposed.’ ” Id. at 80, quoting Harris v Forklift Sys, Inc, 510 US 17,
25; 114 S Ct 367; 126 L Ed 2d 295 (1993) (Ginsburg, J., concurring). In other words, the
ELCRA’s prohibition of discrimination “because of . . . sex” prohibits “double standards
for men and women—policies that disfavor at least some individuals of one sex compared
with similarly situated members of the other.” Anderson, On the Basis of Identity:
Redefining “Sex” in Civil Rights Law and Faulty Accounts of “Discrimination,” 43 Harv
J L & Pub Pol’y 387, 390 (2020).
A clear example that showcases what sex discrimination is comes from a case
argued by then-advocate Ginsburg herself: Weinberger v Wiesenfeld, 420 US 636; 95 S Ct
1225; 43 L Ed 2d 514 (1975). In Weinberger, the Supreme Court of the United States held
that a sex-based distinction in the disbursement of Social Security survivor’s benefits
violated the Fifth Amendment’s Due Process Clause. Id. at 654. Prior to Weinberger, a
widow (and her children) could receive Social Security survivor’s benefits, but only a
widower’s children could receive them, not the widower himself. Id. The Court held that
14
defendants’ argument that the ELCRA prohibits sexual-orientation discrimination on the
basis of its prohibition of discrimination “because of . . . sex” fails. 41
Defendants claim, and the majority opinion holds, that plaintiff’s refusal to
participate in the celebration of complainants’ homosexual marriage amounts to unlawful
discrimination “because of . . . sex” under the ELCRA, on the ground that plaintiff’s
refusal necessarily implicates sex. The heart of defendants’ argument is that “ ‘[b]ecause
one cannot fully define a person’s sexual orientation without identifying his or her sex,
the sex discrimination consisted in the fact that male surviving spouses were treated
differently and worse than their female counterparts, on account of, or by reason of, or
because of, their sex; had they been women (widows), they would have received the
surviving-spouse benefits, but because they were men (widowers), they were ineligible for
those benefits. That is, male surviving spouses were subjected to a “double standard[]”
that “disfavor[ed] at least some individuals of one sex compared with similarly situated
members of the other.” On the Basis of Identity, 43 Harv J L & Pub Pol’y at 390. Said
another way, male surviving spouses were “ ‘exposed to disadvantageous terms or
conditions’ ” to which female surviving spouses were “ ‘not exposed.’ ” Oncale, 523 US
at 80, quoting Harris, 510 US at 25 (Ginsburg, J., concurring). Said still another way, and
borrowing this Court’s own words, “similarly situated people [were] treated differently
because of their sex.” Radtke, 442 Mich at 379; see also Diamond, 265 Mich App at 683.
41
While not directly applicable, this Court has previously stated that the ELCRA does not
prohibit sexual-orientation discrimination:
[N]one of the exceptions where a suit is allowed against the government can
be read to allow suit for sexual orientation discrimination. Likewise, no
statute grants governmental agencies the authority to create an immunity
exception for sexual orientation discrimination or waive immunity in the area
of civil rights. Notably, the [ELCRA], which makes a municipality liable for
specific civil rights violations, neither provides a cause of action for sexual
orientation discrimination nor grants municipalities the authority to create
one. MCL 37.2101 et seq. Moreover, the [ELCRA] limits complaints to
causes of action for violations of the act itself[.] [Mack v Detroit, 467 Mich
186, 196; 649 NW2d 47 (2002).]
15
sexual orientation is a function of sex.’ ” 42 But this logic embodies a false premise. Sex
can, and does, exist and can be determined without reference to sexual orientation. That
is, sexual orientation may depend on sex, but sex does not depend on sexual orientation.
Thus, sex and sexual orientation are not equivalent terms. A person need not know
anything about another person’s biological sex in order to know if that person has a
homosexual orientation. For example, if an employer receives a referral that he “should
hire Sam, who happens to be a homosexual,” the employer could refuse to hire Sam
because of his or her sexual orientation without ever even knowing Sam’s biological sex.
Knowledge about another person’s biological sex is not necessary to influence one’s
actions toward that other person on the basis of his or her sexual orientation. These two
terms simply are not interchangeable.
Consider the following hypothetical scenario provided by plaintiffs:
A conference hall has four people request to use their facility on the same
day at the same time. The conference hall only has two rooms available so
the owner can only approve two of the four people to use the facility. The
four people are a straight man, a gay man, a straight woman, and a gay
woman. If the owner has a bias against the female “sex,” then the owner will
approve the requests of the straight man and the gay man. However, if the
owner has a bias against a “sexual orientation,” then the owner will approve
the request of the straight man and the straight woman.[43]
As plaintiffs conclude, this illustrates that sex and sexual orientation are distinct concepts.
Clearly, a bias rooted in gender produces one result, whereas a bias rooted in sexual
42
Defendants-Appellants’ Brief on Appeal (October 22, 2021) at 14, quoting Zarda v
Altitude Express, Inc, 883 F3d 100, 113 (CA 2, 2018).
43
Plaintiffs-Appellees’ Brief on Appeal (November 26, 2021) at 17.
16
orientation produces an entirely different result. 44 Because the discriminatory results of
these biases are different, it is abundantly clear that sex and sexual orientation are not the
same. 45
Defendants attempt to avoid this conflict by insisting on a cherry-picked, broader
definition of sex, which they proffer contrary to statutory context. But they do not prevail
even with that broader definition. Specifically, defendants rely on one of the possible
44
The majority opinion attempts to respond by once again asserting, with different
phrasing, that “when [someone] discriminates against a person ‘because she is (A) a
woman who is (B) sexually attracted to women, then it is motivated, in part, by an
enumerated trait: the employee’s sex.’ ” Ante at 23 n 16, quoting Hively v Ivy Tech
Community College of Indiana, 853 F3d 339, 359 (CA 7, 2017) (Flaum, J., concurring).
On that basis, the majority opinion concludes that discrimination “because of . . . sex”
necessarily entails sexual-orientation discrimination. However, as I have shown, it is
possible to make decisions based on sex alone and on sexual orientation alone, and that
possibility fatally undermines the majority opinion’s logic. See pages 14-17 of this
opinion. More importantly, as I have explained at length, this Court’s duty is
interpretation: determining and then applying the meaning that the ELCRA possessed for
the linguistic community that passed it into law. See pages 6-10 of this opinion. Nobody
in 1976 thought that the ELCRA’s prohibition of discrimination “because of . . . sex”
included a prohibition on discrimination because of sexual orientation. And yet, today, a
majority of this Court, “rather than members of [the Legislature],” sees fit to “impos[e] on
a [nearly] half-century-old statute a meaning of ‘sex discrimination’ that the [Legislature]
that enacted it would not have accepted,” Hively, 853 F3d at 357 (Posner, J., concurring)
(alterations added)—indeed, not only would not have accepted but explicitly did not accept.
See pages 19-25 of this opinion for discussion of this point. Such an act is anathema to the
judicial role and will seriously undermine Michigan’s constitutional order if repeatedly
indulged.
45
See Bostock, 590 US at ___; 140 S Ct at 1835 (Kavanaugh, J., dissenting) (observing
that to discriminate on the basis of sex as opposed to sexual orientation “implicates two
distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls
within two distinct statutory prohibitions”).
17
meanings of “sex”: “The sexual urge or instinct as it manifests itself in behavior.” 46 It is
entirely unsurprising that a dictionary includes within its definition of “sex” the desire to
engage in sexual activity. But this in no way proves that the ordinary meaning of the word
“sex” in 1976, especially as that term was used in the ELCRA, included sexual orientation.
Instead of addressing the actual intent of the ELCRA’s drafters, defendants
inappropriately argue that the fact that there exists a definition for sex that has to do with
sexual activity or behavior means that this meaning of the word must be included among
the ELCRA’s protections. However, there is no rule of construction suggesting that the
Legislature must have intended all possible meanings of a word it used. On the contrary,
statutory terms “must be interpreted on the basis of their ordinary meaning and the context
in which they are used.” 47
The ELCRA was not enacted to protect the expression of sexual behavior or the act
of sexual intercourse, which are possible meanings under defendants’ preferred definition
of sex. For example, no reasonable person would conclude that the ELCRA’s prohibition
on discrimination “because of . . . sex” would protect a person from being fired from his or
her job for having sexual intercourse while at work, even though that is a possible meaning
46
American Heritage Dictionary (1970); see also American Heritage Dictionary (1979)
(same).
47
Zajaczkowski, 493 Mich at 13. See also Absurdity Doctrine, 116 Harv L Rev at 2392-
2393, 2457; What Divides Textualists from Purposivists?, 106 Colum L Rev at 78, 79-80.
18
of “sex.” 48 Context and intent matter when interpreting statutes. 49 Just because courts may
consult dictionaries for assistance does not mean they must robotically and blindly follow
any and all of their definitions. This Court has always recognized and enforced this
commonsense rule. 50
When read in context it becomes eminently clear that the plain and ordinary
meaning of the word “sex” in 1976 did not include sexual orientation. 51 This conclusion
48
Rather, the ELCRA “is aimed at the prejudices and biases borne against persons because
of their membership in a certain class, and seeks to eliminate the effects of offensive or
demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355,
363; 362 NW2d 650 (1984) (quotation marks and citations omitted). Thus, that the
ELCRA protects persons who engage in sexual activity while at work is simply not a
reasonable interpretation.
49
Zajaczkowski, 493 Mich at 13. See also Absurdity Doctrine, 116 Harv L Rev at 2392-
2393, 2457; What Divides Textualists from Purposivists?, 106 Colum L Rev at 78, 79-80.
Accord Honigman Miller Schwartz & Cohn LLP v Detroit, 505 Mich 284, 307; 952 NW2d
358 (2020) (“[T]his Court will not extract words and phrases from within their context or
otherwise defeat their import as drawn from such context. A statute should be interpreted
in light of the overall statutory scheme, and although a phrase or a statement may mean
one thing when read in isolation, it may mean something substantially different when read
in context.”) (quotation marks, citations, and brackets omitted).
50
See, e.g., Dep’t of Environmental Quality v Worth Twp, 491 Mich 227, 238; 814 NW2d
646 (2012) (“When considering the correct interpretation, the statute must be read as a
whole, unless something different was clearly intended. Individual words and phrases,
while important, should be read in the context of the entire legislative scheme.”).
51
The majority opinion finds it notable that the ELCRA has been applied to circumstances
“likely unanticipated” by the enacting Legislature. The majority opinion claims that this
proposition in regard to the ELCRA is supported by Robinson v Ford Motor Co, 277 Mich
App 146, 153; 744 NW2d 363 (2007), which first greenlighted claims under the ELCRA
for a same-sex hostile work environment. See Gordon, A History of the Development of
Sex Discrimination Law in Michigan, 97 Mich B J 30, 33 (2018). Robinson concerned a
defendant employee who repeatedly committed unwelcome and depraved sexual acts
against a plaintiff employee of the same gender. Regardless of either employee’s sexual
19
is bolstered by the ELCRA’s prepassage history, which shows that the Legislature
specifically and explicitly considered adding, but ultimately declined to add, sexual
orientation as a protected class in the ELCRA. Before the ELCRA became law, the director
of the Detroit Human Rights Department (the DHRD) sent a letter to Representative Perry
Bullard, then the chair of the Michigan House of Representatives’ Civil Rights Committee
(the Committee). 52 The DHRD’s letter flagged what it took to be a flaw in the proposed
language of the ELCRA (then House Bill 4055). Unlike the “Declaration of Rights” in the
city of Detroit’s new charter, HB 4055 did not include sexual orientation as a protected
class. The East Lansing Human Relations Commission also sent a letter to Representative
Bullard and the Committee, urging the addition of sexual orientation as a protected class.
On June 5, 1975, the Committee held a roll-call vote on whether to include sexual
orientation, and by a 5 to 3 vote, it declined to add that language. “On the day that the bill
was scheduled to be voted out of committee,” the committee room was filled with “gay[]
orientation, Robinson addressed actual sexual harassment that the ELCRA was intended,
or anticipated, to prohibit.
The majority opinion simply chooses to ignore the longstanding rule of statutory
interpretation that this Court is “aided in discovering legislative intent . . . by examining
the proposed legislation [that the Legislature] considered and rejected, contrasted with the
provisions as finally adopted.” Miller v State Farm Auto Ins Co, 410 Mich 538, 566; 302
NW2d 537 (1981). And where, as here, the Legislature considered certain language and
rejected it, we should not, indeed we cannot, read the statute to include that which the
Legislature expressly rejected. See notes 78 and 79 of this opinion and associated text.
