Clement, J.

Great Lakes Justice Center (by David A. Kallman, William R. Wagner, Lansing, Stephen P. Kallman, Erin Mersino, Ann Arbor, and Jack C. Jordan, Lansing), for plaintiffs.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Tonya Celeste Jeter, Ron Robinson, and Kyla Barranco, Assistant Attorneys General, for defendants.

Leah M. Litman, Daniel T. Deacon, Jay D. Kaplan, Livonia, and Daniel S. Korobkin, for the American Civil Liberties Union of Michigan and others, amici curiae.

Gwinn Legal PLLC (by Daniel A. Gwinn, Troy, and Laura K. Bradshaw-Tucker), for the Corktown Health Center, amicus curiae.

Linus Banghart-Linn, Assistant Solicitor General, for Governor Gretchen Whitmer, amicus curiae.

McClelland & Anderson, LLP (by Melissa A. Hagen and Gail A. Anderson, Lansing), for Michigan Realtors, amicus curiae.

Freid, Gallagher, Taylor & Associates (by Debra A. Freid, Lansing) and Gafkay Law, PLC (by Julie A. Gafkay, Saginaw), for the Michigan Association for Justice, amicus curiae.

Eli Savit, Washtenaw County Prosecutor (by Eli Savit, Victoria Burton-Harris, and Christina Hines); Robert Steinhoff, Alger County Prosecutor; David Leyton, Genesee County Prosecutor; Carol A. Siemon, Ingham County Prosecutor; Jeffrey S. Getting, Kalamazoo County Prosecutor; Matt J. Wiese, Marquette County Prosecutor; Karen McDonald, Oakland County Prosecutor; and Kym Worthy, Wayne County Prosecutor, amici curiae.

Bodman PLC (by Thomas Van Dusen, Troy, Thomas J. Rheaume, Jr., Detroit, and Gordon J. Kangas, Ann Arbor), for the Michigan Catholic Conference, amicus curiae.

Schiff Hardin LLP (by Jessica A. Sprovtsoff, Jacob K. Danziger, and Elise H. Yu, Ann Arbor) for various Michigan business, organizations, and Chambers of Commerce, and FGI (by Rami D. Fakhoury ), for Dow, Inc, amici curiae.

Angie Martell, Ann Arbor, Amanda J. Shelton, Royal Oak, S. Kerene Moore, Donald C. Wheaton, Jr., Saint Clair Shores, Christine A. Yared, and Alanah M. Haskin, for the LGBTQA Section of the State Bar of Michigan, amicus curiae.

John J. Bursch, Caledonia, for Alliance Defending Freedom and Michigan Family Forum, amicus curiae.

BEFORE THE ENTIRE BENCH

OPINION

Clement, J.

At issue for our consideration is whether the prohibition of discrimination "because of ... sex" in the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq. , encompasses discrimination on the basis of sexual orientation. We hold that it does. Accordingly, we overrule the Court of Appeals decision in Barbour v Dep't of Social Servs , 198 Mich App 183, 185, 497 N.W.2d 216 (1993), and reverse in part the Court of Claims decision below.

I. LEGAL BACKGROUND

This case concerns acts of alleged discrimination investigated by defendant, the Michigan Department of Civil Rights (the MDCR). The MDCR is an administrative agency that serves as the operational arm of the Michigan Civil Rights Commission (the MCRC). See MCL 16.575 through MCL 16.577. The MCRC is a constitutional body whose purpose is to secure constitutional and statutory guarantees against discrimination and investigate allegations that those guarantees have been violated. Const 1963, art. 5, § 29.

Among the legal guarantees against discrimination enforced by the MCRC is the statutory guarantee against discrimination provided by the ELCRA. The ELCRA recognizes as a civil right "[t]he opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status ...." MCL 37.2102(1). Through the recognition and protection of this civil right, the ELCRA seeks to dismantle "the prejudices and biases borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases." Miller v C A Muer Corp , 420 Mich. 355, 363, 362 N.W.2d 650 (1984) (quotation marks and citations omitted).

The ELCRA specifically protects against discrimination in public accommodations as follows:

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations

of a place of public accommodation or

public service because of religion, race, color, national origin, age, sex, or marital status. [ MCL 37.2302.]

Pursuant to its role in enforcing the ELCRA, the MCRC in May 2018 offered to the public for guidance its nonbinding interpretation of the practices prohibited by this statutory provision. Specifically, Interpretive Statement 2018-1 opines that the prohibition of discrimination in places of public accommodation "because of ... sex" in MCL 37.2302(a) includes a prohibition of discrimination on the basis of sexual orientation and gender identity. The MCRC reasoned "that continuing to interpret the protections afforded by the phrase ‘discrimination because of ... sex’ more restrictively by continuing to exclude individuals for reasons of their gender identity or sexual orientation, would itself be discriminatory." Pursuant to this interpretation of MCL 37.2302(a), the MCRC through the MDCR has since investigated complaints alleging discrimination on account of gender identity and sexual orientation.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case involves two acts of alleged sex-based discrimination investigated by the MDCR pursuant to Interpretive Statement 2018-1. The first involves plaintiff Rouch World, LLC, which operates an event center in Sturgis, Michigan. In April 2019, Natalie Johnson and Megan Oswalt approached Rouch World regarding hosting their same-sex wedding at its facility. Rouch World declined. Its owners, Ben and Jamey Rouch, explained that hosting and participating in a same-sex wedding ceremony would violate their sincerely held religious belief that marriage is a sacred act of worship between one man and one woman. Johnson and Oswalt thereafter filed complaints with the MDCR, wherein they alleged that Rouch World discriminated against them on the basis of sex in violation of the ELCRA.

The second alleged act of sex-based discrimination occurred when plaintiff Uprooted Electrolysis, LLC, denied hair-removal services to Marissa Wolfe, a transgender woman. Sheri Curtice-Young, the owner of Uprooted Electrolysis, perceived the requested services to be centrally connected to Wolfe's transgender identity and asserted that delivering these services would violate her sincerely held religious belief that sex is an immutable gift from God. Wolfe thereafter filed a complaint with the MDCR alleging that Uprooted Electrolysis had discriminated against her on the basis of sex in violation of the ELCRA. Pursuant to the MCRC's Interpretive Statement 2018-1, the MDCR opened investigations into both of these incidents. But the investigations were stayed when plaintiffs jointly sued the MDCR and its then director, seeking declaratory and injunctive relief. Specifically, plaintiffs sought a declaratory judgment that sexual orientation and gender identity are not encompassed by the ELCRA's prohibition of sex discrimination in places of public accommodation and an injunction prohibiting the continued investigation of the complaints filed against plaintiffs and the MDCR's continued adherence to Interpretive Statement 2018-1.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) regarding the interpretation of the ELCRA, and the Court of Claims denied the motion in part and granted it in part. Regarding whether sexual orientation is encompassed by the ELCRA, the Court of Claims determined that it was bound to follow the Court of Appeals decision in Barbour , 198 Mich App 183, 497 N.W.2d 216. In Barbour , relying largely on then-current federal precedent regarding analogous provisions of Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. , the Court of Appeals concluded that the ELCRA's discrimination prohibition did not encompass sexual orientation. Id. at 185, 497 N.W.2d 216. Acknowledging itself bound by this determination from Barbour , the Court of Claims here denied defendants’ motion for summary disposition as applied to plaintiff Rouch World's arguments.

However, because Barbour did not concern gender-identity discrimination, the Court of Claims determined that it was not bound by Barbour in regard to plaintiff Uprooted Electrolysis's arguments. The Court of Claims considered the issue and determined that when a person discriminates against "someone who ‘identifies’ with a gender different than the gender that he or she was born as, then that is dissimilar treatment on the basis of sex" as prohibited under the ELCRA. In so concluding, the Court of Claims relied in part on the recent United States Supreme Court decision in Bostock v Clayton Co , 590 U.S. ––––, ––––, 140 S Ct 1731, 1741, 207 L Ed 2d 218 (2020), wherein the Court held that an employer violates Title VII when it intentionally fires a person on the basis of their homosexuality or transgender identity because "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." Accordingly, the Court of Claims granted defendants’ motion for summary disposition as to plaintiff Uprooted Electrolysis's arguments.

Defendants subsequently filed an interlocutory application for leave to appeal in the Court of Appeals, challenging the rejection of summary disposition as to plaintiff Rouch World's sexual-orientation arguments. Shortly thereafter, defendants filed a bypass application in this Court. This Court granted the bypass application to address "whether the prohibition on discrimination ‘because of ... sex’ in the [ELCRA] applies to discrimination based on sexual orientation." Rouch World, LLC v Dep't of Civil Rights , 507 Mich. 999, 999, 961 N.W.2d 153 (2021). Notably, plaintiffs did not cross-appeal the Court of Claims’ determination that gender identity is encompassed by the ELCRA—the basis of the complaint against Uprooted Electrolysis—and so that issue is not currently before this Court.

III. ANALYSIS

We review de novo both the denial of a motion for summary disposition and questions of statutory interpretation. Maiden v Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999) ; Eggleston v Bio-Med. Applications of Detroit, Inc , 468 Mich. 29, 32, 658 N.W.2d 139 (2003). When interpreting a statute, this Court's "primary goal is to ascertain and give effect to the Legislature's intent." Tomecek v Bavas , 482 Mich. 484, 495-496, 759 N.W.2d 178 (2008). "[T]he most reliable evidence of that intent is the plain language of the statute." South Dearborn Environmental Improvement Ass'n, Inc v Dep't of Environmental Quality , 502 Mich. 349, 360-361, 917 N.W.2d 603 (2018). "If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written." South Haven v Van Buren Co. Bd of Comm'rs , 478 Mich. 518, 528, 734 N.W.2d 533 (2007) (quotation marks and citations omitted). However, if the statute's language is ambiguous, this Court "may refer to the history of the legislation in order to determine the underlying intent of the Legislature." Luttrell v Dep't of Corrections , 421 Mich. 93, 103, 365 N.W.2d 74 (1984). This Court must attempt to avoid any construction that would render portions of a statute surplusage or nugatory. South Dearborn , 502 Mich. at 361, 917 N.W.2d 603. Finally, in interpreting the ELCRA specifically, this Court has encouraged using as guidance federal precedent interpreting Title VII of the federal Civil Rights Act, the statute on which the ELCRA was based. See Radtke v Everett , 442 Mich. 368, 381, 501 N.W.2d 155 (1993) ; Rasheed v Chrysler Corp , 445 Mich. 109, 124 n 20, 517 N.W.2d 19 (1994) (noting that the ELCRA was "clearly modeled" after Title VII).

