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Pro-gay rights groups at odds over how to add LGBT protections to Michigan’s constitution

Nov 2, 2015

It’s the upstarts versus the Establishment. Again.

And, this time, we don’t mean the Tea Party versus the Republicans. Rather, we’re talking about the gay rights movement in Michigan.

Directly to the voters

Last Friday, a new ballot committee, “Fair Michigan,” filed with the state. The group wants to add the words “gender,” “gender identity,” and “sexual orientation” to the equal protection clause of the state constitution.

This would protect people who identify as LGBT from being fired or denied housing or public accommodations (something that remains legal in Michigan).

It's Just Politics with Zoe Clark and Rick Pluta

By using the ballot, Fair Michigan is going directly to voters because conservative Republicans in the state Legislature have refused to add those protections to the state’s civil rights law via legislation.

It seemed like something that might happen last year, particularly after Governor Snyder called on the state Legislature to debate the question, but it stalled over whether people who identify as transgender would be included. There were also questions about whether a Religious Freedom Restoration Act would be included in a deal to pass the protections.

Deja Vu

But the groups we’ll call the LGBT establishment - the ACLU, Equality Michigan - have, so far, balked at the idea. They say a ballot campaign will be too expensive and that it’s not guaranteed to succeed. The LGBT establishment has opted to continue their strategy of working through the Legislature.

This disagreement between pro-LGBT groups might sound familiar to those who closely followed the legal challenge to Michigan’s same sex marriage case.

That’s because Dana Nessel, one of the lead attorneys in DeBoer v. Snyder (the Michigan case that led to the Supreme Court declaring gay marriage legal in the U.S.) is also taking the lead in Fair Michigan, along with prominent Lansing Republican attorney Richard McLellan.

“If basic protections against discrimination don’t belong in the constitution, then I’m not sure what the constitution is for,” Nessel tells It’s Just Politics.

Nessel and McLellan are bringing an impressive bipartisan roster (Republican Oakland County Executive L. Brooks Patterson and Democratic Wayne County Prosecutor Kym Worthy, for example) of supporters to the effort.

But, they haven’t gotten the LGBT establishment on board.

This is reminiscent of the divide over April DeBoer and Jayne Rowse’s case. At first, the LGBT establishment didn’t think Michigan was the right place or the right time to stage that fight. As it turned out, of course, they were wrong.

Now, fast forward to present day and the ACLU and Equality Michigan want a legislative strategy to adopt LGBT protections, rather than a ballot initiative.

Why not a ballot question?

The LGBT establishment does have valid concerns for being hesitant about a ballot initiative. First off, they don’t come cheap. It will be expensive endeavor (although there are arguments over just how many of millions of dollars it will cost).

They are also fearful of the counter-campaign that could erode the wide support that currently appears to exist among Michigan residents for these protections.

In fact, there’s controversy right now in Houston, where voters in that city will decide tomorrow at the polls on a human rights ordinance.

The ordinance initially polled above 70 percent but, after organized opposition (and some tough TV advertisements), support is now hovering just above or below 50 percent.

Friday’s filing allows Fair Michigan to begin to fundraise. But the campaign has not yet started gathering signatures. LGBT establishment groups will certainly be watching tomorrow’s vote in Houston to help gauge whether they’re going to hang back or get on board.