Because the majority opinion reads into the ELCRA something that the Legislature
expressly considered but rejected, it can only be characterized as a brazen act of judicial
overreach.
52
This document and related materials were submitted in the appendix to plaintiffs’ brief
on appeal.
20
and lesbian[] . . . advocates who . . . claim[ed] that the proposed law, as drafted, was short
sighted” because it did not protect gays and lesbians. 53 Their appeal fell on deaf ears. One
of the bill’s cosponsors, Representative Mel Larsen, later admitted that it was very unlikely
that the ELCRA would have made it out of the House had it been amended to include
sexual orientation as a protected class. 54 The Legislature therefore made a political choice
to not extend the ELCRA to prohibit sexual-orientation discrimination, and it did so with
the understanding that, by not including sexual orientation as a protected class,
discrimination on that basis would not be prohibited by the ELCRA. 55
53
Gubbins, Legal Milestone Honors Elliot[t]-Larsen Civil Rights Act, Oakland County
Legal News (September 17, 2012)
(accessed July 23, 2022) [https://perma.cc/75K6-9NG3].
54
Skubick, Who is Elliott and Who is Larsen? Groundbreakers, That’s Who, MLive
(November 23, 2014) (accessed July 23, 2022) [https://perma.cc/4HTQ-
E9ZJ] (Representative Larsen “recall[ed] the movement was focused on the African
American community. Period. . . . [W]hen the bill did pass, it came down to practical
political calculus. Put gays in the measure and the whole thing implodes. Leave them out,
and the bill passes.”).
55
Importantly, however, we know that the Legislature knows how to identify and protect
sexual orientation when it wants to; but it did not do so, and to date has not done so, with
the ELCRA. See MCL 28.257a (requiring “[t]he chief of police of each city or village, the
chief of police of each township having a police department, and the sheriff of each county
within this state” to “report to the department of state police, in a manner prescribed by the
department, information specified under [MCL 28.251] related to crimes motivated by
prejudice or bias based upon race, ethnic origin, religion, gender, or sexual orientation”)
(emphasis added). See also MCL 141.1361(10)(a) and (b) (prohibiting the board of
directors of a regional convention facility authority created under MCL 141.1357 and the
authority itself from discriminating against employees, applicants, or contractors “because
of religion, race, color, national origin, age, sex, sexual orientation, height, weight, marital
status, partisan considerations, or a disability or [certain] genetic information”) (emphasis
added). Such a linguistic difference—“sex” as opposed to “sexual orientation”—matters
when it comes to discerning the Legislature’s intended meaning. See ACLU of Mich, ___
Mich at ___; slip op at 1-2, 12, 14 (unanimously holding that a statute, MCL 15.243(1)(d),
21
Crucially, when discharging its interpretive responsibilities, this Court has
recognized repeatedly that “where the Legislature has affirmatively rejected language that
would support an interpretation of a statute, that rejection evidences a legislative intent
toward a contrary construction.” 56 Again, this Court’s interpretive lodestar is the
Legislature’s intent, best evidenced by the words it chose to comprise a statute, and the
Court is “aided in discovering legislative intent . . . by examining the proposed legislation
[that the Legislature] considered and rejected, contrasted with the provisions as finally
that “exempt[s] from disclosure as a public record . . . [r]ecords or information specifically
described and exempted from disclosure by statute” does not exempt from disclosure such
records or information when the basis for that exemption is a regulation because “a
regulation is not a statute,” and the Legislature’s “deliberate linguistic choice” to use
“statute,” which this Court was “bound to respect,” matters and, indeed, was “dispositive”).
Moreover, the Legislature knows how to expand, or clarify, what conduct
constitutes discrimination “because of . . . sex.” Indeed, the Legislature has twice
expressly done so. First, it amended the ELCRA to provide that employment-based
discrimination “because of . . . sex” includes discrimination because of pregnancy or
childbirth, MCL 37.2201(d). And second, it amended the ELCRA to expressly state that
discrimination because of sex includes sexual harassment, MCL 37.2103(i). Notably, it
has not done so for sexual orientation.
56
LaGuire v Kain, 440 Mich 367, 396-397 & n 21; 487 NW2d 389 (1992) (BOYLE, J.,
concurring in part), citing People v Petrella, 424 Mich 221, 243-244; 380 NW2d 11 (1985);
Miller, 410 Mich at 567; Gen Teamsters Union v Uptown Cleaners & Hatters, Inc, 356
Mich 204, 240; 97 NW2d 593 (1959); People v Adamowski, 340 Mich 422, 429; 65 NW2d
753 (1954); and Miles ex rel Kamferbeek v Fortney, 223 Mich 552, 564; 194 NW 605(1923). See also Wayne Co v Auditor General, 250 Mich 227, 235-236; 229 NW 911(1930) (in construing an act for the distribution of highway funds, this Court stated: “The
legislative history of the 1927 act reveals the fact that while it was pending in the
legislature, a proposed amendment was rejected which, if embodied in the act, would have
rendered it subject to plaintiff’s interpretation and not to that of the defendant. Surely this
gives rise to the inference that the legislature did not intend the act should be subject to the
interpretation now urged by plaintiff”) (citation omitted).
22
adopted.” 57 And, “[w]here the Legislature has considered certain language and rejected it
in favor of other language, the resulting statutory language should not be held to explicitly
authorize what the Legislature explicitly rejected.” 58 The Supreme Court of the United
States has held similarly, explaining that a congressional committee’s deletion of a
provision from a bill under consideration strongly militates against a judgment that
Congress intended a result it had expressly declined to enact. 59 Relatedly, “[f]ew principles
of statutory construction are more compelling than the proposition that [the Legislature]
does not intend sub silentio to enact statutory language that it has earlier discarded in favor
of other language.” 60
As this Court has explained, the highest quality legislative history
include[s] actions of the Legislature intended to repudiate the judicial
construction of a statute, see, e.g., Detroit v Walker, 445 Mich 682, 697; 520
NW2d 135 (1994), or actions of the Legislature in considering various
57
Miller, 410 Mich at 566. Accord Nation v W D E Electric Co, 454 Mich 489, 497; 563
NW2d 233 (1997) (“In light of the Legislature’s rejection of an explicit provision requiring
compound interest, we presume the Legislature’s silence evidences an intent that courts
continue to use simple interest.”).
58
In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999), citing
Jennings v Southwood, 446 Mich 125, 142; 521 NW2d 230 (1994). Accord Bush v
Shabahang, 484 Mich 156, 173-174; 772 NW2d 272 (2009). See also Univ Med Affiliates,
PC v Wayne Co Executive, 142 Mich App 135, 140; 369 NW2d 277 (1985) (holding that
the legislative history of a statute may be considered, and if it can be shown that certain
language was affirmatively rejected, a court should not give the statute a construction that
the Legislature plainly refused to give it); Elliott v Genesee Co, 166 Mich App 11, 17; 419
NW2d 762 (1988).
59
Gulf Oil Corp v Copp Paving Co, Inc, 419 US 186, 200; 95 S Ct 392; 42 L Ed 2d 378(1974).
60
Immigration & Naturalization Serv v Cardoza-Fonseca, 480 US 421, 442-443; 107 S Ct
1207; 94 L Ed 2d 434 (1987) (quotation marks and citation omitted).
23
alternatives in language in statutory provisions before settling on the
language actually enacted. See, e.g., [Miles ex rel Kamferbeek, 223 Mich at
558]. From the former, a court may be able to draw reasonable inferences
about the Legislature’s intent, even when the Legislature has failed to
unambiguously express that intent. From the latter, by comparing
alternative legislative drafts, a court may be able to discern the intended
meaning for the language actually enacted.[61]
These principles of statutory interpretation are dispositive for properly interpreting the
ELCRA, and the majority opinion errs by ignoring them in favor of a myopic focus on an
erroneous understanding of the original meaning of the ELCRA’s text, taken without due
consideration of the historical-linguistic context from which the phrase at issue arose. 62
61
In re Certified Question from the United States Court of Appeals for the Sixth Circuit,
468 Mich 109, 115 n 5; 659 NW2d 597 (2003) (emphasis added). Just last year, this Court
unanimously held that reviewing such statutory history is extremely valuable. See Dep’t
of Talent & Economic Dev/Unemployment Ins Agency, 507 Mich at 227 (“A statute’s
history—the narrative of the statutes repealed or amended by the statute under
consideration—properly form[s] part of [its] context.”) (quotation marks and citations
omitted). See also Bush, 484 Mich at 173-174 (“[W]here the Legislature has considered
certain language and rejected it in favor of other language, the resulting statutory language
should not be held to authorize what the Legislature explicitly rejected.”) (emphasis added;
quotation marks and citation omitted).
For purposes of this dissent, there is no meaningful distinction between the kind of
legislative history I am considering, on the one hand, and statutory history, on the other.
Whatever labels we might apply to the Committee’s consideration but ultimate rejection of
including sexual orientation as a protected class in the ELCRA, there can be no doubt that
we can—and indeed must, if we are faithfully to interpret the ELCRA consistently with
the Legislature’s intent—consider it.
62
Justice VIVIANO persuasively demonstrates that the majority opinion’s but-for causation
test is inapplicable because the threshold requirement of discriminatory animus has not
been met, and, in the alternative, even if the test is appropriate, the majority opinion
misapplies it. To his thorough analysis, I would add the following. The majority opinion
makes much ado about the role played by “because of” in its interpretation of the ELCRA.
The majority opinion holds that “the operative phrase ‘because of’ in the ELCRA
establishes a but-for causation standard,” just as the Supreme Court of the United States
held “because of” does in Title VII when it decided Bostock. Ante at 17. “[A] but-for test
directs us to change one thing at a time and see if the outcome changes. If it does, we have
24
My interpretation of the ELCRA is not a novel one. Neither the MCRC nor the
MDCR, the institutional actors entrusted with enforcing the ELCRA and who have a
natural, vested interest in pursuing more expansive, aggressive interpretations of it, 63
found a but-for cause.” Bostock, 590 US at ___; 140 S Ct at 1739. Thus, for the majority
opinion, the ELCRA prohibits, and always has prohibited, sexual-orientation
discrimination because “a person’s sexual orientation necessarily implies conclusions
about their sex, and so ‘it is impossible to discriminate against a person’ for their sexual
orientation ‘without discriminating against that individual based on sex.’ ” Ante at 21,
quoting Bostock, 590 US at ___; 140 S Ct at 1741.
Ordinarily, that “because of” means but-for causation would not be terribly
controversial; that is a reasonable, but not a necessary, construction of the phrase. See
Hrapkiewicz v Wayne State Univ Bd of Governors, 501 Mich 1067, 1067, 1069 (2018)
(MARKMAN, C.J., dissenting) (explaining that because this Court’s caselaw has produced
“inconsistent” interpretations of the ELCRA’s causation standard, the Court should “grant
leave to appeal to address whether the ‘because of’ language in MCL 37.2202(1)(a) [of the
ELCRA] should be interpreted” as imposing but-for causation); Price Waterhouse v
Hopkins, 490 US 228, 240; 109 S Ct 1775; 104 L Ed 2d 268 (1989) (plurality opinion;
superseded by statute on other grounds) (“To construe the words ‘because of’ as colloquial
shorthand for ‘but-for causation’ . . . is to misunderstand them.”) (comma omitted). But,
as discussed earlier, the ELCRA’s prepassage history directs us to read “because of”
consistently with the Legislature’s intent not to include sexual orientation as a protected
class under the ELCRA. That prepassage history limits the scope of “because of”—a limit
that this Court must respect as an interpretive, not a legislative, body.
63
See Chadha, 634 F2d at 422-423 (observing that the separation of powers’ “goal of
preventing undue concentrations of power is furthered by the natural tendency of each
center of power [i.e., branch of government] to compete to enlarge or maintain its own
influence” and that “[a]n undue concentration of authority in one branch inevitably causes
structural decomposition of the other branches, along with a dispersion of their original
powers”). See also The Federalist No. 51 (Madison) (Rossiter ed, 1961), pp 318-319
(explaining how to prevent each branch, which naturally “wants” to dominate its co-
branches, from doing so: “But the great security against a gradual concentration of the
several powers in the same department consists in giving to those who administer each
department the necessary constitutional means and personal motives to resist
encroachments of the others. The provision for defense must in this, as in all other cases,
be made commensurate to the danger of attack. Ambition must be made to counteract
ambition. The interest of the man must be connected with the constitutional rights of the
place”).
