On September 18, 2017, the Michigan Civil Rights Commission was poised to make history. In a packed room, the commission was about to determine if the state’s civil-rights act prohibited discrimination against LGBTQ individuals. Just two years prior, the Supreme Court decided, in Obergefell v. Hodges, that same-sex couples had the constitutional right to marry. And if same-sex couples could marry in Michigan, why couldn’t they, say, own an apartment or hold a job without fear of discrimination? “We felt very confident,” said Steph White, executive director of Equality Michigan. “The community was signed on. And the commission was open to the idea that they could do something positive for the LGBTQ community.”
Then, just as the three hours of public comment were concluding, Ron Robinson, a representative of the state’s Republican attorney general, Bill Schuette, stood up. He calmly informed the commission that it had no authority to issue an interpretation of the civil-rights act, and if it tried, the commissioners could be held personally liable for any resulting lawsuits.
“The whole room was like, ‘What!?’” White told me.
Schuette’s statement was unexpected and without any clear legal basis. In order to function properly, agencies like the Civil Rights Commission have to resolve ambiguities in the laws that they enforce. What’s more, the commission had issued interpretations and position statements in the past.
Schuette’s last-minute announcement confused the commission and infuriated members of the public. “Why did we have this hours-long conversation only for you to tell us we can’t do this?” White remembered wondering.
Eventually the commissioners called the attorney general’s bluff, and in May 2018, they reconvened and granted LGBTQ people their protections. Schuette, who did not respond to requests for comment, must have known his claim about the commission’s mandate was not legally binding. To White, it’s an example of Schuette’s political opportunism. Schuette, his critics claim, has repeatedly used his position as attorney general to curry favor with the state’s far right, often at the expense of civil rights. Far from hurting his career, Schuette’s pandering has just won him the GOP’s primary for governor by a wide margin. “Michigan will start winning again,” Schuette said in his acceptance speech.
As attorney general, Schuette likes to say—with gee-whiz Midwestern humility—that he’s not out to play politics: “I don’t sit around and pass judgment on people. I don’t say, ‘Gee is that person gay or straight or bi? Or what does that person’s sex life look like?’ I think that’d be really weird. I don’t pass judgment like that. What I do is my job.”
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Schuette’s record tells a different story. “He’s calculated that being anti-LGBT is to his political advantage, and he’s gone beyond interpreting the law,” said Kary Moss, executive director of the ACLU of Michigan. “He has aggressively, proactively joined in every opportunity he can to attack the LGBT community in the courts.”
In 2012, two Michigan residents, April DeBoer and Jayne Rowse, filed suit over the state’s ban on same-sex marriages and civil unions. As attorney general, Schuette’s task was to defend the state. He could have focused his argument on a 2004 amendment to the state’s Constitution that defined marriage as only between a man and woman—any federal interference with that, he might have argued, would be an encroachment on the state’s sovereignty. Such an appeal to states’ rights would be sufficiently right wing to maintain his conservative bona fides. Instead, Schuette opted for bigotry: Same-sex couples needed to be excluded from the state’s definition of marriage for the safety of Michigan children.
Schuette invited a group of “expert” witnesses to testify that, among other things, children raised by same-sex couples are more likely to commit crimes. One such expert so lacked expertise that the judge dismissed him before testimony. Another was revealed to have run a bogus study cooked, according to the federal judge, “at the behest of a third-party funder” with the specific aim of endorsing “the traditional understanding of marriage.” Each of the witnesses, the judge determined, advanced “a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.”
Schuette lost in district court, but only after he’d spent $40,000 on these phony experts and, as a commentator at the Detroit Metro Times put it, made “an utter fool of himself” in a “craven attempt to please the religious right.” The case finally got to the Supreme Court when it was folded into Obergefell v. Hodges. In all, Schuette’s campaign against gay rights cost Michigan taxpayers $1.9 million.
And his assault on civil rights doesn’t end with the LGBTQ community. In 2012, Schuette opposed a Supreme Court decision, Miller v. Alabama, that deemed the sentencing of minors to life in prison without parole a form of “cruel and unusual punishment.” In Justice Elena Kagan’s majority opinion , the Court ruled that when imposing penalties on minors, states “cannot proceed as though they were not children.” A federal district-court judge determined that the sentences of inmates tried as minors should therefore be reconsidered: “If ever there was a legal rule that should—as a matter of law and morality—be given retroactive effect, it is the rule announced in Miller. To hold otherwise would allow the state to impose unconstitutional punishment on some persons but not others, an intolerable miscarriage of justice.”
When appeals of the federal district court’s ruling reached the Supreme Court, Schuette filed an amicus brief on behalf of 15 other state attorneys general. Schuette did not, as one might expect, merely point to the bureaucratic burdens of resentencing old cases. He argued that reconsidering the fates of thousands of inmates in state prisons across the country—all of whom were tried as minors—would “undermine the community’s safety.” Schuette based this assertion on the grisly details of a single murder—and with it, effectively argued that 2,000 inmates who were convicted of crimes as minors should die in prison.