A. APPLICABLE CASELAW

Today, this Court is asked to determine whether the ELCRA's prohibition of discrimination "because of ... sex," MCL 37.2302(a), encompasses discrimination based on sexual orientation. As the Court of Claims recognized, the Court of Appeals previously answered this question in the negative in Barbour , 198 Mich App 183, 497 N.W.2d 216. In Barbour , the plaintiff was subject to harassment in his workplace on the basis of his perceived sexual orientation. Id. at 184, 497 N.W.2d 216. On appeal, the Court of Appeals summarily affirmed the trial court's determination that the ELCRA did not encompass sexual-orientation discrimination on the basis of federal precedent holding the same with regard to Title VII, i.e., DeSantis v Pacific Tel. & Tel Co , 608 F.2d 327 (CA 9, 1979), overruled in part by Nichols v Azteca Restaurant Enterprises , Inc , 256 F.3d 864 (CA 9, 2001) ; Williamson v A G Edwards & Sons, Inc , 876 F.2d 69 (CA 8, 1989), overruled by Horton v Midwest Geriatric Mgt. , 963 F.3d 844 (CA 8, 2020) ; and DeCintio v Westchester Co. Med. Ctr. , 807 F.2d 304 (CA 2, 1986). Barbour , 198 Mich App at 185-186, 497 N.W.2d 216. In those cases, the federal circuits reasoned that Congress's intent in enacting Title VII—and specifically, its reference to "sex"—was "to place women on an equal footing with men," rather than to regulate discrimination based on sexual orientation. DeSantis , 608 F.2d at 329 (quotation marks and citation omitted). See also DeCintio , 807 F.2d at 306. Barbour adopted the conclusion of these federal circuits without engaging in its own analysis of the issue under the ELCRA.

Barbour , as a published, post-1990 Court of Appeals opinion, has precedential effect, and the Court of Claims properly recognized below that it was bound by that decision. MCR 7.215(C)(1) and (J)(1). However, this Court is not so bound, and developments in the law since Barbour have called into question its validity. Specifically, since the Court of Appeals decision in Barbour , the cases on which that Court relied were overturned in Bostock , 590 U.S. ––––, 140 S Ct 1731. In Bostock , the United States Supreme Court considered whether the employee plaintiffs terminated for their sexual orientation or gender identity brought cognizable claims of unlawful discrimination under Title VII. Id. at ––––; 140 S Ct at 1737-1738. Specifically at issue was whether discrimination based on sexual orientation or gender identity is encompassed by Title VII's prohibition of employee discharge "because of such individual's ... sex." Id. at ––––; 140 S Ct at 1738.

To begin, the majority examined three distinct portions of the statutory text at hand: the term "sex," the phrase "because of," and the provision's subsequent catchall phrase "or otherwise to discriminate." With regard to defining the term "sex," the employers proposed a definition of "sex" as "status as either male or female [as] determined by reproductive biology," as the term allegedly would have been understood by Congress in 1964 when Title VII was enacted. Id. at ––––; 140 S Ct at 1739. The employees, on the other hand, argued for a broader definition of the term "sex" that encompassed "at least some norms concerning gender identity and sexual orientation." Id. However, "[b]ecause nothing in [the majority's] approach to these cases turn[ed] on the outcome of the parties’ debate, and because the employees concede[d] the point for argument's sake," the majority proceeded on the assumption that "sex" referred "only to biological distinctions between male and female." Id.

Next, the majority considered the operative phrase of the statute—"because of." The majority noted that it had previously defined this phrase as meaning "by reason of" or "on account of" and as establishing a but-for standard of causation. Id. (quotation marks and citation omitted). Under this standard, "causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause." Id. The majority acknowledged the breadth of this standard, as multiple but-for causes may exist for any single event, but noted that Congress had chosen this specific language rather than the more limiting language it had used for causation in other statutes. Id. Accordingly, this chosen causation standard would prevent an employer from avoiding liability for discriminatory action by merely citing some other, nondiscriminatory factor that contributed to the employment action. Id.

The majority next assessed the catchall phrase "or otherwise ... discriminate against," which appears at the conclusion of the statute's list of prohibited actions. Id. at ––––; 140 S Ct at 1740. The employers argued that the inclusion of this phrase meant that Title VII prohibits employee discharge only when it involves both a protected characteristic and discrimination. Id. The majority again accepted this premise for argument's sake and went on to define "discrimination" as "treating that individual worse than others who are similarly situated." Id. In so doing, the majority specifically eschewed a definition of discrimination that would require a group-focused analysis that compares the employer's differential treatment of employees grouped by protected characteristic rather than individual employees themselves. Id. The eschewed perspective was seen as inconsistent with Title VII's repeated references to "individuals" rather than groups—i.e., " ‘discharge any individual ,’ " " ‘otherwise ... discriminate against any individual ,’ " and " ‘because of such individual ’s’ " protected characteristic. Id ., quoting 42 USC 2000e-2(a)(1) (emphasis added). Given that individual focus, the majority concluded that the relevant inquiry under Title VII is whether the specific employee was treated differently, not whether the employer treats different groups of persons differently. Bostock , 590 U.S. at ––––; 140 S Ct at 1740.

From these textual assessments, the majority deduced that "[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex." Id. at ––––; 140 S Ct at 1741. Applying this principle to discrimination on the basis of sexual orientation and gender identity, the majority concluded:

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the

employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as a male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision. [ Id. at ––––; 140 S Ct at 1741-1742.]

In sum, the majority held that discrimination based on sexual orientation or gender identity is necessarily encompassed within discrimination because of sex. See id.

The majority further acknowledged that when discrimination on the basis of sexual orientation is at issue, there may be two contributing factors to that discrimination: the individual's sex and the sex to which that individual is attracted. Id. at ––––; 140 S Ct at 1742. But the fact that the individual's sex is one of the causes of the discrimination—that "but for" the individual's sex, the action would not have occurred—is sufficient to satisfy Title VII; the existence of an additional but-for cause does not eliminate liability. Id. Similarly, the fact that the employer may have intended to discriminate on the basis of sexual orientation but not sex does not evade liability because "an employer who discriminates on th[is] ground[ ] inescapably intends to rely on sex in its decisionmaking" because sexual orientation is "inextricably bound up with sex." Id. Finally, the majority also rejected the premise that an employer's willingness to discriminate against both male and female employees on the basis of sexual orientation removed Title VII liability. Id . Because Title VII requires an individual-based analysis rather than a group-based analysis, its liability is not limited to only employers who treat different groups of employees differently. Id. Accordingly, discriminating against individuals of different protected characteristic groups similarly "doubles rather than eliminates Title VII liability." Id. at ––––; 140 S Ct at 1742-1743.

Bostock was not a unanimous opinion; Justices Alito, Thomas, and Kavanaugh dissented. The dissenting justices argued that the majority had usurped the authority of Congress by essentially rewriting Title VII to encompass discrimination based on sexual orientation and gender identity. Id. at ––––; 140 S Ct at 1754-1755 (Alito, J., dissenting); id. at ––––; 140 S Ct at 1822 (Kavanaugh, J., dissenting). They reasoned that, had Congress intended for sexual orientation and gender identity to be protected by Title VII, it would have used those terms specifically when it enacted the statute. Id. at ––––; 140 S Ct at 1829-1830 (Kavanaugh, J., dissenting). Instead, however, Congress used the term "sex," which they opined was nearly universally understood in 1964 to refer to biological or anatomical distinctions between male and female and would not have been expected to include sexual orientation or gender identity. Id. at ––––, ––––; 140 S Ct at 1767, 1772 (Alito, J., dissenting). Further, the dissenting justices noted that repeated attempts to amend Title VII to include the specific terms sexual orientation and gender identity had proved unsuccessful. Id. at ––––; 140 S Ct at 1777-1778 ( ALITO , J., dissenting); id. at ––––; 140 S Ct at 1823-1824 (Kavanaugh, J., dissenting). Finally, the dissenting justices challenged the majority's conclusion that discrimination based on sexual orientation and gender identity necessarily entails discrimination based on sex, arguing that sex is distinct from these concepts and that employers who discriminate on the basis of sexual orientation and gender identity may not necessarily intend to discriminate on the basis of sex. Id. at ––––; 140 S Ct at 1758-1760 (Alito, J., dissenting); id. at ––––; 140 S Ct at 1828-1829 (Kavanagh, J., dissenting).

In response, the majority reiterated its position that although sexual orientation and gender identity are distinct concepts from sex, discrimination on the basis of the former two concepts necessarily entails discrimination on the basis of the latter. Id. at ––––; 140 S Ct at 1747 (majority opinion). Accordingly, the majority asserted that it was not redefining "sex" to include sexual orientation and gender identity but instead finding that the concepts are inextricably linked. Id. That Congress may not have anticipated this exact application of Title VII's prohibition of discrimination on the basis of sex does not prevent that application of unambiguous statutory text. Id. at ––––, ––––; 140 S Ct at 1747, 1750-1751. Demonstrating this principle in exercise, the majority referred to its decision in Pennsylvania Dep't of Corrections v Yeskey , 524 U.S. 206, 208, 118 S Ct 1952, 141 L Ed 2d 215 (1998), wherein it determined that the directive in the Americans with Disabilities Act (the ADA) that prohibits public entities from discrimination against disabled individuals applied to prisons, despite Pennsylvania's argument that Congress had not predicted that the ADA would apply to prisoners with disabilities when it enacted the ADA. Id. at ––––, 140 S Ct at 1751. See also id. at ––––, ––––; 140 S Ct at 1747, 1752 (noting with regard to Title VII specifically that its accepted but likely unanticipated applications include sexual harassment and motherhood discrimination). The majority explained that the application of protective legislation to politically unpopular groups may not have been foreseen by the specific enacting Congress, but refusing to apply a statute on this ground "would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law's terms." Id. at ––––; 140 S Ct at 1751. Further, to the extent that the dissenting justices argued that Congress's failure to enact amendments to Title VII that would specifically include sexual orientation and gender identity was probative of Congress's intent that "sex" did not include these concepts, the majority noted that "no authoritative evidence" exists explaining why Congress failed to adopt such amendments here. Id. at ––––; 140 S Ct at 1747. Without such evidence, only speculation remains, and "speculation about why a later Congress declined to adopt new legislation offers a ‘particularly dangerous’ basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt." Id. , quoting Pension Benefit Guaranty Corp v LTV Corp , 496 U.S. 633, 650, 110 S Ct 2668, 110 L Ed 2d 579 (1990).

In sum, Bostock held that Title VII's prohibition of employee discharge "because of such individual's ... sex" necessarily encompasses discriminatory employer action on the basis of sexual orientation and gender identity. In so holding, Bostock overruled lower federal precedent that had previously held to the contrary, including DeSantis , Williamson , and DeCintio —the cases on which the Michigan Court of Appeals relied in Barbour . B. ELCRA ANALYSIS

Given Barbour ’s limited independent analysis and the overruling of the federal precedent it relied on in Bostock , as well as the new rule of federal law adopted in Bostock , we find it appropriate to now consider whether the ELCRA encompasses discrimination on the basis of sexual orientation.