25
understood the ELCRA to prohibit sexual-orientation discrimination until 2018. In 1977,
the same year that the ELCRA became effective, the MCRC published a “Sexual
Orientation Report and Recommendations.” 64 In a 2013 report, the MCRC, discussing that
1977 report, stated that “[p]erhaps the most significant conclusion reached in [the 1977]
report was the [MCRC’s] statement that the [MDCR] would not handle sexual orientation
discrimination cases. The [MCRC] cited a lack of jurisdiction until the State legislature
specifically authorized such an addition to its powers under ELCRA.” 65 In 1983, the
MCRC issued a statement saying that the ELCRA should be amended to prohibit sexual-
orientation discrimination. 66 And in 2013, the MCRC issued the aforementioned “Report
on LGBT Inclusion Under Michigan Law with Recommendations for Action,” which
reaffirmed the MCRC’s original, longstanding position, held since the ELCRA became
effective in 1977, that the ELCRA does not prohibit sexual-orientation discrimination.67
64
See Appendix to Plaintiffs-Appellees’ Brief on Appeal at 83a (discussing that 1977
report).
65
MDCR, Report on LGBT Inclusion under Michigan Law with Recommendations for
Action (January 28, 2013), p 5, available at
(accessed July 24, 2022) [https://perma.cc/HL6P-S8NJ].
66
Id.67
Id. at ii (“While ELCRA prohibits employment, public accommodations, public services,
education, and housing discrimination based on race, religion, color, national origin, sex,
age, marital status, height, weight, and arrest record, it does not currently prohibit
discrimination based on sexual orientation or gender identity/expression.”) (emphasis
added).
26
While an agency’s interpretation of a statute is, of course, not binding on us, 68 we should
not treat it, as the majority opinion does, as though it is no evidence at all of a statute’s
meaning. 69 Defendants cannot admit that, for more than 40 years, the MCRC openly
acknowledged that it did not understand “sex” to include sexual orientation, 70 and then in
68
In re Complaint of Rovas, 482 Mich at 100 (stating that agencies cannot “assume this
Court’s constitutional role as the final arbiter of the meaning of a statute”).
69
See id. at 103, quoting Boyer-Campbell Co v Fry, 271 Mich 282, 296-297; 260 NW 165(1935) (explaining this Court’s approach to an agency’s interpretation of a statute: “ ‘the
construction given to a statute by those charged with the duty of executing it is always
entitled to the most respectful consideration and ought not to be overruled without cogent
reasons. However, these are not binding on the courts, and [w]hile not controlling, the
practical construction given to doubtful or obscure laws in their administration by public
officers and departments with a duty to perform under them is taken note of by the courts
as an aiding element to be given weight in construing such laws and is sometimes deferred
to when not in conflict with the indicated spirit and purpose of the legislature’ ”) (emphasis
added; alteration in Rovas).
70
In addition to the actions of the MCRC, those of former Governor Jennifer Granholm
are instructive because they demonstrate the widespread, commonsense understanding
that discrimination based on sex is not the same as discrimination based on sexual
orientation. As Governor Gretchen Whitmer stated in Executive Order No. 2019-09,
“[d]iscrimination based on sexual orientation was prohibited in state employment for the
first time by Executive Directive 2003-24.” Former Governor Granholm promulgated
Executive Directive No. 2003-24, which explicitly enumerates sexual orientation as a
protected class. See id. (prohibiting discrimination “because of religion, race, color,
national origin, age, sex, sexual orientation, height, weight, marital status, partisan
considerations, or a disability or [certain] genetic information”) (emphasis added). In 2004,
“[t]his prohibition was incorporated by the Civil Service Commission in its Rule 1-8.1 on
prohibited discrimination . . . .” EO 2019-09, citing Civ Serv R 1-8.1, p 5.
Executive Directive No. 2003-24 and Civil Service Rule 1-8.1 expressly added
sexual orientation as a new, separately prohibited form of discrimination. In promulgating
those executive actions, Governor Granholm’s administration did not assert that language
prohibiting discrimination “because of . . . sex” in prior executive actions “already banned,
or henceforth would be deemed to ban, sexual orientation discrimination[.]” Zarda, 883
F3d at 152 n 22 (Lynch, J., dissenting). Instead, her administration deployed the phrase
explicitly to accomplish her goal of prohibiting sexual-orientation discrimination in state
employment. This shows that Michigan’s executive branch, like our Legislature, has,
27
the same breath argue that it is suddenly plain and obvious that it does—indeed, that it
always has. 71
consistently with my interpretation of the ELCRA, “long understood sexual orientation
discrimination to be distinct from, and not a form of, sex discrimination.” Bostock, 590
US at ___; 140 S Ct at 1831 (Kavanaugh, J., dissenting).
71
Historically, Michigan legislators have been on the same page as defendants in their
understanding that the ELCRA does not prohibit sexual-orientation discrimination. Since
the ELCRA became effective in 1977, there have been numerous proposals to amend it to
include sexual orientation. In 1980, just a few years after the ELCRA was enacted,
Representative David Evans organized a statewide citizens’ task force to discuss amending
the ELCRA to include that language. See MDCR Report on LGBT Inclusion at 5. A few
years after that, in 1983, Representative James Dressel introduced a bill—the “Dressel
Amendment” (HB 5000)—to amend the ELCRA to include sexual orientation. See
Lindstrom, Remembering a Pioneering Moment in Gay Rights in the Legislature, Gongwer
(March 7, 2013) (accessed July 24, 2022)
[https://perma.cc/D9NY-4GFC]. In 2005, Representative Chris Kolb introduced a bill to
amend the ELCRA to prohibit both sexual-orientation and gender-identity
discrimination. See Miller, Once Promising, Kolb’s LGBT Bills Fizzle, The Michigan
Daily (February 14, 2006) (accessed July 24, 2022) [https://perma.cc/P926-
8RH9]. A similar effort was made in 2014, when Representative Frank Foster introduced
a bill that would have added sexual orientation to the ELCRA. See Oosting, ‘Historic’
Gay Rights Hearing Ends Without Vote on Michigan Anti-Discrimination Proposals,
MLive (December 3, 2014) (accessed July 24, 2022)
[https://perma.cc/L93S-BXGJ] (quoting Foster acknowledging that some states “already
have this type of legislation, some as far back as the 1970s”) (emphasis added). All told,
since 1990, the Legislature has considered, and rejected, 22 bills that would have added
sexual orientation to the ELCRA. See 2021 SB 208, 2021 HB 4297, 2019 SB 351, 2019
HB 4997, 2017 SB 424, 2017 HB 4689, 2015 SB 0315, 2015 HB 4538, 2014 SB 1053,
2014 HB 5959, 2014 HB 5804, 2012 SB 1063, 2009 HB 4192, 2007 HB 4160, 2005 SB
787, 2005 HB 4956, 2003 SB 609, 2003 HB 4850, 2001 HB 4661, 1999 HB 5107, 1992
HB 6222, and 1990 HB 5993.
While the majority opinion correctly notes that there are myriad reasons why
legislators might have wanted to amend the ELCRA, we cannot and should not rule out the
most obvious and straightforward explanation: as competent users of the English language,
they fully believed that, as written, the ELCRA did not prohibit what they wanted it to
prohibit, which is precisely why they tried to amend it. This postenactment history is not
28
Finally, by consulting the Corpus of Historical American English (the COHA), 72 we
have strong evidence that the 1970s public understood that the ELCRA would prohibit sex
discrimination—differential, negative treatment of members of one sex vis-à-vis members
of the other sex 73—not sexual-orientation discrimination. Availing ourselves of a
relatively new tool of statutory interpretation, corpus linguistics, 74 and performing a search
dispositive as to the ELCRA’s original public meaning, but it is certainly not, per the
majority opinion’s characterization, evidence that is hopelessly inscrutable.
Moreover, the public has not understood the ELCRA to prohibit sexual-orientation
discrimination. In 2020, some Michiganders launched a ballot initiative that would have
extended the ELCRA’s protections to cover sexual orientation and gender identity. See
Knoppow, New Coalition Seeks to Amend ELCRA via Citizen Initiative, PrideSource
(January 16, 2020) (accessed July 24, 2022) [https://perma.cc/R4C7-QWMQ]. This
ballot-initiative effort failed. See Fair & Equal Mich v Bd of State Canvassers, 508 Mich
967 (2021) (denying the plaintiff’s complaint for mandamus, sought in response to the
Board of State Canvassers’ unanimous conclusion that the plaintiff’s petition to add sexual
orientation and gender identity to the ELCRA did not garner sufficient signatures to be
placed on the ballot). Even so, like the legislators who attempted to amend the ELCRA to
include sexual orientation after it became law, the most obvious and straightforward
explanation for why these citizens started a ballot initiative to amend the ELCRA is that
they believed that the ELCRA did not prohibit what they wanted it to prohibit: sexual-
orientation discrimination.
72
The COHA is a database of nearly 406 million words and around 107,000 English texts—
newspapers, popular magazines, fiction and nonfiction books—published between 1810
and 2009. See Alatrash et al, CCOHA: Clean Corpus of Historical American English,
Proceedings of the 12th Conference on Language Resources and Evaluation (May 2020),
pp 6958-6959, available at (accessed July
24, 2022) [https://perma.cc/XFR3-CQ6Z].
73
See note 40 of this opinion (citing and discussing Radtke, 442 Mich at 379; Diamond,
265 Mich App at 683; Oncale, 523 US at 80, quoting Harris, 510 US at 25 (Ginsburg, J.,
concurring); On the Basis of Identity, 43 Harv J L Pub Policy at 390; Weinberger, 420 US
at 654).
74
This Court has used this method previously. See Harris, 499 Mich at 347-349.
29
for “sex discrimination”—which is what the ELCRA declares unlawful—we note that
every single one of the 20 search results generated for the decade preceding the ELCRA’s
passage into law (i.e., 1966–1976) pertains to differential, negative treatment of persons in
terms of gender. There are no references to sexual-orientation discrimination in any of
those COHA search results. Not even a hint.
For these reasons, it is a clear violation of the Michigan Constitution’s separation of
powers for this Court to add by judicial fiat a category to the ELCRA that was specifically
rejected by the enacting Legislature and understood for more than 40 years to not exist in
the ELCRA by the governmental institutions principally charged with enforcing it, not to
mention a former governor, numerous legislators, and informed members of the public. 75
Consequently, we should not read the ELCRA to accomplish something that it plainly and
75
The majority opinion relies on Oncale, 523 US at 79, for its expansive reading of the
ELCRA. But this reliance is misplaced. Oncale stated that “statutory prohibitions often
go beyond the principal evil to cover reasonably comparable evils” and that “it is ultimately
the provisions of our laws rather than the principal concerns of our legislators by which we
are governed.” Id. It is unremarkable that a statutory provision might cover circumstances
that its enactors did not clearly foresee would arise or even ones that they did not
specifically intend for it to cover. For example, given the social conditions of the historical
moment in which the ELCRA was passed, most legislators probably thought that the
ELCRA’s prohibition on discrimination “because of . . . sex” would help (only) women, at
least as a practical matter. But that does not change the reality that the reasonable import
of the ELCRA’s words also obviously applies to men, and we cannot limit their scope
based on what legislators thought they were accomplishing because the plain and
reasonable meaning of those words covers men as well as women. But that is not the case
with sexual orientation. As I have been at pains to demonstrate, to discriminate based on
sex as opposed sexual orientation “implicates two distinct societal concerns, reveals two
distinct biases, imposes two distinct harms, and falls within two distinct statutory
prohibitions.” Bostock, 590 US at ___; 140 S Ct at 1835 (Kavanaugh, J., dissenting). Thus,
the two forms of discrimination are not “reasonably comparable evils,” Oncale, 523 US at
79, in the same way that discrimination based on sex—regardless of which sex it is
perpetrated against—is.
