Michigan Courts’ Anti-Bias Proposal Faces Significant Opposition

The Michigan Supreme Court received dozens of letters urging it to reject proposed anti-bias-focused changes to conduct rules for judges and lawyers, with some citing free-speech issues and others saying it’s a solution in search of a problem.

The letters—which the court received between early May and July 1, when the comment period closed—came from a variety of groups, attorneys, and members of the public. And while some of the 57 letters supported the proposal, most didn’t.

“Both the current Canon and Rule governing conduct of attorneys mandate that lawyers and judges treat everyone courteously and respectfully,” a letter from the State Bar of Michigan’s Religious Liberty Law Section stated. “It is neither appropriate nor, in this instance, constitutional, to fix something that is not broken.”

The proposal, which follows the lead of the American Bar Association, says lawyers and judges can’t express bias or prejudice “by words or conduct” based on an extensive list of characteristics, including race, sex or sexual orientation, gender identity or expression, religion, ethnicity, disability, physical appearance, familial status, political affiliation, and socioeconomic status.

The effort comes as President Donald Trump has targeted diversity, equity, and inclusion efforts in the government, Big Law, and beyond since he took office in January.

‘Speech Code’

This is the second time in recent years that the Michigan Supreme Court waded into culture wars. Another proposal on judges and lawyers’ use of litigants’ preferred pronouns garnered more than 400 letters ahead of the vote by the justices, who ended up fashioning the changes as more of a guideline than a mandate.

The justices will hold a to-be-scheduled public hearing on the proposal before voting on it.

The Virginia-based Christian Legal Society said the proposal acts as a “speech code.” For example, attorneys serving in the Legislature could face discipline if they hire or promote staff based on their political affiliation, wrote the group’s CEO and executive director, David Nammo.

“The damage that premature adoption of Proposed Rule 6.5 may do to Michigan attorneys can never be undone, while a decision to not adopt Proposed Rule 6.5 can always be revisited,” Nammo wrote.

Two former chairs of the State Bar’s Religious Liberty Law Section said including “censorship” for sexual orientation and gender identity in conduct rules “will inevitably collide with the constitutionally protected conscience held by many religious people who know gender is immutable and grounded in biological scientific reality, (as distinct from secular progressive views grounded in self-determined fluidity).”

The Michigan Judges Association and the Wayne Circuit Court in Detroit, which is the largest trial court in the state, are also opposed.

“There is no intent requirement in the proposed rule change effectively making the subjective listener the arbiter of whether the actions constitute harassment,” Berrien Circuit Judge Charles T. LaSata wrote on behalf of the judges association. “Arguably, nearly every Defendant in an adversary proceeding believes that they are being harassed in some manner.”

And the Catholic Lawyers Society of Metropolitan Detroit also sent its letter US Attorney General Pamela J. Bondi and Harmeet K. Dhillon, the head of the Justice Department’s civil rights division.

Institutional Support

Many of the commenters backing the proposal come from within the state’s legal establishment.

Michigan Court of Appeals Judge Sima G. Patel, who chairs the court’s rules committee and wrote on behalf of all the appellate judges, said they support the anti-bias proposal but recommend the justices keep in language emphasizing the need to be respectful and courteous to all people.

“Maintaining a respectful environment is essential for the integrity of the legal process and upholds the dignity of all individuals involved,” Patel wrote.

The Attorney Grievance Commission and the Attorney Discipline Board made similar comments, as did the State Bar’s board and the state District Judges Association.

OUTreach—a project affiliated with the University of Michigan Law School LGBTQ+ group OUTlaws, which provides pro bono legal services for queer and trans people in Washtenaw County—called the First Amendment concerns “misguided” and said the justices should adopt the proposal in full.

“Rules must be specific enough to put people on notice as to the types of conduct that is prohibited,” the group’s letter said.