Section 302 of the ELCRA prohibits the denial of "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of ... sex ...." MCL 37.2302(a). This Court has previously held that the operative phrase "because of" in the ELCRA establishes a but-for causation standard. Hecht v Nat'l Heritage Academies, Inc , 499 Mich. 586, 606, 886 N.W.2d 135 (2016). See also The American Heritage Dictionary of the English Language (5th ed.) (defining "because of" as "[o]n account of; by reason of"). Under this standard, causation is satisfied where sex is "a determining factor" in the discriminatory action. Matras v Amoco Oil Co , 424 Mich. 675, 682-683, 385 N.W.2d 586 (1986). In other words, causation is established where the discriminatory action would not have occurred but for the sex of the complainant. See id. See also Radtke , 442 Mich. at 379, 501 N.W.2d 155 ("[T]he essence of a sex discrimination civil rights suit is that similarly situated people have been treated differently because of their sex."). Accordingly, we must answer here whether complainants who were denied service because of their sexual orientation would not have been so denied but for their sex. Like its federal counterpart, the ELCRA does not define the term "sex." Drawing from contemporary and historical dictionaries, the parties and amici propose varying definitions of the term "sex" and encourage this Court to affirmatively endorse one definition or another. Plaintiff Rouch World and certain amici propose a narrower definition of "sex" that defines the word as "whether one is a biological male or biological female"; but defendants and other amici propose a more expansive definition that incorporates physiological, structural, and behavioral characteristics. However, like our counterparts at the United States Supreme Court, we conclude that choosing between these definitions is not necessary here because the result of our textual analysis is the same regardless of whether we adopt a narrower or more expansive definition of the term "sex." Accordingly, for the sake of argument, we use but do not affirmatively rule in favor of the more restrictive definition. Using this more restrictive definition of the term "sex" and applying the but-for causation standard to the provision at hand, we conclude that discrimination on the basis of sexual orientation necessarily involves discrimination because of sex in violation of the ELCRA. In so doing, we find persuasive Bostock ’s application of Title VII's but-for standard. While we are encouraged but not bound to consider persuasive Title VII federal caselaw, Radtke , 442 Mich. at 381-382, 501 N.W.2d 155, we find that Bostock offers a straightforward analysis of the plain meaning of analogous statutory language and we agree with its reasoning. A discriminator's choice to "[d]eny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations," on the basis of that individual's sexual orientation is action that is dependent upon the individual's sex under MCL 37.2302(a). Sexual orientation is "inextricably bound up with sex," because a person's sexual orientation is generally determined by reference to their own sex. Bostock , 590 U.S. at ––––, 140 S Ct at 1742. For example, attraction to females in a fellow female is considered homosexual, while the same trait in a male is considered heterosexual; the sex of the individual at issue is necessary to determine their sexual orientation. To discriminate on the basis of sexual orientation, then, also requires the discriminator to intentionally treat individuals differently because of their sex.

Here, plaintiff Rouch World denied female complainant Johnson's request for services related to her wedding with female complainant Oswalt. Had Johnson instead been a male, Rouch World would not have denied its services. In other words, but for Johnson's sex, Rouch World would have rendered its services to Johnson. Although Rouch World's motivation for its denial of services was based on Johnson's sexual orientation, it is nevertheless true that, holding all other facts constant (including the sex of the romantic partner involved), Rouch World discriminated against Johnson because of her sex. Where the discriminator tolerates certain characteristics in one sex but not the other, discrimination on the basis of sex has occurred. Id. at ––––; 140 S Ct at 1737 ("An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex."). In sum, a person's sexual orientation necessarily implies conclusions about their sex, and so "it is impossible to discriminate against a person" for their sexual orientation "without discriminating against that individual based on sex." Id. at ––––; 140 S Ct at 1741. Plaintiff Rouch World disputes this conclusion, arguing that sex discrimination is not a necessary consequence of discrimination based on sexual orientation. It posits that a person or corporation could enact a blanket policy refusing services to persons of a particular sexual orientation without considering sex at all. Said policy would apply to all persons of that sexual orientation, regardless of whether they are male or female. But this assertion ignores the interdependent relationship between sexual orientation and sex. As the United States Supreme Court explained:

[Even if] an employer asked homosexual or transgender applicants to tick a box on its application form, ... the individual applicant's sex [would] still weigh[ ] as a factor in the employer's decision....

... There is no way for an applicant to decide whether to check the homosexual or transgender box without considering

sex. To see why, imagine an applicant doesn't know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words, man, woman, or sex (or some synonym). It can't be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant's sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women.... Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individual's sex .... [Id. at 1746.]

See also Hively v Ivy Tech Community College of Indiana , 853 F.3d 339, 350 (CA 7, 2017) ("It would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ "). Because one's sex is necessary to the identification of sexual orientation, discrimination on that basis is discrimination on the basis of sex. Incorporating an additional consideration—such as the sex preference of that individual—and retitling that pair of considerations does not remove the effect of sex from the equation. See Bostock , 590 U.S. at ––––, 140 S Ct at 1741 ("It doesn't matter if other factors besides the plaintiff's sex contributed to the decision."). In other words, the determination of sexual orientation involves both the sex of the individual and the sex of their preferred partner; referring to these considerations jointly as "sexual orientation" does not remove sex from the calculation. Were this Court to follow the approach proposed by Rouch World and adopted by Justice ZAHRA in dissent, any individual "would be able to rebut a discrimination claim by merely characterizing their action using alternative terminology." Zarda v Altitude Express, Inc , 883 F.3d 100, 114 (CA 2, 2018). Further, plaintiff Rouch World's approach would also apply a group-based analysis to the ELCRA that is not supported by its text. Recall that MCL 37.2302(a) prohibits a person or corporation from "[d]eny[ing] an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" of certain places and services. (Emphasis added.) By using the term "individual" rather than "group," the ELCRA penalizes discriminatory action as applied to individuals, eschewing an analysis that looks instead to the differential treatment of groups. See Bostock , 590 U.S. at ––––, 140 S Ct at 1740-1741. The ELCRA's prohibition of sex discrimination requires a determination whether a specific individual was treated worse than a member of the opposite sex would have been; it does not ask how one sex-based group is treated as compared to another sex-based group. It is, therefore, no defense for a discriminator "to say it discriminates against both men and women because of sex"—instead, this practice doubles rather than dissolves liability because the ELCRA's focus is on individuals rather than groups. Id. at ––––; 140 S Ct at 1741 ("This statute works to protect individuals of both sexes from discrimination, and does so equally."). Were a business to discriminate against both a homosexual male and a homosexual female, the business would be subject to liability under the ELCRA for both because in both cases the business discriminated against the individual for traits it otherwise would have tolerated in a different sex. See id.

Plaintiff Rouch World, along with the dissent, also criticizes this conclusion as inconsistent with the intent of the 1976 Legislature that enacted the ELCRA. It argues that the ELCRA's legislative history demonstrates that the Legislature intentionally chose to exclude protections from discrimination based on sexual orientation, both at the time of its enactment by declining to include the specific language and repeatedly thereafter by rejecting proposed amendments that would have added the specific language. However, the legislative history of a statute is relevant to the statute's meaning only where the statute is ambiguous. See Luttrell v Dep't of Corrections , 421 Mich. 93, 103, 365 N.W.2d 74 (1984). When the statute's language is clear, as it is here, we rely on that plain language as the best evidence of its meaning. Shinholster v Annapolis Hosp , 471 Mich. 540, 549, 685 N.W.2d 275 (2004). Further, Rouch World's assertion that the 1976 Legislature that enacted ELCRA would not have foreseen the application of its prohibition on discrimination "because of ... sex" to sexual orientation does not render the statute ambiguous. As recognized by the United States Supreme Court, "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v Sundowner Offshore Servs, Inc , 523 U.S. 75, 79, 118 S Ct 998, 140 L Ed 2d 201 (1998). So while the principal evil motivating the 1976 Legislature to prohibit discrimination on the basis of sex may have been the preferential treatment of males to the detriment of females, this motivation does not curtail other applications of the plain statutory language. See Bostock , 590 U.S. at ––––; 140 S Ct at 1747 ("Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them."). Notably, both the ELCRA and Title VII have been applied to circumstances likely unanticipated by the enacting Legislature, including pregnancy discrimination, sex-stereotyping cases, same-sex sexual harassment, and retirement accounts. See, e.g., Robinson v Ford Motor Co , 277 Mich App 146, 153, 744 N.W.2d 363 (2007) (allowing liability under the ELCRA for same-sex hostile-work-environment claims); Price Waterhouse v Hopkins , 490 U.S. 228, 256, 109 S Ct 1775, 104 L Ed 2d 268 (1989) (opinion of Brennan, J.; superseded by statute on other grounds) (allowing liability under Title VII because the employer's actions "were motivated by stereotypical notions about women's proper deportment"); Los Angeles Dep't of Water & Power v Manhart , 435 U.S. 702, 98 S Ct 1370, 55 L Ed 2d 657 (1978) (allowing liability under Title VII for requiring women to make larger pension fund contributions because of their statistically greater longevity). Again, the Legislature's failure to foresee particular statutory applications does not prohibit these applications so long as they are consistent with the plain language of the statute. Should the Legislature disapprove of an application of a statute's enacted language, the Legislature remains free to amend the statute. This Court, however, is bound by the language that the Legislature has enacted, not what the parties or amici believe the Legislature should have enacted or what any individual representative believed was enacted. See Oncale , 523 U.S. at 79, 118 S.Ct. 998.

IV. CONCLUSION

Discrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex. Accordingly, the denial of "the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service" on the basis of sexual orientation constitutes discrimination "because of ... sex" and, therefore, constitutes a violation of the ELCRA under MCL 37.2302(a). We reverse the Court of Claims’ decision to the contrary and remand this case for further proceedings consistent with this opinion.

McCormack, C.J., and Bernstein, Cavanagh, and Welch, JJ., concurred with Clement, J.

Zahra, J. (dissenting).

The Court's majority opinion is a victory for a good many Michiganders who worked diligently and unyieldingly for sexual-orientation equality under the law since the enactment of the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq. , more than 45 years ago. I take no issue with the merits of the policy adopted today by a majority of this Court. I also harbor no doubt that my colleagues in the majority are acting in good faith, with pure hearts and the best of intentions.