30
indisputably would have accomplished had sexual orientation been expressly included in
it, especially when we know that the Legislature knew how to achieve that goal if it had
wanted to achieve it, given that it has done so in other statutes. 76
That the Legislature considered adding sexual orientation to the ELCRA but
ultimately chose not to do so materially distinguishes this case from Bostock, on which the
majority opinion is patterned, 77 thereby requiring a different outcome. Unlike the 88th
Congress (1963–1965) that passed Title VII, our Legislature, in its 78th legislative session
(1975–1976), is known to have explicitly considered, but ultimately rejected, adding sexual
orientation as a protected class under the ELCRA. Why it did not include sexual
orientation, even if such information could be known with confidence, is irrelevant. When
the Legislature “has considered certain language and rejected it in favor of other language,
the resulting statutory language should not be held to explicitly authorize what the
Legislature explicitly rejected.” 78 That is precisely the situation here. Thus, this Court
should not read the ELCRA to cover something that the Legislature specifically and
explicitly did not craft it to cover. 79 To hold otherwise runs afoul of the people’s right to
govern themselves through their elected representatives in the Legislature.
76
See MCL 28.257a; MCL 141.1361(10)(a) and (b).
77
See ante at 18 (stating that Bostock “offers a straightforward analysis of the plain
meaning of analogous statutory language” and “agree[ing] with its reasoning”); see also
id. at 18 n 12 (further defending its reliance on Bostock).
78
In re MCI Telecom Complaint, 460 Mich at 415 (emphasis added).
79
The majority opinion takes the position that because only a subset of the Legislature—
the Committee, not a majority of the Legislature or the entire Legislature—made the choice
to exclude sexual orientation as a protected class under the ELCRA, its exclusion by the
Committee has no bearing on a proper interpretation of the ELCRA. This is incorrect. For
31
III. CONCLUSION
This Court’s function is to interpret and apply the laws that the Legislature writes.
That is not what the majority opinion has done. Instead, it analyzes the words of the
ELCRA in a vacuum, stripped from their relevant and critical historical-linguistic
context—context that is necessary to make them fully intelligible and to preserve
Michiganders’ right to self-government and the constitutional separation of powers.
Seizing on the words of the ELCRA in isolation, the majority opinion is thereby able to
one thing, the 1975–1976 Legislature itself chose the committee system as its decision-
making mechanism. We should not ignore that choice, especially when we have relied on
less compelling evidence than we have here to inform our understanding of a statute’s
meaning. See People v Arnold, 502 Mich 438, 460-462, 468; 918 NW2d 164 (2018) (in
deciding whether to construe the phrase “1 day to life” in MCL 750.335a(2)(c) as a
mandatory or as an optional alternative, the Court looked to how the phrase was understood
by the “Governor’s Study Commission on the Deviated Criminal Sex Offender,” which in
1949 was appointed by then Governor G. Mennen Williams to offer recommendations to
amend the second Goodrich Act, 1939 PA 165, some of which the Legislature adopted).
Moreover, it is absurd to say that because only the Committee’s eight members
explicitly voted on whether to include sexual orientation in the ELCRA, we therefore
cannot know what any other legislators thought of the phrase’s resulting absence in the bill.
The Committee is not hermetically sealed off from the rest of the Legislature; its members’
actions are known to the other legislators. The Committee’s decision not to include sexual
orientation in the ELCRA, therefore, would have been common knowledge to the rest of
the Legislature, whose members are competent users of the English language. For the
reasons I have explained, the choice to exclude sexual orientation strongly militates against
reading the ELCRA to cover it. See LaGuire, 440 Mich at 396-397 (BOYLE, J., concurring
in part) (“[W]here the Legislature has affirmatively rejected language that would support
an interpretation of a statute, that rejection evidences a legislative intent toward a contrary
construction.”); id. at 397 n 21 (collecting cases in support); Miller, 410 Mich at 566(explaining that the Court is “aided in discovering legislative intent . . . by examining the
proposed legislation [that the Legislature] considered and rejected, contrasted with the
provisions as finally adopted”); In re MCI Telecom Complaint, 460 Mich at 415 (“Where
the Legislature has considered certain language and rejected it in favor of other language,
the resulting statutory language should not be held to explicitly authorize what the
Legislature explicitly rejected.”). See also Bush, 484 Mich at 173-174; Univ Med Affiliates,
PC, 142 Mich App at 140; Elliott, 166 Mich App at 17.
32
declare them to mean something that nobody for more than 40 years seriously believed that
they meant. The best interpretation of the ELCRA, in light of the available evidence about
its original public meaning, is that its prohibition on discrimination in public
accommodations “because of . . . sex” does not encompass a prohibition on sexual-
orientation discrimination. This is all the more obvious given that the Legislature
specifically and explicitly considered including sexual orientation as a protected class
under the ELCRA but ultimately did not. Though I take no issue with today’s outcome,
because I do not recognize the manner in which it has been achieved by the majority
opinion to be faithful to the judicial role, I dissent.
Brian K. Zahra
33
STATE OF MICHIGAN
SUPREME COURT
ROUCH WORLD, LLC, and UPROOTED
ELECTROLYSIS, LLC,
Plaintiffs-Appellees,
v No. 162482
DEPARTMENT OF CIVIL RIGHTS and
DIRECTOR OF THE DEPARTMENT OF
CIVIL RIGHTS,
Defendants-Appellants.
VIVIANO, J. (dissenting).
Justice ZAHRA’s thorough dissent cogently explains why the original public
meaning of “sex” when the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et
seq., was passed did not and could not encompass “sexual orientation.” I agree with the
conclusion he reaches. I write separately, however, to explain how the majority mangles
another aspect of the ELCRA. The relevant statutory provision, MCL 37.2302(a), prohibits
certain discriminatory actions taken “because of . . . sex,” among other things. Properly
interpreted, this requires that the defendant maintain some prejudice, bias, animus, or belief
about “sex” or the other characteristics protected by the statute. In other words, when
someone discriminates against another person “because of” that person’s “sex,” the
discrimination results from a belief about or animus against that person’s sex. Only once
this threshold element is satisfied does one need to consider the degree to which that belief
or animus motivated the defendant, e.g., whether the discriminatory motive must be a but-
for cause.
Here, that threshold is not satisfied: discrimination on the basis of one’s sexual
orientation is not discrimination because of some prejudice, bias, animus, or belief about
the male sex or the female sex. Consequently, we need not decide whether to adopt a but-
for standard. But even if that standard applied, the majority still reaches the wrong
outcome. A proper application of the but-for test takes into account the defendant’s motive.
That means where, as here, no belief or animus about biological sex has been shown, “sex”
cannot be a but-for cause of discriminatory actions. Accordingly, I dissent.
I. THE TEXT REQUIRES A DISCRIMINATORY MOTIVE
The ELCRA’s general provision states:
The opportunity to obtain employment, housing and other real estate,
and the full and equal utilization of public accommodations, public service,
and educational facilities without discrimination because of religion, race,
color, national origin, age, sex, height, weight, familial status, or marital
status as prohibited by this act, is recognized and declared to be a civil right.
[MCL 37.2102(1).]
Other sections more fully implement this provision. The section that Rouch World
allegedly violated is MCL 37.2302:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service because of religion, race, color,
national origin, age, sex, or marital status.[1]
1
Another section contains similar language against employer discrimination:
2
The relevant inquiry is whether an individual is subject to certain adverse actions “because
of” his or her “sex.” MCL 37.2302(a).
I believe that the majority’s decision today, by myopically focusing on the term
“because of,” fails to adequately account for the original meaning of the full text of MCL
37.2302(a). The statute requires a link between the specified discriminatory actions and a
specified protected class or characteristic. When the entire section is considered, it is clear
that the connection must be the defendant’s discriminatory motive or intent, i.e., he or she
must take the discriminatory action because of some belief or animus with regard to the
protected characteristic. The but-for test might still fit within this framework, explaining
the degree to which the belief or animus must motivate the defendant. But it is unnecessary
to decide whether the but-for test or some alternative standard (such as the motivating-
factor test, discussed below) applies when a discriminatory motive or intent has not been
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment, because of
religion, race, color, national origin, age, sex, height, weight, or marital
status.
(b) Limit, segregate, or classify an employee or applicant for
employment in a way that deprives or tends to deprive the employee or
applicant of an employment opportunity, or otherwise adversely affects the
status of an employee or applicant because of religion, race, color, national
origin, age, sex, height, weight, or marital status.
(c) Segregate, classify, or otherwise discriminate against a person on
the basis of sex with respect to a term, condition, or privilege of employment,
including, but not limited to, a benefit plan or system. [MCL 37.2202(1).]
3
established. Put differently, to run afoul of the statute, a defendant must have some belief
or prejudice about the protected characteristic that prompts him or her to act. Only then is
it appropriate to ask how much of a role this motivation played in the action.
A. TEXTUAL ANALYSIS
The majority today eschews any focus on intent and, in doing so, departs from the
ordinary meaning of the statute. Following the lead of the United States Supreme Court,
the majority here finally adopts the but-for gloss on “because of.” The centerpiece of this
analysis comes from Bostock v Clayton Co, 590 US___, ___; 140 S Ct 1731, 1739; 207 L
Ed 2d 218 (2020):
And, as this Court has previously explained, “the ordinary meaning of
‘because of’ is ‘by reason of’ or ‘on account of.’ ” University of Tex.
Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 [133 S Ct 2517;
186 L Ed 2d 503] (2013) (citing Gross v. FBL Financial Services, Inc., 557
U. S. 167, 176 [129 S Ct 2343; 174 L Ed 2d 119] (2009); quotation altered).
In the language of law, this means that Title VII’s “because of” test
incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation.
Nassar, 570 U. S., at 346, 360. That form of causation is established
whenever a particular outcome would not have happened “but for” the
purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test
directs us to change one thing at a time and see if the outcome changes. If it
does, we have found a but-for cause.
This can be a sweeping standard. Often, events have multiple but-for
causes. So, for example, if a car accident occurred both because the
defendant ran a red light and because the plaintiff failed to signal his turn at
the intersection, we might call each a but-for cause of the collision. Cf.
Burrage v. United States, 571 U. S. 204, 211–212 [134 S Ct 881; 187 L Ed
2d 715] (2014). When it comes to Title VII, the adoption of the traditional
but-for causation standard means a defendant cannot avoid liability just by
citing some other factor that contributed to its challenged employment
decision. So long as the plaintiff’s sex was one but-for cause of that decision,
that is enough to trigger the law. See ibid.; Nassar, 570 U. S. at 350.
4
The first term to consider in MCL 37.2302(a) is “because of.” The dictionary
definition of that term is “by reason of; on account of.” American Heritage Dictionary (2d
college ed, 1982), p 166. See also Webster’s New Collegiate Dictionary (1976), p 98
(same); The Random House Dictionary of the English Language: Second Unabridged
Edition (1987) (defining “because of” as “by reason of; due to”), p 184; The Oxford English
Dictionary (2d ed, 1989), p 41 (defining “because of” as, relevantly, “[b]y reason of, on
account of”). “Reason” is relevantly defined as “a basis or cause, as for some belief, action,
fact, event, etc. . . .” The Random House Dictionary of the English Language: Second
Unabridged Edition (1987). Thus, a person can be said to take an action “because of” sex
when sex was a “cause” or “basis” of the person’s act.
The words “cause” and “basis” do a lot of work here. “Cause” is defined as “the
reason or motive for some human action[.]” Id. Put differently, it is “[a] fact, condition of
matters, or consideration, moving a person to action; ground of action; reason for action,
motive.” The Oxford English Dictionary (2d ed, 1989). Thus, based purely on dictionary
definitions, sex is a “cause” when it is the reason, motive, or intent behind the person’s
action—when it is the fact or consideration that leads a person to take an action. “Basis”
is similarly defined as “the groundwork or first principle; that which supports;
foundation . . . .” Webster’s New Twentieth Century Dictionary: Unabridged (2d ed,
1977). Sex is the “basis” for an act, then, when it supports or provides a foundation for the
act—thus, when the act is discriminatory, sex is the basis when the actor has a prejudice,
bias, animus, or belief with regard to a person’s sex.