It wasn’t the only time Schuette downgraded the rights of incarcerated juveniles. In 2013, seven male inmates reported being raped or sexually harassed as minors by adults, including by prison staff. The plaintiffs sought relief under the state’s civil-rights act. But Schuette’s team repeatedly requested stays as a delaying tactic. A state court judge found Schuette’s litigation strategy “odious,” made in what the court termed a “horrible” and “frivolous” effort to obtain judicial relief to which the state was not entitled. Schuette’s assistant attorneys have also claimed that the minors’ rape testimonies cannot be trusted, because they are either gay or liars. More generally, the attorneys have argued that minors in prison ought to be excluded from the state’s civil-rights act altogether. Schuette’s team advances this reasoning in a state that, in 2009, settled a $100 million class-action lawsuit brought on behalf of 500 incarcerated women who had, like the seven young men, reported being raped or sexually abused.
The young men’s case is now before the state Supreme Court after the court of appeals determined that incarcerated minors are indeed entitled to equal protection of the law in Michigan. This record makes Schuette’s bland assurance that he merely tries to defend the Constitution as sinister as it is absurd. How could his crusade against minors in prison achieve any meaningful gains toward the protection of the Constitution? As NYU law professor Roderick Hills put it, Schuette’s “stubborn resistance to all prison reform efforts is hard to fathom except as blind contempt for prisoners’ welfare.”
There’s little doubt that Schuette has used his right-wing legal activism to garner media attention. A love of the spotlight would help account for much of Schuette’s oeuvre. In September 2015, as President Barack Obama negotiated the Iran deal, Schuette penned a letter with Scott Pruitt, then–attorney general of Oklahoma, which they sent to the governors of all 50 states encouraging them to issue their own sanctions against Iran. Schuette has a penchant for filing amicus briefs on behalf of right-wing interests in cases with national profiles. In the run-up to the Hobby Lobby decision, Schuette filed briefs in six federal court cases affirming the right to deny health-care coverage to women because of an employer’s religious beliefs. In another amicus brief, he wrote to the Court on behalf of the attorneys general of 18 states in favor of gutting of public-sector unions in Janus. After the Court’s verdict was announced, Schuette attributed the success of the anti-labor movement to President Donald Trump, even though that decision was the culmination of a decades-old campaign.
Schuette’s brownnosing, it seems, has its benefits. While avoiding the White House Correspondent’s Dinner in late April, Trump visited Macomb County in Michigan for what Nation columnist Eric Alterman called a “Nuremberg-style rally.” There, Trump endorsed Schuette, calling him “the next governor of Michigan.”
Yet even in a state that Trump won, GOP candidates for statewide office face a few obstacles; after all, the last Republican governor presided over the poisoning of an entire city. For his part, Schuette swore to fight for the people of Flint, and in October 2017 he vowed to spend more than $25 million on the investigation into the drinking-water crisis—more than Robert Mueller has spent on the entire Russia investigation.
But critics see this as another play for the cameras—and not a particularly convincing one. “I don’t think Schuette gives a shit about the people of Flint,” White of Equality Michigan said. In September 2015, when the health issues caused by Flint’s water were well-known but hadn’t yet become an international story, a state representative asked Schuette to investigate whether city or state officials were culpable. Schuette declined. Then, after having “dragged his feet for months”—as the Michigan Democratic Party Chair Brandon Dillon put it—Schuette appointed as lead investigator a Republican donor who had contributed to Governor Rick Snyder, who would be an obvious candidate for any serious probe.
In January 2017, attorneys working for Schuette were trying to defeat a requirement to provide bottled water to Flint residents. At the same time, Schuette attempted to file an amicus brief arguing that the state should continue supplying the water. A federal judge denied the request and ridiculed Schuette for his “superficial posturing.” Moss—whose state chapter of the ACLU has been recognized for its work on behalf of Flint residents—goes further: “It is laughable that Schuette might try to position himself as a hero in Flint. The heroes in Flint are the people who live there and all those who exposed the water crisis in the state where the political leadership, especially Bill Schuette, turned a deaf ear for years.”
Last month, Schuette once again attacked the rights of LGBTQ Michiganders. Having been silent for weeks about the Civil Rights Commission’s statement prohibiting discrimination based on sexual orientation and identity, Schuette decided to issue a “formal opinion” on the matter: The commission’s interpretation was “invalid.”
So far, the commission has simply ignored Schuette and continued to investigate complaints related to sexual orientation. “Michigan’s Constitution says that the interpretations of the commission stand, unless they are deemed invalid in court,” White said. Schuette’s opinion, at this point, has no real effect.
So why did he issue it? This was, White points out, “another act of political opportunism.” Schuette got his headline and sent a signal to his base: As governor, he would fight to roll back civil rights. White worries, in particular, about an executive order, issued by Democratic Governor Jennifer Granholm and allowed to stand by Governor Snyder, that prohibits discrimination in state employment based on sexual orientation and gender identity. If Schuette were elected, that order could be on the chopping block. He would also be able to make new appointments to the Civil Rights Commission. At which point, White pointed out, the commission might be inclined to issue a new reading of the civil-rights act.
Schuette’s legal opponents are clear: A GOP victory in the general election would spell disaster for civil rights in Michigan. Moss warned, “We would have a governor who follows in the footsteps of Donald Trump and who has no respect for the values of our democratic institutions.”
Patrick Hogan provided additional legal-research support.