Yet under the Michigan Constitution, the Legislature—or the people through the exercise of direct democracy—bears the ultimate responsibility to write, amend, or repeal the laws of this state. And this Court's duty is to say what the law is, not what it thinks the law ought to be. But this is exactly what a majority of this Court has done here. The majority opinion declares that the ELCRA's prohibition of discrimination "because of ... sex" precludes discrimination because of sexual orientation—an interpretation that eluded the Legislature, the courts, the Michigan Civil Rights Commission (the MCRC), the Michigan Department of Civil Rights (the MDCR), and the people of Michigan for the vast majority of the ELCRA's 45-year existence. I would affirm the Court of Claims’ conclusion that sexual orientation is not a protected class under the ELCRA. The majority opinion declares that "because of ... sex" means something that nobody in 1976 thought it meant. In so doing, the majority opinion also declares that phrase to encompass something that the enacting Legislature specifically and explicitly considered including but ultimately chose not to embrace. Whatever one's personal views about what the ELCRA ought to prohibit, its language prohibiting discrimination "because of ... sex" does not prohibit sexual-orientation discrimination, and it is not within the constitutional power of this Court to alter that language. If we are to be faithful to our constitutional mandate to say what the law is, we simply cannot pretend that the ELCRA says something that it does not say. Because the majority opinion is inconsistent with these bedrock principles of Michigan's constitutional system, I must dissent.

I. APPLICABLE STANDARD OF REVIEW AND CORRESPONDING RULES OF STATUTORY INTERPRETATION

We review questions of statutory interpretation de novo. " ‘The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature.’ " We begin our interpretive inquiry with the words of a statute because they provide the best evidence of the Legislature's intent and its policy choices. And those words "should be interpreted on the basis of their ordinary meaning and the context within which they are used in the statute." When statutory language is unambiguous, no further judicial construction is required or permitted because the Legislature is presumed to have intended the meaning it plainly expressed by the words it chose.

Moreover, statutory interpretation involves the search for a statute's original public meaning, which is the meaning that the relevant linguistic community (i.e., legislators, courts, agencies, and reasonably informed members of the public) understood it to possess at the time it was enacted into law. "[S]tatutes convey meaning only because members of a relevant linguistic community apply shared background conventions for understanding how particular words are used in particular contexts." Thus, the core of the interpretive enterprise is discovering what the linguistic community's chosen words meant to that community at the time those words became law.

II. ANALYSIS

This Court is constitutionally entrusted with the privilege of interpreting the duly enacted laws of Michigan. But the majority opinion's holding that the ELCRA has always prohibited sexual-orientation discrimination amounts to an exercise of legislative, not judicial, power. The relevant evidence, all of which establishes the historical-linguistic context necessary for an accurate interpretation of the ELCRA, demonstrates that the best reading of the ELCRA is that it prohibits sex discrimination, i.e., differential, negative treatment of persons of one gender vis-à-vis persons of the other gender, not sexual-orientation discrimination. A. THIS COURT IS NOT CONSTITUTIONALLY AUTHORIZED TO MAKE POLICY, AND FOR IT TO DO SO SERIOUSLY UNDERMINES MICHIGAN'S CONSTITUTIONAL ORDER

In 1963, the people of the state of Michigan, in whom "[a]ll political power is inherent," adopted our state's Constitution, which separates the legislative, executive, and judicial powers into three distinct branches: the Legislature, the Governor, and the courts. In so doing, the people of Michigan delegated to the Legislature " ‘the legislative power of the State of Michigan[.]’ " Put another way, Michigan's Constitution vests in the Legislature "the power to make laws," or "the rules by which the duties and rights of every citizen are to be regulated." Michigan's Constitution also vests in the judicial branch of government the power to interpret and apply the law.

The separation of powers is an indispensable part of our constitutional system, and its cultivation and preservation provides the context within which the exercise of liberty is made possible. "By separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise. ‘[T]here [is] no liberty ... if the power of judging be not separated from the legislative and executive powers.’ "

The federal system also features the separation of powers, and by looking to that system, we can better comprehend the function and purpose of the separation of powers in Michigan. The Supreme Court of the United States has explained that the separation of powers is intended to preserve the constitutional system of "checks and balances ... built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." The "first purpose" of the separation of powers is "to prevent an unnecessary and therefore dangerous concentration of power in one branch." The separation of powers is also "intended, in part, to protect each branch of government from incursion by the others."

Pursuant to this constitutional structure, policymaking is fundamentally a legislative prerogative. As between the Legislature and this Court, we have recognized that the Legislature is the superior institution for creating the public policy of this state:

As a general rule, making social policy is a job for the Legislature, not the courts. This is especially true when the determination or resolution requires placing a premium on one societal interest at the expense of another: The responsibility for drawing lines in a society as complex as ours—of identifying priorities, weighing the relevant considerations and choosing between competing alternatives—is the Legislature's, not the judiciary's.^{[ ]}

Accordingly, courts are "not to second-guess [the Legislature's] policy decisions or to change the words of a statute in order to reach a different result." And just because legislation "appears undesirable, unfair, unjust or inhumane does not of itself empower a court to override the [L]egislature and substitute its own solution." "We do not sit as the ‘legislators in chief’ of this state," standing at the ready to update the Legislature's work product that we find " ‘cumbersome,’ ‘impractical,’ or ‘inadequately precise.’ " All this to say, this Court's duty is "to interpret the statute as we find it. The wisdom of the provision in question in the form in which it was enacted is a matter of legislative responsibility with which courts may not interfere." In our system of government, this Court's function is "to fairly interpret a statute as it then exists; it is not the function of the court to legislate." Thus, "[i]n accordance with the constitution's separation of powers, this Court cannot revise, amend, deconstruct, or ignore [the Legislature's] product and still be true to our responsibilities that give our branch only the judicial power." The foregoing principles, when taken together and adhered to, prevent "the judiciary from usurping the powers of the political branches," which also serves to uphold the people's chosen constitutional structure, under which the power and duty to write laws belongs to the Legislature, not this Court. B. THE ELCRA, AS WRITTEN, DOES NOT PROHIBIT SEXUAL-ORIENTATION DISCRIMINATION

I would affirm the Court of Claims’ conclusion that sexual orientation is not a protected class under the ELCRA and, consequently, would also affirm the result in Barbour . The majority opinion fails to read "because of ... sex" in its proper context, as those words were understood in 1976, when the Legislature passed the ELCRA. Because the word "sex" is not expressly defined in the ELCRA, the Court may consult dictionary definitions to determine its meaning. The relevant meaning is to be found in dictionaries that existed prior to the ELCRA's enactment (or slightly after, given that " ‘[d]ictionaries tend to lag behind linguistic realities’ " ). The American Heritage Dictionary (1970) provides the following definitions for "sex":

1. a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female , of this classification. 2. Males or females collectively. 3. The sexual urge or instinct as it manifests itself in behavior. 4. Sexual intercourse.^{[ ]}

Similarly, Webster's New Collegiate Dictionary (1976) defines "sex" as follows:

1: either of two divisions of organisms distinguished respectively as male or female[;] 2: the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females[;] 3 a: sexually motivated phenomena or behavior[;] b: SEXUAL INTERCOURSE[;] 4: GENITALIA[.]^{[ ]}

Examples abound. The litigants debate the breadth of the definition of "sex." As noted in the majority opinion, "[p]laintiff Rouch World and certain amici propose a narrower definition of ‘sex’ that defines the word as ‘whether one is a biological male or biological female’; but defendants and other amici propose a more expansive definition that incorporates physiological, structural, and behavioral characteristics." The majority opinion "use[s] but do[es] not affirmatively rule in favor of the more restrictive definition," concluding that defendants prevail even under this narrower definition.

Contrary to the position expressed by defendants and adopted arguendo by the majority opinion, I conclude that the ELCRA's use of "sex" refers to whether one is a biological male or a biological female, as illustrated by the definitions set forth earlier. But, contrary to the majority opinion, I conclude that defendants do not prevail under that narrower definition. This is so because no person familiar with the common usage of the English language in 1976 would have understood the ordinary meaning of "sex" to include "sexual orientation." Simply stated, if discrimination "because of ... sex" retains its original, plain, and single meaning of treating similarly situated biological women differently and worse than similarly situated biological men, and vice versa, then defendants’ argument that the ELCRA prohibits sexual-orientation discrimination on the basis of its prohibition of discrimination "because of ... sex" fails.

Defendants claim, and the majority opinion holds, that plaintiff's refusal to participate in the celebration of complainants’ homosexual marriage amounts to unlawful discrimination "because of ... sex" under the ELCRA, on the ground that plaintiff's refusal necessarily implicates sex. The heart of defendants’ argument is that " ‘[b]ecause one cannot fully define a person's sexual orientation without identifying his or her sex, sexual orientation is a function of sex.’ " But this logic embodies a false premise. Sex can, and does, exist and can be determined without reference to sexual orientation. That is, sexual orientation may depend on sex, but sex does not depend on sexual orientation. Thus, sex and sexual orientation are not equivalent terms. A person need not know anything about another person's biological sex in order to know if that person has a homosexual orientation. For example, if an employer receives a referral that he "should hire Sam, who happens to be a homosexual," the employer could refuse to hire Sam because of his or her sexual orientation without ever even knowing Sam's biological sex. Knowledge about another person's biological sex is not necessary to influence one's actions toward that other person on the basis of his or her sexual orientation. These two terms simply are not interchangeable.

Consider the following hypothetical scenario provided by plaintiffs:

A conference hall has four people request to use their facility on the same day at the same time. The conference hall only has two rooms available so the owner can only approve two of the four people to use the facility. The four people are a straight man, a gay man, a straight woman, and a gay woman. If the owner has a bias against the female "sex," then the owner will approve the requests of the straight man and the gay man. However, if the owner has a bias against a "sexual orientation," then the owner will approve the request of the straight man and the straight woman.

As plaintiffs conclude, this illustrates that sex and sexual orientation are distinct concepts. Clearly, a bias rooted in gender produces one result, whereas a bias rooted in sexual orientation produces an entirely different result. Because the discriminatory results of these biases are different, it is abundantly clear that sex and sexual orientation are not the same. Defendants attempt to avoid this conflict by insisting on a cherry-picked, broader definition of sex, which they proffer contrary to statutory context. But they do not prevail even with that broader definition. Specifically, defendants rely on one of the possible meanings of "sex": "The sexual urge or instinct as it manifests itself in behavior." It is entirely unsurprising that a dictionary includes within its definition of "sex" the desire to engage in sexual activity. But this in no way proves that the ordinary meaning of the word "sex" in 1976, especially as that term was used in the ELCRA, included sexual orientation.

Instead of addressing the actual intent of the ELCRA's drafters, defendants inappropriately argue that the fact that there exists a definition for sex that has to do with sexual activity or behavior means that this meaning of the word must be included among the ELCRA's protections. However, there is no rule of construction suggesting that the Legislature must have intended all possible meanings of a word it used. On the contrary, statutory terms "must be interpreted on the basis of their ordinary meaning and the context in which they are used."