That the motive or intent must constitute a prejudice, bias, or animus against the
protected characteristic is readily apparent from the broader statutory context. Although
5
the ELCRA does not contain the phrase “discriminate against”—which is found in the
federal counterpart, 42 USC 2000e-2(a)(1)—the requirement of discriminatory animus is
inherent in MCL 37.2302(a). 2 Indeed, the general ELCRA provision, MCL 37.2102(1),
expressly prohibits “discrimination because of” various protected characteristics. MCL
37.2302(a) effectuates this prohibition with regard to certain public accommodations. As
noted, this provision states that a person shall not “[d]eny an individual the full and equal
enjoyment of” certain services, goods, or accommodations. MCL 37.2302(a). To
“discriminate” means “to make a distinction in favor of or against a person or thing on the
basis of the group, class, or category to which the person or thing belongs rather than
according to actual merit; show partiality[.]” The Random House Dictionary of the English
Language: Second Unabridged Edition (1987), p 564. To deny someone access to the
goods, services, or accommodations on the basis of his or her sex is obviously a form of
discrimination, i.e., it is making a distinction against the person on the basis of the person’s
sex. Therefore, while MCL 37.2302(a) lacks the phrase “discriminate against,” the
statute’s language means essentially the same thing but is stated more specifically with
regard to how the discrimination would occur, i.e., the denial of the good, service, or
accommodation. 3
2
The federal statute makes it unlawful to “discriminate against any individual with respect
to [employment matters] . . . because of such individual’s . . . sex[.]” 42 USC 2000e-2(a)(1).
3
This conclusion is further supported by MCL 37.2103(i), which is part of the general
definitions section applicable to all of ELCRA. That provision states, “[d]iscrimination
because of sex includes sexual harassment . . . .” “Sexual harassment” is defined to include
conduct that “substantially interfere[s] with an individual’s . . . public accommodations or
public services . . . .” MCL 37.2103(i)(iii). In this light, then, the definitional section,
6
Discrimination naturally requires a prejudice, bias, animus, or some belief about a
protected class or characteristic. As one scholar has noted, the term “discriminate” is often
used with “prejudice,” demonstrating a semantic link between the two words. Phillips, The
Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore
Textualist) Principle of Compositionality (May 11, 2020) (unpublished manuscript), p 5,
available at (accessed July 24, 2022). Dictionaries from the relevant period frequently
defined “discriminate against” in a manner that “refers to mistreatment based on prejudice
directed at members of a discrete group.” 4 Thus, discrimination against a person “because
of . . . sex,” the scholar concluded, “refers only to adverse treatment that rests on prejudice
(or bias)—i.e., loose generalizations or other unfair beliefs, attitudes (indifference,
MCL 37.2103(i), indicates that the actions prohibited by MCL 37.2302(a) constitute
discrimination against a person.
4
Id. at 5. As Phillips states:
For instance, Funk & Wagnalls Standard College Dictionary (10th ed. 1963)
defines discriminate as “[t]o act toward someone or something with partiality
or prejudice: to discriminate against a minority; to discriminate in favor of
one’s friends.” Likewise, Webster’s New World Dictionary (1960), defines
the relevant sense of discriminate as “to make distinctions in treatment; show
partiality (in favor of) or prejudice (against).” The idea of prejudice or bias
against members of a certain group is also present in dictionary definitions
emphasizing that discrimination involves action based on someone’s
membership in a group “rather than according to actual merit.” [Id. at 5-6,
quoting The Random House Dictionary (1966–1973).]
Phillips further notes that Webster’s Third International Dictionary (1961) defines
“discriminate” as “ ‘to make a difference in treatment or favor on a class or categorical
basis in disregard of individual merit ([discriminate] in favor of your friends) (habitually
[discriminate] against a certain nationality).’ ” Id. at 6 n 19.
7
discounting of interests, distaste, antipathy, etc.)—directed at some or all men, or at some
or all women.” Id. at 3.
Accordingly, the ELCRA focuses on the motives and beliefs of the defendant with
regard to the characteristic at issue. The question in a sex-discrimination case, then, is
“whether the defendant employer took a particular adverse employment action against a
particular female employee because she is a woman or against a particular male employee
because he is a man.” Hively v Ivy Tech Community College of Indiana, 853 F3d 339, 365
(CA 7, 2017) (Sykes, J., dissenting).
B. CASELAW
Our caselaw provides ample support for the conclusion that the ELCRA requires
the defendant to maintain a discriminatory motive concerning the characteristics protected
by the statute. This motive represents a prejudice, bias, animus, or belief concerning the
characteristic itself or people with the characteristic. As this Court has observed, the
ELCRA and similar statutes “are addressed to ‘the prejudices and biases’ one race, sex, or
religion bears against another.” Boscaglia v Mich Bell Tel Co, 420 Mich 308, 316; 362
NW2d 642 (1984) (citation omitted). We have similarly observed that the ELCRA “seeks
to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.”
Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984).
These prejudices and biases are necessarily aimed at the protected characteristics
and statuses listed in the statute. In holding that “[t]he clear, unambiguous language of [the
ELCRA] protects status, not conduct,” we have explained that the statute requires
“evidence of discrimination based on one of the protected characteristics” or some “link
8
between the conduct [the plaintiff engaged in] and a protected status.” Veenstra v
Washtenaw Country Club, 466 Mich 155, 160, 165-166; 645 NW2d 643 (2002).
Elaborating, we described the “direct function of the words ‘because of’ ” as follows: the
ELCRA “merely prohibits actions that are taken with regard to certain types of statuses,
‘because of’ these characteristics. It does not prohibit actions that are legitimately taken
for any other reason.” Id. at 165 n 7 (some emphasis added). Thus, the statute proscribes
discrimination that arises from prejudices or biases against one of the listed characteristics
or statuses.
In keeping with this understanding, our caselaw has, until today, always stressed
that the discriminatory action must be causally linked to the defendant’s motives and intent.
This is true even though we have—again, until today—never finally settled on a test for
determining the degree to which those motives must explain (i.e., be causally related to)
the discriminatory action. We have sometimes favored a but-for test and sometimes a
motivating-factor test. See Hrapkiewicz v Wayne State Univ Bd of Governors, 501 Mich
1067, 1067-1069 (2018) (MARKMAN, C.J., dissenting) (discussing the caselaw).
It appears that our first case to mention the but-for standard was Matras v Amoco
Oil Co, 424 Mich 675; 385 NW2d 586 (1986). That age-discrimination case was originally
brought under the ELCRA’s predecessor (which lacked a provision on sex discrimination),
the Fair Employment Practices Act (FEPA), MCL 423.301 et seq. 5 As Matras
5
“The FEPA was repealed upon passage of the [ELCRA], 1976 PA 453, effective
March 31, 1977[.]” Dep’t of Civil Rights ex rel Parks v Gen Motors Corp, 93 Mich App
366; 287 NW2d 240 (1979).
9
demonstrates, we have long understood that discrimination cases require discriminatory
motive:
A jury can find that the discharge was “because of age” even if age
was not the sole factor. As accurately expressed in the Michigan Standard
Jury Instruction, “[age] does not have to be the only reason, or even the main
reason, but it does have to be one of the reasons which made a difference in
determining whether or not to [discharge] the plaintiff.” Another formulation
would be that age is a determining factor when the unlawful adverse action
would not have occurred without age discrimination. Alternative
expressions of the determining factor concept are “but for causation” or
“causation in fact.”
In the instant case, the question therefore becomes whether there was
sufficient evidence, when the evidence and inferences therefrom are viewed
in a light most favorable to Matras, for reasonable jurors to conclude that
age discrimination was a determining factor in the decision to discharge him.
[Matras, 424 Mich at 682-683 (emphasis added; citations omitted; alterations
in original).]
We offered varying formulations of the test—“made a difference,” “determining factor,”
and “but-for causation”—but embedded in each was the notion that discriminatory motive
is critical.
Other cases applying a but-for test likewise indicate that the defendants’ motives
are a key element. In Radtke v Everett, 442 Mich 368, 383-384; 501 NW2d 155 (1993),
for example, the plaintiff alleged sexual “harassment on the basis of sex” when her
employer allegedly held her down and tried to kiss her. The defendant argued that his
conduct was not sexual but romantic. Rejecting this, we stated that “plaintiff need only
show that ‘but for the fact of her sex, she would not have been the object of harassment.’ ”
Id. at 383 (citation omitted). In concluding that she had made this showing, we stated,
“The overtures at issue were certainly inferentially sexually motivated: but for her
womanhood, Everett would not have held plaintiff down and attempted to solicit romance,
10
if not sex, from her.” Id. at 384. While this applies the but-for test, it shows that the test
cannot be used without consideration of the defendant’s motivation.
More recently, in Hecht v Nat’l Heritage Academies, Inc, we stated: “The ultimate
question in an employment discrimination case is whether the plaintiff was the victim of
intentional discrimination. In our caselaw, we have interpreted the CRA to require ‘ “but
for causation” or “causation in fact.” ’ We reaffirm that construction here.” Hecht, 499
Mich 586, 606; 886 NW2d 135 (2016), quoting Matras, 424 Mich at 682 (citation omitted).
As in Radtke, we seemed to understand the but-for test as a tool for measuring whether the
discriminatory intent was a sufficient cause of the adverse employment action. Again, we
stated, “The ultimate question in an employment discrimination case is whether the
plaintiff was the victim of intentional discrimination.” Hecht, 499 Mich at 606, citing
Reeves v Sanderson Plumbing Prod, Inc, 530 US 133, 153; 120 S Ct 2097; 147 L Ed 2d
105 (2000) (“The ultimate question in every employment discrimination case involving a
claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.”).
Our cases have also indicated that the term “because of” in the ELCRA requires a
showing that consideration of the protected characteristic was a motivating factor in the
defendant’s decision. In Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515
(2001), we explained that if direct evidence of the prohibited “bias” is produced, the case
can proceed as in any other civil matter. “Direct evidence,” we said, is “ ‘evidence which,
if believed, requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer’s actions.’ ” Id. (citation omitted). If such evidence is unavailable,
then a burden-shifting test applies, under which a rebuttable presumption arises if the
11
plaintiff presents a prima facie case of discrimination: “evidence that (1) she belongs to a
protected class, (2) she suffered an adverse employment action, (3) she was qualified for
the position, and (4) the job was given to another person under circumstances giving rise
to an inference of unlawful discrimination.” Id. at 463. This raises a presumption of
discrimination which can be rebutted by evidence of a legitimate, nondiscriminatory reason
for its decision. Id. at 464. If this is shown, then the plaintiff must demonstrate the
evidence could lead a reasonable trier of fact to believe that “discrimination was a
motivating factor for the adverse action . . . .” Id. at 465 (quotation marks and citation
omitted). 6
The burden-shifting test demonstrates that discriminatory motives are at the heart
of the analysis. The test is geared toward determining whether a discriminatory motivation
prompted the challenged action. This, in turn, requires deciding whether any
nondiscriminatory rationales were mere pretexts. Indeed, in Hazle, we went on to say that
the “ultimate factual inquiry made by the jury[] [is] whether consideration of a protected
characteristic was a motivating factor, namely, whether it made a difference in the
contested employment decision.” Hazle, 464 Mich at 466 (emphasis added).
6
It is generally understood that the but-for test is more rigorous and requires a higher
showing than the so-called “motivating factor” standard, in which “a plaintiff [can] prevail
merely by showing that a protected trait like sex was a ‘motivating factor’ in a defendant’s
challenged employment practice. . . . Under this more forgiving standard, liability can
sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged
decision.” Bostock, 590 US at ___; 140 S Ct at 1739-1740; see also Hrapkiewicz, 501
Mich at 1068 (MARKMAN, C.J., dissenting) (stating that the but-for test “imposes a
considerably higher causation standard than” the motivating-factor test).
12
Likewise, in Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 134-
135; 666 NW2d 186 (2003), we confirmed that discriminatory intent must be shown:
Under either the direct evidence test or the [burden-shifting] test, a
plaintiff must establish a causal link between the discriminatory animus and
the adverse employment decision. . . . Under the direct evidence test, a
plaintiff must present direct proof that the discriminatory animus was
causally related to the adverse employment decision.
The opinion plainly refers to the central requirement of “discriminatory animus” that must
be causally related to the discriminatory act. Id.Consequently, although our Court has used both the motivating-factor and but-for
tests, we have always treated the defendant’s intent or motivation as the lodestar of the
analysis. See Lytle v Malady, 456 Mich 1, 33; 566 NW2d 582 (1997) (“The bottom line is
that there must always be evidence upon which reasonable minds could conclude that
discrimination was the true motive for the decision.”), vacated in part on other grounds 458
Mich 153 (1998); Town v Mich Bell Tel Co, 455 Mich 688, 704; 568 NW2d 64 (1997)
(“ ‘[T]he factual dispute at issue [in a sex-discrimination action] is whether discriminatory
animus motivated the employer . . . .’ ”) (citation omitted). That is, we have always looked
to what actually motivated the defendant in taking a discriminatory action. And we have
likewise indicated that the statute covers discrimination based on prejudice, bias, animus,
or beliefs about a certain characteristic.
