Defending liberty

In February 2021 the ACLU of Michigan filed a friend-of-the-court brief urging the Michigan Supreme Court to rule that Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination against LGBT people. Such a ruling would bring Michigan in line with the United States Supreme Court’s decision last year that the federal civil rights act also protects LGBT people from discrimination.

The issue in the case is whether ELCRA’s prohibition on discrimination “because of sex” includes a prohibition on discrimination because of sexual orientation. Two companies that are under investigation by the Michigan Department of Civil Rights for refusing to provide services to LGBT customers have sued the state, arguing that ELCRA does not prohibit discrimination against LGBT people. The lower court ruled that ELCRA does prohibit discrimination based on gender identity, but not based on sexual orientation. We are arguing that both gender identity and sexual orientation are protected under ELCRA, because it is impossible to discriminate against an individual for being gay or transgender without taking their sex into account. We are also arguing that an old Michigan Court of Appeals decision from 1998, which says that sexual orientation is not covered, should be overruled.

Our brief was joined by a coalition of thirteen state and national LGBT advocacy organizations. If the court rules in our favor, discrimination will be prohibited in employment, housing, education, and public accommodations.

(Rouch World v. Michigan Department of Civil Rights; Cooperating Attorneys Leah Litman and Dan Deacon of U-M Law School; ACLU Attorneys Jay Kaplan and Dan Korobkin.)

Students at Michigan State University contacted the ACLU of Michigan when they discovered that university rules interfered with their ability to register students to vote in their dorms. 

ACLU representatives and student voting rights advocates met with university administrators in January 2016 to explain the problem. We worked together to craft a policy that allows students to exercise their First Amendment rights while keeping dorm residents safe. The new policy allows students to (1) conduct voter registration door-to-door on the residence halls if they were accompanied by a member of the dorm; (2) register students at tables in public places of the dorms; (3) post literature on community bulletin boards about voter registration without seeking prior authorization; and (4) distribute voter registration literature addressed to students in the student mailboxes. 

(ACLU Legal Director Michael J. Steinberg; Cooperating Attorney Alison Hirschel.)

Under the First Amendment, the “true threats” doctrine holds that allegedly threatening speech cannot be punished unless the government can prove that the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. 

In July 2016, racial tension over unjustified police violence against young black men was at an apex, when Alton Sterling and Philando Castile were fatally shot by police officers in Louisiana and Minnesota, respectively. In a moment of anger, an African American man named Nheru Littleton, a military veteran and factory worker in Detroit, posted the following statement on his Facebook page: “All lives won’t matter until black lives matter! Kill all white cops!”  When the police investigated, Mr. Littleton apologized, explained that he had been drinking when he posted the statement, and had no intent to harm anyone. 

Wayne County Prosecutor Kym Worthy declined to press charges, explaining that the statement was very offensive but was protected by the First Amendment. In a highly unusual move Attorney General Bill Schuette overruled Worthy and directed his office to prosecute Littleton for “terrorist threats,” a felony offense that carries up to 20 years in prison. 

In February 2017, the ACLU of Michigan filed a friend-of-the-court brief in Wayne County Circuit Court in support of Littleton’s motion to dismiss the criminal prosecution. We argued that although Mr. Littleton’s statement was offensive and upsetting, it was political speech and was not a “true threat.” The judge disagreed and scheduled the case for trial. Littleton appealed, and in May 2017, we filed another friend-of-the-court brief in the Michigan Supreme Court. 

After receiving our brief, the Supreme Court put Littleton’s trial on hold while it considered our First Amendment arguments. However, in October 2017 the Supreme Court declined to take further action on the case. Mr. Littleton pleaded guilty and was sentenced to ten months in jail. 

(People v. Littleton; ACLU Attorney Dan Korobkin.)