The ELCRA was not enacted to protect the expression of sexual behavior or the act of sexual intercourse, which are possible meanings under defendants’ preferred definition of sex. For example, no reasonable person would conclude that the ELCRA's prohibition on discrimination "because of ... sex" would protect a person from being fired from his or her job for having sexual intercourse while at work, even though that is a possible meaning of "sex." Context and intent matter when interpreting statutes. Just because courts may consult dictionaries for assistance does not mean they must robotically and blindly follow any and all of their definitions. This Court has always recognized and enforced this commonsense rule. When read in context it becomes eminently clear that the plain and ordinary meaning of the word "sex" in 1976 did not include sexual orientation. This conclusion is bolstered by the ELCRA's prepassage history, which shows that the Legislature specifically and explicitly considered adding, but ultimately declined to add, sexual orientation as a protected class in the ELCRA. Before the ELCRA became law, the director of the Detroit Human Rights Department (the DHRD) sent a letter to Representative Perry Bullard, then the chair of the Michigan House of Representatives’ Civil Rights Committee (the Committee). The DHRD's letter flagged what it took to be a flaw in the proposed language of the ELCRA (then House Bill 4055). Unlike the "Declaration of Rights" in the city of Detroit's new charter, HB 4055 did not include sexual orientation as a protected class. The East Lansing Human Relations Commission also sent a letter to Representative Bullard and the Committee, urging the addition of sexual orientation as a protected class. On June 5, 1975, the Committee held a roll-call vote on whether to include sexual orientation, and by a 5 to 3 vote, it declined to add that language. "On the day that the bill was scheduled to be voted out of committee," the committee room was filled with "gay[ ] and lesbian[ ] ... advocates who ... claim[ed] that the proposed law, as drafted, was short sighted" because it did not protect gays and lesbians. Their appeal fell on deaf ears. One of the bill's cosponsors, Representative Mel Larsen, later admitted that it was very unlikely that the ELCRA would have made it out of the House had it been amended to include sexual orientation as a protected class. The Legislature therefore made a political choice to not extend the ELCRA to prohibit sexual-orientation discrimination, and it did so with the understanding that, by not including sexual orientation as a protected class, discrimination on that basis would not be prohibited by the ELCRA. Crucially, when discharging its interpretive responsibilities, this Court has recognized repeatedly that "where the Legislature has affirmatively rejected language that would support an interpretation of a statute, that rejection evidences a legislative intent toward a contrary construction." Again, this Court's interpretive lodestar is the Legislature's intent, best evidenced by the words it chose to comprise a statute, and the Court is "aided in discovering legislative intent ... by examining the proposed legislation [that the Legislature] considered and rejected, contrasted with the provisions as finally adopted." And, "[w]here the Legislature has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to explicitly authorize what the Legislature explicitly rejected." The Supreme Court of the United States has held similarly, explaining that a congressional committee's deletion of a provision from a bill under consideration strongly militates against a judgment that Congress intended a result it had expressly declined to enact. Relatedly, "[f]ew principles of statutory construction are more compelling than the proposition that [the Legislature] does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language." As this Court has explained, the highest quality legislative history

include[s] actions of the Legislature intended to repudiate the judicial construction of a statute, see, e.g., Detroit v Walker , 445 Mich. 682, 697, 520 N.W.2d 135 (1994), or actions of the Legislature in considering various alternatives in language in statutory provisions before settling on the language actually enacted. See, e.g., [ Miles ex rel Kamferbeek , 223 Mich. at 558, 194 N.W. 605 ]. From the former, a court may be able to draw reasonable inferences about the Legislature's intent, even when the Legislature has failed to unambiguously express that intent. From the latter, by comparing alternative legislative drafts, a court may be able to discern the intended meaning for the language actually enacted. ^{[ ]}

These principles of statutory interpretation are dispositive for properly interpreting the ELCRA, and the majority opinion errs by ignoring them in favor of a myopic focus on an erroneous understanding of the original meaning of the ELCRA's text, taken without due consideration of the historical-linguistic context from which the phrase at issue arose.

My interpretation of the ELCRA is not a novel one. Neither the MCRC nor the MDCR, the institutional actors entrusted with enforcing the ELCRA and who have a natural, vested interest in pursuing more expansive, aggressive interpretations of it, understood the ELCRA to prohibit sexual-orientation discrimination until 2018. In 1977, the same year that the ELCRA became effective, the MCRC published a "Sexual Orientation Report and Recommendations." In a 2013 report, the MCRC, discussing that 1977 report, stated that "[p]erhaps the most significant conclusion reached in [the 1977] report was the [MCRC's] statement that the [MDCR] would not handle sexual orientation discrimination cases. The [MCRC] cited a lack of jurisdiction until the State legislature specifically authorized such an addition to its powers under ELCRA." In 1983, the MCRC issued a statement saying that the ELCRA should be amended to prohibit sexual-orientation discrimination. And in 2013, the MCRC issued the aforementioned "Report on LGBT Inclusion Under Michigan Law with Recommendations for Action," which reaffirmed the MCRC's original, longstanding position, held since the ELCRA became effective in 1977, that the ELCRA does not prohibit sexual-orientation discrimination. While an agency's interpretation of a statute is, of course, not binding on us, we should not treat it, as the majority opinion does, as though it is no evidence at all of a statute's meaning. Defendants cannot admit that, for more than 40 years, the MCRC openly acknowledged that it did not understand "sex" to include sexual orientation, and then in the same breath argue that it is suddenly plain and obvious that it does—indeed, that it always has.

Finally, by consulting the Corpus of Historical American English (the COHA), we have strong evidence that the 1970s public understood that the ELCRA would prohibit sex discrimination—differential, negative treatment of members of one sex vis-à-vis members of the other sex —not sexual-orientation discrimination. Availing ourselves of a relatively new tool of statutory interpretation, corpus linguistics, and performing a search for "sex discrimination"—which is what the ELCRA declares unlawful—we note that every single one of the 20 search results generated for the decade preceding the ELCRA's passage into law (i.e., 1966–1976) pertains to differential, negative treatment of persons in terms of gender. There are no references to sexual-orientation discrimination in any of those COHA search results. Not even a hint.

For these reasons, it is a clear violation of the Michigan Constitution's separation of powers for this Court to add by judicial fiat a category to the ELCRA that was specifically rejected by the enacting Legislature and understood for more than 40 years to not exist in the ELCRA by the governmental institutions principally charged with enforcing it, not to mention a former governor, numerous legislators, and informed members of the public. Consequently, we should not read the ELCRA to accomplish something that it plainly and indisputably would have accomplished had sexual orientation been expressly included in it, especially when we know that the Legislature knew how to

achieve that goal if it had wanted to achieve it, given that it has done so in other statutes.

That the Legislature considered adding sexual orientation to the ELCRA but ultimately chose not to do so materially distinguishes this case from Bostock , on which the majority opinion is patterned, thereby requiring a different outcome. Unlike the 88th Congress (1963–1965) that passed Title VII, our Legislature, in its 78th legislative session (1975–1976), is known to have explicitly considered, but ultimately rejected, adding sexual orientation as a protected class under the ELCRA. Why it did not include sexual orientation, even if such information could be known with confidence, is irrelevant. When the Legislature "has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to explicitly authorize what the Legislature explicitly rejected. " That is precisely the situation here. Thus, this Court should not read the ELCRA to cover something that the Legislature specifically and explicitly did not craft it to cover. To

hold otherwise runs afoul of the people's right to govern themselves through their elected representatives in the Legislature.

III. CONCLUSION

This Court's function is to interpret and apply the laws that the Legislature writes. That is not what the majority opinion has done. Instead, it analyzes the words of the ELCRA in a vacuum, stripped from their relevant and critical historical-linguistic context—context that is necessary to make them fully intelligible and to preserve Michiganders’ right to self-government and the constitutional separation of powers. Seizing on the words of the ELCRA in isolation, the majority opinion is thereby able to declare them to mean something that nobody for more than 40 years seriously believed that they meant. The best interpretation of the ELCRA, in light of the available evidence about its original public meaning, is that its prohibition on discrimination in public accommodations "because of ... sex" does not encompass a prohibition on sexual-orientation discrimination. This is all the more obvious given that the Legislature specifically and explicitly considered including sexual orientation as a protected class under the ELCRA but ultimately did not. Though I take no issue with today's outcome, because I do not recognize the manner in which it has been achieved by the majority opinion to be faithful to the judicial role, I dissent.

Viviano, J. (dissenting).

Justice ZAHRA ’s thorough dissent cogently explains why the original public meaning of "sex" when the Elliott-Larsen Civil Rights Act (the ELCRA), MCL 37.2101 et seq. , was passed did not and could not encompass "sexual orientation." I agree with the conclusion he reaches. I write separately, however, to explain how the majority mangles another aspect of the ELCRA. The relevant statutory provision, MCL 37.2302(a), prohibits certain discriminatory actions taken "because of ... sex," among other things. Properly interpreted, this requires that the defendant maintain some prejudice, bias, animus, or belief about "sex" or the other characteristics protected by the statute. In other words, when someone discriminates against another person "because of" that person's "sex," the discrimination results from a belief about or animus against that person's sex. Only once this threshold element is satisfied does one need to consider the degree to which that belief or animus motivated the defendant, e.g., whether the discriminatory motive must be a but-for cause.

Here, that threshold is not satisfied: discrimination on the basis of one's sexual orientation is not discrimination because of some prejudice, bias, animus, or belief about the male sex or the female sex. Consequently, we need not decide whether to adopt a but-for standard. But even if that standard applied, the majority still reaches the wrong outcome. A proper application of the but-for test takes into account the defendant's motive. That means where, as here, no belief or animus about biological sex has been shown, "sex" cannot be a but-for cause of discriminatory actions. Accordingly, I dissent.

I. THE TEXT REQUIRES A DISCRIMINATORY MOTIVE

The ELCRA's general provision states:

The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by

this act, is recognized and declared to be a civil right. [ MCL 37.2102(1).]

Other sections more fully implement this provision. The section that Rouch World allegedly violated is MCL 37.2302 :

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.^{[ 1 ]}

The relevant inquiry is whether an individual is subject to certain adverse actions "because of" his or her "sex." MCL 37.2302(a).

I believe that the majority's decision today, by myopically focusing on the term "because of," fails to adequately account for the original meaning of the full text of MCL 37.2302(a). The statute requires a link between the specified discriminatory actions and a specified protected class or characteristic. When the entire section is considered, it is clear that the connection must be the defendant's discriminatory motive or intent, i.e., he or she must take the discriminatory action because of some belief or animus with regard to the protected characteristic. The but-for test might still fit within this framework, explaining the degree to which the belief or animus must motivate the defendant. But it is unnecessary to decide whether the but-for test or some alternative standard (such as the motivating-factor test, discussed below) applies when a discriminatory motive or intent has not been established. Put differently, to run afoul of the statute, a defendant must have some belief or prejudice about the protected characteristic that prompts him or her to act. Only then is it appropriate to ask how much of a role this motivation played in the action.