Others, including the United States Supreme Court, have endorsed this view in cases
addressing similar statutory language. 7 Although the Supreme Court in Gross, 557 US at7
Federal precedent “may often be useful as guidance in this Court’s interpretation of laws
with federal analogues . . . .” Garg v Macomb Co Comm Mental Health Servs, 472 Mich
13176, indicated that the phrase “because of” entailed a but-for analysis, it also went on to
express its statutory interpretation in the language of the dictionary, stating that “the
ordinary meaning of the [Age Discrimination in Employment Act’s] requirement that an
employer took adverse action ‘because of’ age is that age was the ‘reason’ that the
employer decided to act.” Elsewhere, the Supreme Court relied on this portion of Gross to
conclude “that Title VII retaliation claims require proof that the desire to retaliate was the
but-for cause of the challenged employment action.” Nassar, 570 US at 352 (emphasis
added). In other words, in the context of an anti-retaliation provision of Title VII, the Court
focused on the defendant’s desire or intent. See generally Epstein, Forbidden Grounds:
The Case Against Employment Discrimination Laws (Cambridge: Harvard University
Press, 1995), p 160 (noting that in disparate treatment cases, the issue is whether “the
defendant’s conduct was actuated by some illegitimate motive”).
Justice Alito has also taken this approach. See Texas Dep’t of Housing &
Community Affairs v Inclusive Communities Project, Inc, 576 US 519, 560; 135 S Ct 2507;
192 L Ed 2d 514 (2015) (Alito, J., dissenting). “What ‘because of’ means is no mystery,”
Justice Alito wrote, pointing to Gross’s use of the ordinary dictionary definition. Id. “Nor
is this understanding of ‘because of’ an arcane feature of legal usage. When English
speakers say that someone did something “because of” a factor, what they mean is that the
factor was a reason for what was done.” Id. “Put another way, ‘the terms [after] the
“because of” clauses in the [Fair Housing Act (FHA)] supply the prohibited motivations
for the intentional acts . . . that the Act makes unlawful.’ ” Id. at 561 (citation omitted).
263, 283; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005). But “federal precedent
remains only as persuasive as the quality of its analysis.” Id.14
Thus, “[u]nder a statute like the FHA that prohibits actions taken ‘because of’ protected
characteristics, intent makes all the difference.” Id. at 561-562.
In a similar context, the Supreme Court has further described how discrimination
operates with regard to the relationship between intent and a protected characteristic. In
Bray v Alexandria Women’s Health Clinic, 506 US 263; 113 S Ct 753; 122 L Ed 2d 34(1993), the Court examined 42 USC 1985(3), which prohibits private conspiracies that
“depriv[e] . . . any person or class of persons of the equal protection of the laws . . . .” This
language, the Court explained, required showing (among other things) “that ‘some racial,
or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the
conspirators’ action’ . . . .” Bray, 506 US at 268, quoting Griffin v Breckenridge, 403 US
88, 102; 91 S Ct 1790; 29 L Ed 2d 338 (1971). The prohibition centered on “ ‘invidiously
discriminatory motivation . . . .’ ” Bray, 506 US at 268, quoting Griffin, 403 US at 102.
The question in Bray was whether this statute “provide[d] a federal cause of action against
persons obstructing access to abortion clinics.” Bray, 506 US at 266.
The Court first rejected the argument that the relevant “class” was “women seeking
abortion,” as such a group merely consisted of individuals desiring to engage in certain
conduct. Id. at 269. The more central argument in favor of finding a cause of action was
that efforts to prevent women from accessing abortion clinics amounted to class-based
discrimination against “women in general.” Id. The Court acknowledged that the
“animus” requirement was not limited to behavior that constituted “maliciously motivated,
as opposed to assertedly benign (though objectively invidious), discrimination against
women.” Id. at 270. In other words, the animus (or prejudice or bias) did not have to be
malicious, but it did need to be invidious. Moreover, and critically, the motivation had to
15
center on the protected characteristic itself. Discriminatory animus “does demand . . . at
least a purpose that focuses upon women by reason of their sex—for example (to use an
illustration of assertedly benign discrimination), the purpose of ‘saving’ women because
they are women from a combative, aggressive profession such as the practice of law.” Id.In Bray, there was no record evidence that the defendants had such an intent. Id.The Court thus went on to analyze the only other theories under which defendants might
still be liable: (1) if opposition to abortion necessarily evinced a sex-based intent, or (2)
“intent is irrelevant, and a class-based animus can be determined solely by effect.” Id.Both theories were wrong. Perhaps, the Court acknowledged, opposition to some activities
would be so irrational that it could only be explained by the fact that the activity “happen[s]
to be engaged in exclusively or predominantly by a particular class of people . . . .” Id. In
such circumstances, “an intent to disfavor that class can readily be presumed.” Id. But
opposition to abortion claimed “common and respectable reasons” aside from hatred or
condescension toward women as a class. Id. With regard to the need for intent, rather than
simply effects, the Court noted that “ ‘ “[d]iscriminatory purpose” . . . implies that the
decisionmaker . . . selected or reaffirmed a particular course of action at least in part
“because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’ ” Id.
at 271-272, quoting Personnel Administrator of Massachusetts v Feeney, 442 US 256, 279;
99 S Ct 2282; 60 L Ed 2d 870 (1979). Opposition to abortion, therefore, was not “ipso
facto sex discrimination.” Bray, 506 US at 273.
Bray demonstrates that discrimination “because of” of a characteristic requires some
prejudice, bias, animus, or belief about the protected characteristic. A belief about some
other characteristic or conduct—like opposition to a particular sexual orientation—does
16
not suffice. Even if only women engage in some conduct, opposition to that conduct does
not necessarily stem from some belief about the female sex. The mere effect on individuals
in a protected status is not enough without discriminatory intent related to that status. This
is simply how discrimination works. “Discrimination against persons . . . is necessarily
oriented toward them based on their membership in a certain type of social group.”
Stanford Encyclopedia of Philosophy, Discrimination (April 2020), § 1.1
(accessed July 24, 2022)
[https://perma.cc/YK2Q-J3WE]. Put differently, discrimination relates to the protected
characteristic rather than some other characteristic or conduct that is sometimes associated
with the protected characteristic.
Thus, the ordinary meaning of MCL 37.2302, focusing on the defendant’s
motivations, captures this commonsense view of discrimination. As two scholars recently
wrote of the nearly identical language in Title VII, “The statute proscribes employer
conduct based on the reasons that caused or explained the conduct (i.e., based on the
employer’s motivation), and not on other non-reason-based cases.” Berman &
Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame
L Rev 67, 99 (2021). It is true that, in some contexts, “because of” can mean something
other than “motivated by.” Id. at 100 n 166, citing Zatz, The Many Meanings of “Because
Of”: A Comment on Inclusive Communities Project, 68 Stan L Rev Online 68, 75 (2015)
(a brief comment arguing that motivation is not always necessary to the causal concepts
embedded in the term “because of”). But the scholars note that the other meanings are
motivated by nontextualist purposes, and they contend that “the communicative content of
‘because of’ in relevantly similar utterances [to that in Title VII]—say, contexts concerning
17
the wrongfulness or permissibility of acts undertaken by an agent—is most often
motivational, making the motivational reading the statute’s ‘ordinary meaning.’ ” Id.
C. MOTIVE CANNOT BE REMOVED FROM THE ANALYSIS
When motive is removed from the equation, causal statements about discrimination
make little sense. An example shows how this is true:
Suppose Libby intends to dine one evening at Riley’s Restaurant. En
route to Riley’s, Libby, a member of the local Libertarian Party, stops at the
Party’s office for a short organizational meeting. When arriving at Riley’s,
Libby is chagrined to learn that the restaurant’s last table was taken minutes
earlier and that it will be accommodating no more diners that evening.
Libby’s political affiliation was a but-for cause of Riley’s declining to serve
Libby: if Libby hadn’t been a member of the Libertarian Party, they’d have
arrived at Riley’s ten minutes earlier, in plenty of time to secure the last table.
But Riley’s did not decline to serve Libby “because of” Libby’s political
affiliation: that Libby is a Libertarian was unknown to Riley’s or any of its
agents and was no part of its decisional calculus. Were Libby to sue Riley’s,
alleging forbidden political-affiliation discrimination, they’d be laughed out
of court (twice over). The example generalizes: a fact or event can be a “but-
for cause” of some agent’s doing something without it being the case that the
agent did that thing “because of” that fact or event. (Here, to repeat, Libby’s
Libertarianism might have been a but-for cause of Riley’s not seating them,
without it being the case that Riley didn’t seat Libby “because of” Libby’s
Libertarianism.) To gloss the statutory phrase “because of” X to mean “by
reason of” or “on account of” is to affirm this critical point. [Bostock Was
Bogus, 97 Notre Dame L Rev at 99-100.]
One of the main problems in this example is that Libby’s libertarianism is not sufficient to
explain the result. That is, the fact that Libby is a Libertarian cannot adequately explain
why the restaurant declined to serve her—there are other more immediate factors that fully
explain the result, none of which involves any discriminatory motive. No one would say
that the restaurant denied Libby public accommodations because of her partisan affiliation.
The restaurant does not appear to care about that at all.
18
In a like manner, defendants who refuse accommodations or employment to
someone “because of” that person’s sexual orientation do not necessarily care about that
person’s biological sex. In fact, as in the restaurant example, such defendants need not
even know the person’s biological sex. See Bostock, 590 US at ___; 140 S Ct at 1758
(Alito, J., dissenting) (“Contrary to the Court’s contention, discrimination because of
sexual orientation or gender identity does not in and of itself entail discrimination because
of sex. We can see this because it is quite possible for an employer to discriminate on those
grounds without taking the sex of an individual applicant or employee into account. An
employer can have a policy that says: “We do not hire gays, lesbians, or transgender
individuals.” And an employer can implement this policy without paying any attention to
or even knowing the biological sex of gay, lesbian, and transgender applicants.”). How
can a defendant discriminate against a man because he is a man—or a woman because she
is a woman—without knowing that the target of the discrimination is actually a man? Such
a conclusion can be reached only if the threshold requirement for discriminatory motive or
intent is thrown out the window. Because otherwise, in these circumstances, the defendants
cannot possibly be acting out of an animus against or any belief about the male (or female)
biological sex.
In response to this observation, the majority appears to accept the proposition that
sexual orientation is so innately tied to biological sex that one cannot discriminate against
the former without also discriminating against the latter. The gist of the contention appears
to be that “[i]f a putative non-protected basis for discrimination conceptually depends on
the protected characteristics of the plaintiff, then the basis for discrimination is ‘because
of’ the relevant protected category as a matter of ordinary language.” Bostock Was Bogus,
19
97 Notre Dame L Rev at 88 (quotation marks and citation omitted). Justice ZAHRA fully
reveals the fallacy of this argument. 8 I would add that the argument is also incorrect
because, without the requirement of discriminatory motive regarding a protected
characteristic, this mode of analysis is hopelessly reductive. Consider the following
example:
Suppose A shoots B, a police officer, out of anti-police animus. In this case,
competent English speakers would agree that “A shot B because B is a police
officer.” Plausibly if roughly, a police officer is a person whose job is to
enforce the law, including by investigating crimes and making arrests. But
even if the concept of police officer depends upon and incorporates the
concept of a person, competent English speakers would firmly deny that “A
shot B because B is a person.” [Id.]
One cannot be a police officer without being a person, yet no one believes that the shooter
targeted the officer because he or she was a person. This is because the shooter had no
general animus against people—the animus was against police officers. These are different
8
As Justice ZAHRA has also ably demonstrated, no one at the time the ELCRA was passed
understood the meaning of the term “sex” to encompass sexual orientation. Further proof
of this is that, when the ELCRA was enacted, Michigan had a statute on the books
criminalizing sodomy. MCL 750.158. When the ELCRA passed in 1976, SCOTUS had
not yet rendered unconstitutional laws that made it a crime for same-sex couples to engage
in sodomy. See Lawrence v Texas, 539 US 558; 123 S Ct 2472; 156 L Ed 2d 508 (2003).
