Last year, our organizations joined an amicus brief at the Michigan Supreme Court supporting the argument that the Michigan legislature’s amendment of the Elliott-Larsen Civil Rights Act (“ELCRA”), which excluded all prisoners in correctional facilities from civil rights’ protections, was inconsistent with the Michigan Constitution. The MSC did not take up the issue last year but the appeals court will on November 14th. The case being argued involves hundreds of youth in various adult Michigan prisons alleging they were raped with the knowledge of MDOC personnel.
The legislature’s exclusion of a group of people from basic civil rights protection doesn’t comport with Article I, § 2 of the Michigan Constitution which states, “No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.” ELCRA is the fulfillment of this constitutional mandate.
If the state successfully argues that the legislature can exclude prisoners from equal protection guarantees with limited judicial review, it sets a dangerous precedent for the legislature to single out any group that it wants. So, today it might be children in prison who are not protected from sexual abuse, racial discrimination, or discriminatory treatment based on their religion, gender or disability, but tomorrow it could be another group with a target on its back.
Besides limiting Michigan citizens’ equal protection guarantees, the state is arguing that all state agencies and departments should be immune from any claim of discrimination in public services and accommodations. This is a sweeping and unprecedented attempt to undermine civil rights protections in Michigan, which would impact a broad swath of our neighbors.
Equal protection guarantees are embedded in our state’s constitution for a reason. Let’s not tamper with them.
Women Lawyers Association of Michigan
D. Augustus Straker Bar Association
Wolverine Bar Association
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