A. TEXTUAL ANALYSIS

The majority today eschews any focus on intent and, in doing so, departs from the ordinary meaning of the statute. Following the lead of the United States Supreme Court, the majority here finally adopts the but-for gloss on "because of." The centerpiece of this analysis comes from Bostock v Clayton Co , 590 US ––––, ––––, 140 S Ct 1731, 1739, 207 L Ed 2d 218 (2020) :

And, as this Court has previously explained, "the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’ " University of Tex. Southwestern Medical Center v. Nassar , 570 U. S. 338, 350, [133 S Ct 2517, 186 L Ed 2d 503] (2013) (citing Gross v. FBL Financial Services, Inc. , 557 U. S. 167, 176, [129 S Ct 2343, 174 L Ed 2d 119] (2009) ; quotation altered). In the language of law, this

means that Title VII's "because of" test incorporates the " ‘simple’ " and "traditional" standard of but-for causation. Nassar , 570 U. S. at 346, 360, 133 S.Ct. 2517. That form of causation is established whenever a particular outcome would not have happened "but for" the purported cause. See Gross , 557 U. S. at 176, 129 S.Ct. 2343. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States , 571 U. S. 204, 211–212, [134 S Ct 881, 187 L Ed 2d 715] (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff's sex was one but-for cause of that decision, that is enough to trigger the law. See ibid. ; Nassar , 570 U. S. at 350, 133 S.Ct. 2517.

The first term to consider in MCL 37.2302(a) is "because of." The dictionary definition of that term is "by reason of; on account of." American Heritage Dictionary (2d college ed, 1982), p. 166. See also Webster's New Collegiate Dictionary (1976), p. 98 (same); The Random House Dictionary of the English Language: Second Unabridged Edition (1987) (defining "because of" as "by reason of; due to"), p. 184; The Oxford English Dictionary (2d ed, 1989), p. 41 (defining "because of" as, relevantly, "[b]y reason of , on account of "). "Reason" is relevantly defined as "a basis or cause, as for some belief, action, fact, event, etc...." The Random House Dictionary of the English Language: Second Unabridged Edition (1987). Thus, a person can be said to take an action "because of" sex when sex was a "cause" or "basis" of the person's act.

The words "cause" and "basis" do a lot of work here. "Cause" is defined as "the reason or motive for some human action[.]" Id. Put differently, it is "[a] fact, condition of matters, or consideration, moving a person to action; ground of action; reason for action, motive." The Oxford English Dictionary (2d ed, 1989). Thus, based purely on dictionary definitions, sex is a "cause" when it is the reason, motive, or intent behind the person's action—when it is the fact or consideration that leads a person to take an action. "Basis" is similarly defined as "the groundwork or first principle; that which supports; foundation ...." Webster's New Twentieth Century Dictionary: Unabridged (2d ed, 1977). Sex is the "basis" for an act, then, when it supports or provides a foundation for the act—thus, when the act is discriminatory, sex is the basis when the actor has a prejudice, bias, animus, or belief with regard to a person's sex.

That the motive or intent must constitute a prejudice, bias, or animus against the protected characteristic is readily apparent from the broader statutory context. Although the ELCRA does not contain the phrase "discriminate against"—which is found in the federal counterpart, 42 USC 2000e-2(a)(1) —the requirement of discriminatory animus is inherent in MCL 37.2302(a).² Indeed, the general ELCRA provision, MCL 37.2102(1), expressly prohibits "discrimination because of" various protected characteristics. MCL 37.2302(a) effectuates this prohibition with regard to certain public accommodations. As noted, this provision states that a person shall not "[d]eny an individual the full and equal enjoyment of" certain services, goods, or accommodations. MCL 37.2302(a). To "discriminate" means "to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs rather than according to actual merit; show partiality[.]" The Random House Dictionary of the English Language: Second Unabridged Edition (1987), p. 564. To deny someone access to the goods, services, or accommodations on the basis of his or her sex is obviously a form of discrimination, i.e., it is making a distinction against the person on the basis of the person's sex. Therefore, while MCL 37.2302(a) lacks the phrase "discriminate against," the statute's language means essentially the same thing but is stated more specifically with regard to how the discrimination would occur, i.e., the denial of the good, service, or accommodation.³

Discrimination naturally requires a prejudice, bias, animus, or some belief about a protected class or characteristic. As one scholar has noted, the term "discriminate" is often used with "prejudice," demonstrating a semantic link between the two words. Phillips, The Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (May 11, 2020) (unpublished manuscript), p. 5, available at < https://www.supremecourt.gov/opinions/URLs_Cited/OT2019/17-1618/17-1618-3.pdf> (accessed July 24, 2022). Dictionaries from the relevant period frequently defined "discriminate against" in a manner that "refers to mistreatment based on prejudice directed at members of a discrete group. "⁴ Thus, discrimination against a person "because of ... sex," the scholar concluded, "refers only to adverse treatment that rests on prejudice (or bias)—i.e., loose generalizations or other unfair beliefs, attitudes (indifference, discounting of interests, distaste, antipathy, etc.)—directed at some or all men, or at some or all women. " Id. at 3.

Accordingly, the ELCRA focuses on the motives and beliefs of the defendant with regard to the characteristic at issue. The question in a sex-discrimination case, then, is "whether the defendant employer took a particular adverse employment action against a particular female employee because she is a woman or against a particular male employee because he is a man." Hively v Ivy Tech Community College of Indiana , 853 F.3d 339, 365 (CA 7, 2017) (Sykes, J., dissenting).

B. CASELAW

Our caselaw provides ample support for the conclusion that the ELCRA requires the defendant to maintain a discriminatory motive concerning the characteristics protected by the statute. This motive represents a prejudice, bias, animus, or belief concerning the characteristic itself or people with the characteristic. As this Court has observed, the ELCRA and similar statutes "are addressed to ‘the prejudices and biases’ one race, sex, or religion bears against another." Boscaglia v Mich Bell Tel Co , 420 Mich. 308, 316, 362 N.W.2d 642 (1984) (citation omitted). We have similarly observed that the ELCRA "seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases." Miller v C A Muer Corp , 420 Mich. 355, 363, 362 N.W.2d 650 (1984).

These prejudices and biases are necessarily aimed at the protected characteristics and statuses listed in the statute. In holding that "[t]he clear, unambiguous language of [the ELCRA] protects status, not conduct," we have explained that the statute requires "evidence of discrimination based on one of the protected characteristics" or some "link between the conduct [the plaintiff engaged in] and a protected status." Veenstra v Washtenaw Country Club , 466 Mich. 155, 160, 165-166, 645 N.W.2d 643 (2002). Elaborating, we described the "direct function of the words ‘because of’ " as follows: the ELCRA "merely prohibits actions that are taken with regard to certain types of statuses, ‘because of ’ these characteristics. It does not prohibit actions that are legitimately taken for any other reason. " Id. at 165 n 7, 645 N.W.2d 643 (some emphasis added). Thus, the statute proscribes discrimination that arises from prejudices or biases against one of the listed characteristics or statuses.

In keeping with this understanding, our caselaw has, until today, always stressed that the discriminatory action must be causally linked to the defendant's motives and intent. This is true even though we have—again, until today—never finally settled on a test for determining the degree to which those motives must explain (i.e., be causally related to) the discriminatory action. We have sometimes favored a but-for test and sometimes a motivating-factor test. See Hrapkiewicz v Wayne State Univ Bd of Governors , 501 Mich. 1067, 1067-1069, 910 N.W.2d 654 (2018) ( MARKMAN , C.J., dissenting) (discussing the caselaw).

It appears that our first case to mention the but-for standard was Matras v Amoco Oil Co , 424 Mich. 675, 385 N.W.2d 586 (1986). That age-discrimination case was originally brought under the ELCRA's predecessor (which lacked a provision on sex discrimination), the Fair Employment Practices Act (FEPA), MCL 423.301 et seq. ⁵ As Matras demonstrates, we have long understood that discrimination cases require discriminatory motive:

A jury can find that the discharge was "because of age" even if age was not the sole factor. As accurately expressed in the Michigan Standard Jury Instruction, "[age] does not have to be the only reason, or even the main reason, but it does have to be one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff." Another formulation would be that age is a determining factor when the unlawful adverse action would not have occurred without age discrimination. Alternative expressions of the determining factor concept are "but for causation" or "causation in fact."

In the instant case, the question therefore becomes whether there was sufficient evidence, when the evidence and inferences therefrom are viewed in a light most favorable to Matras, for reasonable jurors to conclude that age discrimination was a determining factor in the decision to discharge him. [ Matras , 424 Mich. at 682-683, 385 N.W.2d 586 (emphasis added; citations omitted; alterations in original).]

We offered varying formulations of the test—"made a difference," "determining factor," and "but-for causation"—but embedded in each was the notion that discriminatory motive is critical.

Other cases applying a but-for test likewise indicate that the defendants’ motives are a key element. In Radtke v Everett , 442 Mich. 368, 383-384, 501 N.W.2d 155 (1993), for example, the plaintiff alleged sexual "harassment on the basis of sex" when her employer allegedly held her down and tried to kiss her. The defendant argued that his conduct was not sexual but romantic. Rejecting this, we stated that "plaintiff need only show that ‘but for the fact of her sex, she would not have been the object of harassment.’ " Id. at 383, 501 N.W.2d 155 (citation omitted). In concluding that she had made this showing, we stated, "The overtures at issue were certainly inferentially sexually motivated: but for her womanhood, Everett would not have held plaintiff down and attempted to solicit romance, if not sex, from her." Id. at 384, 501 N.W.2d 155. While this applies the but-for test, it shows that the test cannot be used without consideration of the defendant's motivation.

More recently, in Hecht v Nat'l Heritage Academies, Inc , we stated: "The ultimate question in an employment discrimination case is whether the plaintiff was the victim of intentional discrimination. In our caselaw, we have interpreted the CRA to require ‘ "but for causation" or "causation in fact.’ " We reaffirm that construction here." Hecht , 499 Mich. 586, 606, 886 N.W.2d 135 (2016), quoting Matras , 424 Mich. at 682, 385 N.W.2d 586 (citation omitted). As in Radtke , we seemed to understand the but-for test as a tool for measuring whether the discriminatory intent was a sufficient cause of the adverse employment action. Again, we stated, "The ultimate question in an employment discrimination case is whether the plaintiff was the victim of intentional discrimination." Hecht , 499 Mich. at 606, 886 N.W.2d 135, citing Reeves v Sanderson Plumbing Prod, Inc , 530 U.S. 133, 153, 120 S Ct 2097, 147 L Ed 2d 105 (2000) ("The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.").