Thus, if defendant is correct here, that would mean that when the ELCRA passed, a
reasonable reader would have known that it prohibited discrimination against same-sex
couples despite the fact that it was then a crime for those same-sex couples to have sexual
relations. That cannot be correct. “When the meaning of a term is questionable, . . . courts
should ‘construe it to contain that permissible meaning which fits most logically and
comfortably into the body of both previously and subsequently enacted law.’ . . . This is
‘because it is our role to make sense rather than nonsense out of the corpus juris.’ ” In re
Certified Questions from the US Dist Court, Western Dist of Mich, 506 Mich 332, 404; 958
NW2d 1 (2020) (VIVIANO, J., concurring in part, dissenting in part), quoting West Virginia
Univ Hosps, Inc v Casey, 499 US 83, 100-101; 111 S Ct 1138; 113 L Ed 2d 68 (1991),
superseded by statute on other grounds. In light of this broader legal context, it is
nonsensical to believe that the public understood the ELCRA to protect sexual orientation.
20
things, just as an animus against a certain sexual orientation is not the same thing as an
animus against a particular sex. 9
All this shows that without some anchoring in a discriminatory motive that is linked
to a protected characteristic, the but-for test fails to place any meaningful limitations on the
analysis. But-for causation (also known as counterfactual causation) is transitive, such that
it can stretch back to the big bang: “if [event] e counterfactually depends on d (so d causes
e), and d counterfactually depends on c (so c caused d), then c causes e. This means that
the number of causes for any given event e is staggeringly large, in each case reaching back
to the big bang that apparently began this whole show.” Moore, For What Must We Pay?
Causation and Counterfactual Baselines, 40 San Diego L Rev 1181, 1220 (2003). One
might say in all seriousness, “But for the big bang, I would not have spilled this pasta sauce
on my shirt.” But no one would say that I spilled the sauce “because of” the big bang. 10
9
Professor Cass Sunstein also explains it well:
[I]magine if an English speaker, now or in 1964, says the following: “I am
opposed to discrimination because of sex. I am also opposed to
discrimination because of sexual orientation.” Does the speaker not
understand the English language? Is she being redundant? (The answer to
both questions is “no.”) Or suppose that an English speaker, now or in 1964,
says the following: “I am opposed to discrimination because of sex. But I
am not opposed to discrimination because of sexual orientation.” Is the
speaker contradicting himself? Is he making some sort of logical error?
Does he not understand the language? (The answer to all three questions is
“no.”) [Sunstein, Textualism and the Duck-Rabbit Illusion, 11 Cal L Rev
Online 463, 475 (2020).]
10
Despite the fact that this Court has stated that the “ultimate question” in discrimination
cases is whether “intentional discrimination” has occurred, Hecht, 499 Mich at 606
(emphasis added), the majority now declines to decide whether intent has anything to do
with an ELCRA claim. The notion that intent could be disregarded in a disparate treatment
claim—which is the type of claim at issue in the underlying proceeding—represents a
fundamental misunderstanding of discrimination law. As I have discussed at some length,
21
D. CONCLUSION AND RESPONSIVE ARGUMENTS
Consequently, I believe that, regardless of whether MCL 37.2302 involves a but-for
causation test, there is a threshold requirement that the majority ignores: discriminatory
motive or intent. The statute applies only if the defendant takes a prohibited action as a
result of a prejudice, bias, animus, or belief with regard to the particular protected
characteristic. For example, a man is discriminated against “because of” his sex if the
our cases have long held that disparate treatment claims require proof of discriminatory
motive or intent. See generally Forbidden Grounds, p 160.
There is another theory that permits discrimination claims based on effects alone:
disparate impact. These claims “allow courts to infer unlawful discrimination, wholly
without evidence of improper motive, and solely from the (perceived) disparate
consequences” of the challenged action. Id. As one scholar has noted, “the disparate
impact theory begins where intentional discrimination ends . . . .” See Selmi, Was the
Disparate Impact Theory a Mistake?, 53 UCLA L Rev 701, 706 (2006). Disparate impact
“has always been contrasted with racial animus and motive, and despite the familiar
refrains regarding how discrimination has become more subtle over time, we continue to
define intentional discrimination in the context of animus and consciously impermissible
motives.” Id. Unsurprisingly, this theory is controversial, arguably resting on the
assumption either that any disparity in outcome results from discrimination (even if from
past practices long discarded) or that the focus on outcomes is necessary to “correct for
imbalances that do not result from any unlawful conduct . . . .” Inclusive Communities
Project, Inc, 576 US at 555 (Thomas, J., dissenting). It is not apparent that we have ever
embraced this theory in circumstances like the present. Regardless, the sort of claim at
issue here involves disparate treatment, which requires discriminatory intent. Yet the
majority has decoupled intent from the statute. In some ways this is more radical, even,
than a disparate impact theory, which at least requires what it says—a disparate impact
upon a protected class. See Int’l Brotherhood of Teamsters v United States, 431 US 324,
336 n 15; 97 S Ct 1843; 52 L Ed 2d 396 (1977) (noting that disparate impact claims
“involve employment practices that are facially neutral in their treatment of different
groups but that in fact fall more harshly on one group than another and cannot be justified
by business necessity”). Here, there is no such discernable disparate impact on males as a
class or females as a class.
22
defendant acted because of the defendant’s bias, prejudice, animus, or belief with regard
to men. 11
My interpretation does not disturb the potential application of the ELCRA to
interracial marriage or sex stereotypes. One argument that has been put forward to justify
the result reached by the majority is that any other view of the statute would preclude the
ELCRA from prohibiting discriminatory actions because of interracial marriage. Amicus
American Civil Liberties Union (ACLU) says that an employer would violate the ELCRA
by discriminating against employees in interracial marriages because such discrimination
would be “because of . . . race.” This is true, the ACLU states, even though such a policy
applies equally to all races (just as a policy against homosexuals applies to members of
11
It might be contended that by focusing on a defendant’s view of a particular group, this
interpretation unduly focuses on a defendant’s treatment of groups rather than individuals,
whereas the statute protects individuals. The Supreme Court in Bostock, 590 US at ___;
140 S Ct at 1740, made such an argument, noting that the statute focused on the defendant’s
treatment of the individual plaintiff rather than its treatment of a group of which the
plaintiff is a member. Thus, according to Bostock, it is no defense for an employer who
“fires a woman for refusing his sexual advances” that “while he treated that individual
woman worse than he would have treated a man, he gives preferential treatment to female
employees overall.” Id. at ___; 140 S Ct at 1741. This is true, but irrelevant. In the
example, the employer made the sexual advances on the employee because she was a
women and the employer is sexually attracted to women. See Semeraro, We’re All
Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest To Distinguish Title
VII’s Meaning from the Public’s Expectations, 49 Hofstra L Rev 377, 407 (2021)
(“[F]inding a heterosexual man’s romantic advances unwelcome . . . [is] only [a] problem[]
to the employer if the employee is a woman.”). “Nor is it a defense,” Bostock stated, for
an employer to say it discriminates against both men and women because of sex.” Bostock,
590 US at ___; 140 S Ct at 1741. Again, this is true but irrelevant. If the employer is
misanthropic and hates women for being women and men for being men—or perhaps is
attracted to both men and women and makes sexual advances to both—then his actions are
taken on the basis of prejudices or biases about individuals based on their protected traits
(shared by groups).
23
both sexes). See also Bostock, 590 US at ___; 140 S Ct at 1765 (Alito, J., dissenting)
(noting the argument: “So if an employer is happy to employ whites and blacks but will
not employ any employee in an interracial relationship, how can it be said that the employer
is discriminating against either whites or blacks ‘because of such individual’s race’? This
employer would be applying the same rule to all its employees regardless of their race.”).
One immediate distinction between the present case and interracial marriage, however, is
the historical roots of the latter: “[H]istory tells us,” Justice Alito observed, that
discrimination on the basis of an interracial relationship “is a core form of race
discrimination.” Id.
Under my interpretation, the distinction between the two cases goes deeper. The
motivation in each situation is different. In the interracial-marriage context, the motivation
“has nothing to do with marriage, and everything to do with race: racism and white
supremacy. But opposition to same-sex marriage has nothing to do with sexism or male
(or female) supremacy.” Anderson, On the Basis of Identity: Redefining “Sex” in Civil
Rights Law and Faulty Accounts of “Discrimination”, 43 Harv J L & Pub Pol’y 387, 416-
417 (2020). Any animus against same-sex relationships does not similarly flow to one sex
or the other. See Hively, 853 F3d at 368 (Sykes, J., dissenting) (“[M]iscegenation laws are
inherently racist. They are premised on invidious ideas about white superiority and use
racial classifications toward the end of racial purity and white supremacy. Sexual-
orientation discrimination, on the other hand, is not inherently sexist. No one argues that
sexual-orientation discrimination aims to promote or perpetuate the supremacy of one
sex.”); cf. Anderson, Disagreement Is Not Always Discrimination: On Masterpiece
Cakeshop and the Analogy to Interracial Marriage, 16 Geo J Law & Pub Pol’y 123, 124
24
(2018) (rejecting the argument that individuals holding the view that marriage should be
between one man and one woman are motivated by animus rather than “traditions [that]
teach that there is a distinct value in the one-flesh union that only man and woman can
form, and in the kinship ties that such union offers children”).
In addition, my interpretation would not have any effect on the potential
applicability of the ELCRA to sex stereotypes. 12 The ACLU argues here that
discrimination on the basis of sexual orientation amounts to sex stereotyping because it
punishes an individual for failing to conform to sex-based expectations about his or her
behavior. Justice Alito responded to this very argument in his Bostock dissent, noting that
perhaps in some cases there are traits associated with homosexuals (that would be tolerated
or welcomed in a member of the opposite sex) that lead to discrimination. Bostock, 590
US at ___; 140 S Ct at 1764 (Alito, J., dissenting). That is not the case where the
discrimination stems directly from sexual orientation itself, rather than from traits
associated with that orientation. When defendants discriminate on the basis of sexual
orientation, they are not discriminating based on a trait solely related to men or to women.
Thus, a policy based on sexual orientation does not have a discernable effect on or aim
against one biological sex over the other. Neither sex is being “exposed to” adverse actions
“to which members of the other sex are not exposed.” Harris v Forklift Sys, Inc, 510 US
17, 25; 114 S Ct 367; 126 L Ed 2d 295 (1993) (Ginsburg, J., concurring) (“The critical
issue, Title VII’s text indicates, is whether members of one sex are exposed to
12
I do not mean to take any position on whether the ELCRA otherwise covers stereotyping
claims—my intent is only to show that such claims would not be precluded by my
interpretation of “because of.”
25
disadvantageous terms or conditions of employment to which members of the other sex are
not exposed.”).
Consider, too, that if the ACLU’s argument is correct, it is hard to see how
discrimination against heterosexuals would be covered by the statute. The United States
Court of Appeals for the Seventh Circuit has stated, “Viewed through the lens of the gender
non-conformity line of cases, Hively [the plaintiff] represents the ultimate case of failure
to conform to the female stereotype (at least as understood in a place such as modern
America, which views heterosexuality as the norm and other forms of sexuality as
exceptional): she is not heterosexual.” Hively, 853 F3d at 346. If Hively’s logic is correct,
what happens if a homosexual employer fires an employee for being heterosexual and not
homosexual? If heterosexuality is a stereotype of men and women, then homosexuality is
not—as a result, discrimination against an employee for not being homosexual (i.e., for
being heterosexual) would not punish that employee for failing to adhere to sex stereotypes.
The ELCRA would therefore protect discrimination “because of” sexual orientation only
in favor of homosexuality.
Accordingly, MCL 37.2302(a) does not prohibit discrimination “because of” sexual
orientation. Such discrimination is not encompassed by the statute’s prohibition of sex
discrimination. Applying this interpretation in cases like the present is simple. 13 No one
13
To be sure, questions of motivation and belief are not always easily adjudicated. In cases
where there is a dual motive, determining which motive predominated can prove
challenging. See Forbidden Grounds, pp 169-170. Cases like the present, by contrast,
generally present a clear picture of motive: an individual was discriminated against because
of the defendant’s prejudice, bias, or animus related to sexual orientation. There is
generally no evidence the defendant had any such beliefs regarding either the male or the
female sex.
26
contends that plaintiffs here are motivated by any prejudice, bias, or animus against, or
belief about, men qua men or women qua women. They are not accused of misogyny or
misandry. Instead, they hold certain views—prejudices, biases, anima, or beliefs—
concerning homosexuality. These beliefs—and not anything related to a view on biological
sex—are at the center of their policies. The statute simply does not extend this far.