Our cases have also indicated that the term "because of" in the ELCRA requires a showing that consideration of the protected characteristic was a motivating factor in the defendant's decision. In Hazle v Ford Motor Co , 464 Mich. 456, 462, 628 N.W.2d 515 (2001), we explained that if direct evidence of the prohibited "bias" is produced, the case can proceed as in any other civil matter. "Direct evidence," we said, is " ‘evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.’ " Id. (citation omitted). If such evidence is unavailable, then a burden-shifting test applies, under which a rebuttable presumption arises if the plaintiff presents a prima facie case of discrimination: "evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination." Id. at 463, 628 N.W.2d 515. This raises a presumption of discrimination which can be rebutted by evidence of a legitimate, nondiscriminatory reason for its decision. Id. at 464, 628 N.W.2d 515. If this is shown, then the plaintiff must demonstrate the evidence could lead a reasonable trier of fact to believe that "discrimination was a motivating factor for the adverse action ...." Id. at 465, 628 N.W.2d 515 (quotation marks and citation omitted).⁶

The burden-shifting test demonstrates that discriminatory motives are at the heart of the analysis. The test is geared toward determining whether a discriminatory motivation prompted the challenged action. This, in turn, requires deciding whether any nondiscriminatory rationales were mere pretexts. Indeed, in Hazle , we went on to say that the "ultimate factual inquiry made by the jury[ ] [is] whether consideration of a protected characteristic was a motivating factor, namely, whether it made a difference in the contested employment decision." Hazle , 464 Mich. at 466, 628 N.W.2d 515 (emphasis added).

Likewise, in Sniecinski v Blue Cross & Blue Shield of Mich , 469 Mich. 124, 134-135, 666 N.W.2d 186 (2003), we confirmed that discriminatory intent must be shown:

Under either the direct evidence test or the [burden-shifting] test, a plaintiff must establish a causal link between the discriminatory animus and the adverse employment decision.... Under the direct evidence test, a plaintiff must present direct proof that the discriminatory animus was causally related to the adverse employment decision.

The opinion plainly refers to the central requirement of "discriminatory animus" that must be causally related to the discriminatory act. Id.

Consequently, although our Court has used both the motivating-factor and but-for tests, we have always treated the defendant's intent or motivation as the lodestar of the analysis. See Lytle v Malady , 456 Mich. 1, 33, 566 N.W.2d 582 (1997) ("The bottom line is that there must always be evidence upon which reasonable minds could conclude that discrimination was the true motive for the decision."), vacated in part on other grounds 458 Mich. 153, 579 N.W.2d 906 (1998) ; Town v Mich. Bell Tel. Co , 455 Mich. 688, 704, 568 N.W.2d 64 (1997) (" ‘[T]he factual dispute at issue [in a sex-discrimination action] is whether discriminatory animus motivated the employer ....’ ") (citation omitted). That is, we have always looked to what actually motivated the defendant in taking a discriminatory action. And we have likewise indicated that the statute covers discrimination based on prejudice, bias, animus, or beliefs about a certain characteristic.

Others, including the United States Supreme Court, have endorsed this view in cases addressing similar statutory language.⁷ Although the Supreme Court in Gross , 557 U.S. at 176, 129 S.Ct. 2343, indicated that the phrase "because of" entailed a but-for analysis, it also went on to express its statutory interpretation in the language of the dictionary, stating that "the ordinary meaning of the [Age Discrimination in Employment Act's] requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act." Elsewhere, the Supreme Court relied on this portion of Gross to conclude "that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action." Nassar , 570 U.S. at 352, 133 S.Ct. 2517 (emphasis added). In other words, in the context of an anti-retaliation provision of Title VII, the Court focused on the defendant's desire or intent. See generally Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge: Harvard University Press, 1995), p. 160 (noting that in disparate treatment cases, the issue is whether "the defendant's conduct was actuated by some illegitimate motive").

Justice Alito has also taken this approach. See Texas Dep't of Housing & Community Affairs v Inclusive Communities Project, Inc , 576 U.S. 519, 560, 135 S Ct 2507, 192 L Ed 2d 514 (2015) (Alito, J., dissenting). "What ‘because of’ means is no mystery," Justice Alito wrote, pointing to Gross ’s use of the ordinary dictionary definition. Id. "Nor is this understanding of ‘because of’ an arcane feature of legal usage. When English speakers say that someone did something "because of" a factor, what they mean is that the factor was a reason for what was done." Id. "Put another way, ‘the terms [after] the "because of" clauses in the [Fair Housing Act (FHA)] supply the prohibited motivations for the intentional acts ... that the Act makes unlawful.’ " Id. at 561, 135 S Ct 2507 (citation omitted). Thus, "[u]nder a statute like the FHA that prohibits actions taken ‘because of’ protected characteristics, intent makes all the difference." Id. at 561-562, 135 S Ct 2507.

In a similar context, the Supreme Court has further described how discrimination operates with regard to the relationship between intent and a protected characteristic. In Bray v Alexandria Women's Health Clinic , 506 U.S. 263, 113 S Ct 753, 122 L Ed 2d 34 (1993), the Court examined 42 USC 1985(3), which prohibits private conspiracies that "depriv[e] ... any person or class of persons of the equal protection of the laws ...." This language, the Court explained, required showing (among other things) "that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action’ ...." Bray , 506 U.S. at 268, 113 S.Ct. 753, quoting Griffin v Breckenridge , 403 U.S. 88, 102, 91 S Ct 1790, 29 L Ed 2d 338 (1971). The prohibition centered on " ‘invidiously discriminatory motivation ....’ " Bray , 506 U.S. at 268, 113 S.Ct. 753, quoting Griffin , 403 U.S. at 102, 91 S.Ct. 1790. The question in Bray was whether this statute "provide[d] a federal cause of action against persons obstructing access to abortion clinics." Bray , 506 U.S. at 266, 113 S.Ct. 753.

The Court first rejected the argument that the relevant "class" was "women seeking abortion," as such a group merely consisted of individuals desiring to engage in certain conduct. Id. at 269, 113 S Ct 753. The more central argument in favor of finding a cause of action was that efforts to prevent women from accessing abortion clinics amounted to class-based discrimination against "women in general." Id. The Court acknowledged that the "animus" requirement was not limited to behavior that constituted "maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women." Id. at 270, 113 S Ct 753. In other words, the animus (or prejudice or bias) did not have to be malicious, but it did need to be invidious. Moreover, and critically, the motivation had to center on the protected characteristic itself. Discriminatory animus "does demand ... at least a purpose that focuses upon women by reason of their sex —for example (to use an illustration of assertedly benign discrimination), the purpose of ‘saving’ women because they are women from a combative, aggressive profession such as the practice of law." Id.

In Bray , there was no record evidence that the defendants had such an intent. Id. The Court thus went on to analyze the only other theories under which defendants might still be liable: (1) if opposition to abortion necessarily evinced a sex-based intent, or (2) "intent is irrelevant, and a class-based animus can be determined solely by effect." Id. Both theories were wrong. Perhaps, the Court acknowledged, opposition to some activities would be so irrational that it could only be explained by the fact that the activity "happen[s] to be engaged in exclusively or predominantly by a particular class of people ...." Id. In such circumstances, "an intent to disfavor that class can readily be presumed." Id. But opposition to abortion claimed "common and respectable reasons" aside from hatred or condescension toward women as a class. Id. With regard to the need for intent, rather than simply effects, the Court noted that " ‘ "[d]iscriminatory purpose" ... implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.’ " Id. at 271-272, 113 S Ct 753, quoting Personnel Administrator of Massachusetts v Feeney , 442 U.S. 256, 279, 99 S Ct 2282, 60 L Ed 2d 870 (1979). Opposition to abortion, therefore, was not "ipso facto sex discrimination." Bray , 506 U.S. at 273, 113 S.Ct. 753.

Bray demonstrates that discrimination "because of" of a characteristic requires some prejudice, bias, animus, or belief about the protected characteristic. A belief about some other characteristic or conduct—like opposition to a particular sexual orientation—does not suffice. Even if only women engage in some conduct, opposition to that conduct does not necessarily stem from some belief about the female sex. The mere effect on individuals in a protected status is not enough without discriminatory intent related to that status. This is simply how discrimination works. "Discrimination against persons ... is necessarily oriented toward them based on their membership in a certain type of social group." Stanford Encyclopedia of Philosophy, Discrimination (April 2020), § 1.1 < https://plato.stanford.edu/entries/discrimination/> (accessed July 24, 2022) [https://perma.cc/YK2Q-J3WE]. Put differently, discrimination relates to the protected characteristic rather than some other characteristic or conduct that is sometimes associated with the protected characteristic.

Thus, the ordinary meaning of MCL 37.2302, focusing on the defendant's motivations, captures this commonsense view of discrimination. As two scholars recently wrote of the nearly identical language in Title VII, "The statute proscribes employer conduct based on the reasons that caused or explained the conduct (i.e., based on the employer's motivation), and not on other non-reason-based cases." Berman & Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII , 97 Notre Dame L Rev 67, 99 (2021). It is true that, in some contexts, "because of" can mean something other than "motivated by." Id. at 100 n 166, citing Zatz, The Many Meanings of "Because Of": A Comment on Inclusive Communities Project, 68 Stan L Rev Online 68, 75 (2015) (a brief comment arguing that motivation is not always necessary to the causal concepts embedded in the term "because of"). But the scholars note that the other meanings are motivated by nontextualist purposes, and they contend that "the communicative content of ‘because of’ in relevantly similar utterances [to that in Title VII]—say, contexts concerning the wrongfulness or permissibility of acts undertaken by an agent—is most often motivational, making the motivational reading the statute's ‘ordinary meaning.’ " Id.

C. MOTIVE CANNOT BE REMOVED FROM THE ANALYSIS

When motive is removed from the equation, causal statements about discrimination make little sense. An example shows how this is true:

Suppose Libby intends to dine one evening at Riley's Restaurant. En route to Riley's, Libby, a member of the local Libertarian Party, stops at the Party's office for a short organizational meeting. When arriving at Riley's, Libby is chagrined to learn that the restaurant's last table was taken minutes earlier and that it will be accommodating no more diners that evening. Libby's political affiliation was a but-for cause of Riley's declining to serve Libby: if Libby hadn't been a member of the Libertarian Party, they'd have arrived at Riley's ten minutes earlier, in plenty of time to secure the last table. But Riley's did not decline to serve Libby "because of" Libby's political affiliation: that Libby is a Libertarian was unknown to Riley's or any of its agents and was no part of its decisional calculus. Were Libby to sue Riley's, alleging forbidden political-affiliation discrimination, they'd be laughed out of court (twice over). The example generalizes: a fact or event can be a "but-for cause" of some agent's doing something without it being the case that the agent did that thing "because of" that fact or event. (Here, to repeat, Libby's Libertarianism might have been a but-for cause of Riley's not seating them, without it being the case that Riley didn't seat Libby "because of" Libby's Libertarianism.) To gloss the statutory phrase "because of" X to mean "by reason of" or "on account of" is to affirm this critical point. [Bostock Was Bogus , 97 Notre Dame L Rev at 99-100.]