II. THE MAJORITY MISAPPLIES THE BUT-FOR TEST
By reading the motive requirement out of the statute, the majority sets itself up for
failure in applying the but-for test. This is because the factual scenarios the majority
compares under that test lack the fact most critical to plaintiffs’ mind in the present case:
sexual orientation. Without that fact in the analysis, the majority is able to reach the result
it desires. But to do so, the majority must ignore the statutory requirements explained
above and, indeed, common sense about what it means to discriminate against a person
based on a protected characteristic.
As the Supreme Court has explained, “a but-for test directs us to change one thing
at a time and see if the outcome changes. If it does, we have found a but-for cause.”
Bostock, 590 US at ___; 140 S Ct at 1739. As one scholar has argued, “counterfactuals by
their nature are difficult to prove with any degree of certainty, for they require the fact-
finder to speculate what would have happened if the defendant had not done what he did.”
See Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics
(New York: Oxford University Press, 2009), p 84. 14 To reduce the uncertainties inherent
14
He provides a useful example of this uncertainty:
27
in the analysis, the hypothetical world must be the one “most similar to ours . . . .” Pearl
& Mackenzie, The Book of Why: The New Science of Cause and Effect (New York: Basic
Books, 2018), p 104 (on the science of causation); Robertson, Metaphysical Truth vs.
Workable Tort Law: Adverse Ambitions?, 88 Tex L Rev 1053, 1061 (2010) (“Traditional
tort law has an accepted answer to [Moore’s criticism from Causation and Responsibility],
one that blunts [Moore’s] ‘indeterminacy’ criticism. The imagined counterfactual world
must be the same as the actual world as shown by the evidence in the case in all respects
save one: the defendant’s wrongful conduct must be corrected to the extent necessary to
make the conduct acceptable under plaintiff’s theory of the case.”). The “imagined
correction of the defendant’s conduct is the only allowable change, and this change must
be done in an intellectually conservative way, employing as little creativity as possible.”
Metaphysical Truth, 88 Tex L Rev at 1061.
Suppose a defendant culpably destroys a life-preserver on a sea-going tug.
When a crewman falls overboard and drowns, was a necessary condition of
his death the act of the defendant in destroying the life-preserver? If the life-
preserver had been there, would [the life have been saved]? . . . .
. . . [There is] an indeterminacy of meaning in the [but-for] test . . . .
There is a great vagueness in counterfactual judgments. The vagueness lies
in specifying the possible world in which we are to test the counterfactual.
When we say “but for the defendant’s act of destroying the life-preserver”
what world are we imagining? We know we are to eliminate the defendant’s
act, but what are we to replace it with: a life-preserver that was alternatively
destroyed by the heavy seas; a defendant who did not destroy the life-
preserver because he had already pushed the victim overboard when no one
else was around to throw the life-preserver to the victim; etc, etc? [Id. at 84-
85.]
28
On these terms, which the majority appears to adopt, the test is not met here. The
core analysis underlying the majority’s reasoning comes from an example offered in
Bostock:
[I]t is impossible to discriminate against a person for being homosexual or
transgender without discriminating against that individual based on sex.
Consider, for example, an employer with two employees, both of whom are
attracted to men. The two individuals are, to the employer’s mind, materially
identical in all respects, except that one is a man and the other a woman. If
the employer fires the male employee for no reason other than the fact he is
attracted to men, the employer discriminates against him for traits or actions
it tolerates in his female colleague. Put differently, the employer
intentionally singles out an employee to fire based in part on the employee’s
sex, and the affected employee’s sex is a but-for cause of his discharge.
[Bostock, 590 US at ___; 140 S Ct at 1741.]
But the but-for test allows changing only one aspect of the real world to create the
counterfactual world. And, according to the example, there are only two relevant facts: in
the real world the employee is (1) a man, and (2) attracted to men, whereas the comparator
(i.e., the counterfactual example) employee is (1) a woman, and (2) attracted to men.
Here is the problem: “This is screamingly false to the facts as stipulated: to the
employer’s mind, the two employees are not materially identical in all respects except that
one is a man and the other a woman; they are also non-identical in the respect that one is
gay and the other straight.” Bostock was Bogus, 97 Notre Dame L Rev at 106. That fact—
the sexual orientation—is dropped out completely from the example despite its being, by
all evidence and stipulation, the critical distinction that motivated the employer. In other
words, the hypothetical does not “hold[] everything constant except the plaintiff’s sex”
because it also changes the plaintiff’s sexual orientation. Hively, 853 F3d at 366 (Sykes, J.,
dissenting) (emphasis altered).
29
Consequently, in the real world and under the statute (as properly interpreted), there
are three relevant facts: “the employee is (1) a man, (2) attracted to men, and (3) gay. The
comparator is (1) a woman, (2) attracted to men, and (3) heterosexual.” Krishnamurthi,
Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108
Va L Rev Online 1, 7 (2022). The majority’s but-for analysis changes two of these facts,
not just one. 15 A woman who is attracted to men is straight. True, she would not get fired.
But a woman who is attracted to women is gay, and she presumably would get fired. Each
comparator (a straight woman attracted to men or a gay woman attracted to women) has
two facts that have been changed. “The majority opinion [in Bostock] doesn’t provide a
principled reason why we should choose one comparator over the other.” Id. As such,
even assuming the statute requires but-for causation, plaintiffs would prevail here, as “sex”
is not a but-for cause of a discriminatory action when the defendant is motivated by beliefs
concerning sexual orientation. 16
15
Justice Alito in Bostock criticized the majority on this point, noting that it tried to frame
sex as the only distinction between the employees because both employees are “attracted
to men.” Bostock, 590 US at ___; 140 S Ct at 1762 (Alito, J., dissenting). Justice Alito
noted that the employer himself would say the objection is not to sex but sexual orientation.
This might seem like a “battle of labels” (i.e., calling the employee homosexual versus
saying he is attracted to men), but Justice Alito says that “[s]omething that is not sex
discrimination cannot be converted into sex discrimination by slapping on that label.” Id.
16
The majority contends that the third factor is duplicative of the first two factors, as
“sexual orientation in this context is simply a helpful shorthand for the combination of sex
and sex preference . . . .” The framing matters, however. As discussed, the ELCRA
focuses on the defendant’s discriminatory intent. From this perspective, the critical factor
is sexual orientation—which plaintiffs claim motivated their decision in this case. To the
extent any factor could drop out as duplicative, it would be the “attracted to men” factor.
In that case, the employee would be (a) a man, and (2) homosexual. The comparator would
be (a) a woman, and (2) homosexual. Both would be fired and thus the difference in sex
30
Consider another oddity in the majority’s analysis, one that does not even require
adding a fact to the but-for test: it fails for bisexuals. Put a fired bisexual employee into
the framework above: Employee A is (1) a man, and (2) attracted to both men and women.
The employer has a policy against bisexuals. Employee A is fired. The comparator is:
Employee B is (1) a woman, and (2) attracted to both men and women. Employee B would
also be fired. See Not the Standard, 108 Va L Rev Online at 11-12. Therefore, sex is not
a but-for cause in these circumstances. The majority’s test is thus underinclusive to the
extent it attempts to prove that discrimination on the basis of sexual orientation necessarily
involves discrimination on the basis of sex.
If the test does not cover all of what the majority promises, it nonetheless portends
to cover a great deal else. Suppose an employer asks about an applicant’s race in the
application paperwork. The applicant lies, thinking it will give him an advantage. He gets
hired and, after some time, admits to the lie. A manager learns of this and fires the
employee. “[I]t’s intuitively clear that if the employer fires the employee for lying on the
hiring paperwork about their race, that isn’t and shouldn’t be actionable discrimination
under Title VII as race discrimination. But that is precisely the conclusion we might draw”
from the majority’s test. Id. at 21. A but-for analysis would proceed as follows: the
employee (1) is white, and (2) said he was black on his paperwork. He gets fired for saying
he was black. The comparator (1) is black, and (2) said he was black on his paperwork.
He does not get fired. Id. Thus, race is a but-for cause and the firing is actionable. This
cannot possibly be the law.
would not be a but-for cause. The majority does not explain why its second factor—
attraction to men—should be chosen over the “sexual orientation” factor.
31
Consequently, even if some version of the but-for test is the right interpretation of
the ELCRA, the majority applies it the wrong way. Plaintiffs’ conduct does not satisfy the
but-for test.
III. CONCLUSION
The effect of the majority’s decision, as Justice ZAHRA explains, is to expand the
ELCRA by judicial fiat to cover discrimination “because of” sexual orientation. To do so,
the majority has twisted the meaning of the statute by adopting the logic of the but-for test
without the need for the defendant to have any discriminatory intent. This does not reflect
the ordinary meaning of the statute or the nature of discrimination. Unintentional
discrimination would seem to be an oxymoron, but the majority today endorses it. As a
result, the majority has misapplied its own test. 17
17
Strangely, in an opinion that adopts the but-for test as controlling for purposes of the
ELCRA, the majority claims that “the issue before this Court also does not encompass what
the [Michigan Department of Civil Rights (MDCR)] must prove to demonstrate that
discrimination on the basis of a protected characteristic was the cause of a denial of a public
accommodation . . . .” Ante at 7 n 5. Elsewhere in the opinion, however, the majority
explains that “the operative phrase ‘because of’ in the ELCRA establishes a but-for
causation standard” and that “[a]ccordingly, we must answer here whether complainants
who were denied service because of their sexual orientation would not have been so denied
but for their sex.” Ante at 17. See also ante at 18 (“Using this more restrictive definition
of the term ‘sex’ and applying the but-for causation standard to the provision at hand, we
conclude that discrimination on the basis of sexual orientation necessarily involves
discrimination because of sex in violation of the ELCRA.”) (emphasis added). No doubt
what the majority means to say is that they are not determining whether the particular
plaintiff business owners here violated the ELCRA. That may be true, but it is a superficial
point based purely on the procedural posture of this case—plaintiffs have brought the
action to stop the MDCR’s investigation of alleged violations of the ELCRA. On the
substance, the majority has clearly decided that if plaintiffs discriminated because of sexual
orientation, then they have discriminated because of sex. If this does not demonstrate what
must be proved to sustain a claim under the ELCRA, then I am at a complete loss to
understand what the majority opinion is about.
32
The results will be significant for Michigan, as the scope of the ELCRA extends far
beyond the statute at issue in Bostock. The ELCRA, for example, covers all employers,
whereas Title VII applies to employers with 15 or more employees. 18 Title VII also
contains exemptions for religious organizations, see 42 USC 2000e-1(a), 2000e-2(e); and
other federal statutes offer protections for religious liberty that supersede Title VII’s
requirements, see Bostock, 590 US at ___; 140 S Ct at 1754 (discussing the Religious
Freedom Restoration Act of 1993, 42 USC 2000bb et seq.). It does not appear that there
are any such statutory provisions applicable to the ELCRA. In this regard, too, the majority
has reached its interpretation today without any concern for whether that interpretation
violates constitutional protections of religious liberty. This departs from the normal
principle that courts will first consider whether an interpretation raises grave constitutional
doubts before adopting that interpretation. See Sole v Mich Economic Dev Corp, ___ Mich
___, ___; ___ NW2d ___ (2022) (Docket No. 161598); slip op at 11. Various amici have
The majority indicates that it is instead focused on the “first step in any
discrimination analysis under the ELCRA,” ante at 23 n 17, which requires the plaintiff to
establish, among other things, “discrimination based on a protected characteristic” that
“result[s] in the denial of the full and equal enjoyment of the goods, services, privileges,
advantages, or accommodations . . . of a place of public accommodation,” Haynes v
Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007). It is unclear what the majority means
by the “first step” in the analysis. Since the majority has used the but-for causation test to
smuggle sexual orientation into the statute, it is hard to understand the point of the majority
opinion if it is not to allow discrimination claims to proceed based on this novel theory.
But alas, I will accept the majority opinion at its word that it gives no guidance on what
must be proved to establish an ELCRA claim.
18
Compare MCL 37.2201(a) (“ ‘Employer’ means a person who has 1 or more employees,
and includes an agent of that person.”), with 42 USC 2000e(b) (“The term ‘employer’
means a person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current
or preceding calendar year, and any agent of such a person . . . .”).
33
raised strong arguments that the majority’s interpretation trenches on constitutional
liberties. Those concerns should have been considered before the Court reached its
interpretation here. 19
For these reasons, I dissent.
David F. Viviano
19
Plaintiffs have raised religious-liberty arguments that are pending in the Court of Claims
and will likely be addressed after this opinion.
34