One of the main problems in this example is that Libby's libertarianism is not sufficient to explain the result. That is, the fact that Libby is a Libertarian cannot adequately explain why the restaurant declined to serve her—there are other more immediate factors that fully explain the result, none of which involves any discriminatory motive. No one would say that the restaurant denied Libby public accommodations because of her partisan affiliation. The restaurant does not appear to care about that at all.

In a like manner, defendants who refuse accommodations or employment to someone "because of" that person's sexual orientation do not necessarily care about that person's biological sex. In fact, as in the restaurant example, such defendants need not even know the person's biological sex. See Bostock , 590 U.S. at ––––; 140 S Ct at 1758 (Alito, J., dissenting) ("Contrary to the Court's contention, discrimination because of sexual orientation or gender identity does not in and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: "We do not hire gays, lesbians, or transgender individuals." And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants."). How can a defendant discriminate against a man because he is a man—or a woman because she is a woman—without knowing that the target of the discrimination is actually a man? Such a conclusion can be reached only if the threshold requirement for discriminatory motive or intent is thrown out the window. Because otherwise, in these circumstances, the defendants cannot possibly be acting out of an animus against or any belief about the male (or female) biological sex.

In response to this observation, the majority appears to accept the proposition that sexual orientation is so innately tied to biological sex that one cannot discriminate against the former without also discriminating against the latter. The gist of the contention appears to be that "[i]f a putative non-protected basis for discrimination conceptually depends on the protected characteristics of the plaintiff, then the basis for discrimination is ‘because of’ the relevant protected category as a matter of ordinary language." Bostock Was Bogus , 97 Notre Dame L Rev at 88 (quotation marks and citation omitted). Justice ZAHRA fully reveals the fallacy of this argument.⁸ I would add that the argument is also incorrect because, without the requirement of discriminatory motive regarding a protected characteristic, this mode of analysis is hopelessly reductive. Consider the following example:

Suppose A shoots B, a police officer, out of anti-police animus. In this case, competent English speakers would agree

that "A shot B because B is a police officer." Plausibly if roughly, a police officer is a person whose job is to enforce the law, including by investigating crimes and making arrests. But even if the concept of police officer depends upon and incorporates the concept of a person, competent English speakers would firmly deny that "A shot B because B is a person." [Id. ]

One cannot be a police officer without being a person, yet no one believes that the shooter targeted the officer because he or she was a person. This is because the shooter had no general animus against people—the animus was against police officers. These are different things, just as an animus against a certain sexual orientation is not the same thing as an animus against a particular sex.⁹

All this shows that without some anchoring in a discriminatory motive that is linked to a protected characteristic, the but-for test fails to place any meaningful limitations on the analysis. But-for causation (also known as counterfactual causation) is transitive, such that it can stretch back to the big bang: "if [event] e counterfactually depends on d (so d causes e ), and d counterfactually depends on c (so c caused d ), then c causes e. This means that the number of causes for any given event e is staggeringly large, in each case reaching back to the big bang that apparently began this whole show." Moore, For What Must We Pay? Causation and Counterfactual Baselines , 40 San Diego L Rev 1181, 1220 (2003). One might say in all seriousness, "But for the big bang, I would not have spilled this pasta sauce on my shirt." But no one would say that I spilled the sauce "because of" the big bang.¹⁰

D. CONCLUSION AND RESPONSIVE ARGUMENTS

Consequently, I believe that, regardless of whether MCL 37.2302 involves a but-for causation test, there is a threshold requirement that the majority ignores: discriminatory motive or intent. The statute applies only if the defendant takes a prohibited action as a result of a prejudice, bias, animus, or belief with regard to the particular protected characteristic. For example, a man is discriminated against "because of" his sex if the defendant acted because of the defendant's bias, prejudice, animus, or belief with regard to men.¹¹ My interpretation does not disturb the potential application of the ELCRA to interracial marriage or sex stereotypes. One argument that has been put forward to justify the result reached by the majority is that any other view of the statute would preclude the ELCRA from prohibiting discriminatory actions because of interracial marriage. Amicus American Civil Liberties Union (ACLU) says that an employer would violate the ELCRA by discriminating against employees in interracial marriages because such discrimination would be "because of ... race." This is true, the ACLU states, even though such a policy applies equally to all races (just as a policy against homosexuals applies to members of both sexes). See also Bostock , 590 U.S. at ––––; 140 S Ct at 1765 (Alito, J., dissenting) (noting the argument: "So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks ‘because of such individual's race’? This employer would be applying the same rule to all its employees regardless of their race."). One immediate distinction between the present case and interracial marriage, however, is the historical roots of the latter: "[H]istory tells us," Justice Alito observed, that discrimination on the basis of an interracial relationship "is a core form of race discrimination." Id. Under my interpretation, the distinction between the two cases goes deeper. The motivation in each situation is different. In the interracial-marriage context, the motivation "has nothing to do with marriage, and everything to do with race: racism and white supremacy. But opposition to same-sex marriage has nothing to do with sexism or male (or female) supremacy." Anderson, On the Basis of Identity: Redefining "Sex" in Civil Rights Law and Faulty Accounts of "Discrimination" , 43 Harv J L & Pub Pol'y 387, 416-417 (2020). Any animus against same-sex relationships does not similarly flow to one sex or the other. See Hively , 853 F.3d at 368 (Sykes, J., dissenting) ("[M]iscegenation laws are inherently racist. They are premised on invidious ideas about white superiority and use racial classifications toward the end of racial purity and white supremacy. Sexual-orientation discrimination, on the other hand, is not inherently sexist. No one argues that sexual-orientation discrimination aims to promote or perpetuate the supremacy of one sex."); cf. Anderson, Disagreement Is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage , 16 Geo. J. Law & Pub. Pol'y 123, 124 (2018) (rejecting the argument that individuals holding the view that marriage should be between one man and one woman are motivated by animus rather than "traditions [that] teach that there is a distinct value in the one-flesh union that only man and woman can form, and in the kinship ties that such union offers children").

In addition, my interpretation would not have any effect on the potential applicability of the ELCRA to sex stereotypes.¹² The ACLU argues here that discrimination on the basis of sexual orientation amounts to sex stereotyping because it punishes an individual for failing to conform to sex-based expectations about his or her behavior. Justice Alito responded to this very argument in his Bostock dissent, noting that perhaps in some cases there are traits associated with homosexuals (that would be tolerated or welcomed in a member of the opposite sex) that lead to discrimination. Bostock , 590 U.S. at ––––, 140 S Ct at 1764 (Alito, J., dissenting). That is not the case where the discrimination stems directly from sexual orientation itself, rather than from traits associated with that orientation. When defendants discriminate on the basis of sexual orientation, they are not discriminating based on a trait solely related to men or to women. Thus, a policy based on sexual orientation does not have a discernable effect on or aim against one biological sex over the other. Neither sex is being "exposed to" adverse actions "to which members of the other sex are not exposed." Harris v Forklift Sys, Inc , 510 U.S. 17, 25, 114 S Ct 367, 126 L Ed 2d 295 (1993) (Ginsburg, J., concurring) ("The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.").

Consider, too, that if the ACLU's argument is correct, it is hard to see how discrimination against heterosexuals would be covered by the statute. The United States Court of Appeals for the Seventh Circuit has stated, "Viewed through the lens of the gender non-conformity line of cases, Hively [the plaintiff] represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual." Hively , 853 F.3d at 346. If Hively ’s logic is correct, what happens if a homosexual employer fires an employee for being heterosexual and not homosexual? If heterosexuality is a stereotype of men and women, then homosexuality is not—as a result, discrimination against an employee for not being homosexual (i.e., for being heterosexual) would not punish that employee for failing to adhere to sex stereotypes. The ELCRA would therefore protect discrimination "because of" sexual orientation only in favor of homosexuality.

Accordingly, MCL 37.2302(a) does not prohibit discrimination "because of" sexual orientation. Such discrimination is not encompassed by the statute's prohibition of sex discrimination. Applying this interpretation in cases like the present is simple.¹³ No one contends that plaintiffs here are motivated by any prejudice, bias, or animus against, or belief about, men qua men or women qua women. They are not accused of misogyny or misandry. Instead, they hold certain views—prejudices, biases, anima, or beliefs—concerning homosexuality. These beliefs—and not anything related to a view on biological sex—are at the center of their policies. The statute simply does not extend this far.

II. THE MAJORITY MISAPPLIES THE BUT-FOR TEST

By reading the motive requirement out of the statute, the majority sets itself up for failure in applying the but-for test. This is because the factual scenarios the majority compares under that test lack the fact most critical to plaintiffs’ mind in the present case: sexual orientation. Without that fact in the analysis, the majority is able to reach the result it desires. But to do so, the majority must ignore the statutory requirements explained above and, indeed, common sense about what it means to discriminate against a person based on a protected characteristic.

As the Supreme Court has explained, "a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause." Bostock , 590 U.S. at ––––; 140 S Ct at 1739. As one scholar has argued, "counterfactuals by their nature are difficult to prove with any degree of certainty, for they require the factfinder to speculate what would have happened if the defendant had not done what he did." See Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (New York: Oxford University Press, 2009), p. 84.¹⁴ To reduce the uncertainties inherent in the analysis, the hypothetical world must be the one "most similar to ours ...." Pearl & Mackenzie, The Book of Why: The New Science of Cause and Effect (New York: Basic Books, 2018), p. 104 (on the science of causation); Robertson, Metaphysical Truth vs. Workable Tort Law: Adverse Ambitions? , 88 Tex L Rev 1053, 1061 (2010) ("Traditional tort law has an accepted answer to [Moore's criticism from Causation and Responsibility ], one that blunts [Moore's] ‘indeterminacy’ criticism. The imagined counterfactual world must be the same as the actual world as shown by the evidence in the case in all respects save one: the defendant's wrongful conduct must be corrected to the extent necessary to make the conduct acceptable under plaintiff's theory of the case."). The "imagined correction of the defendant's conduct is the only allowable change, and this change must be done in an intellectually conservative way, employing as little creativity as possible." Metaphysical Truth , 88 Tex L Rev at 1061.

On these terms, which the majority appears to adopt, the test is not met here. The core analysis underlying the majority's reasoning comes from an example offered in Bostock :

[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are

attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. [ Bostock , 590 U.S. at ––––, 140 S Ct at 1741.]

But the but-for test allows changing only one aspect of the real world to create the counterfactual world. And, according to the example, there are only two relevant facts: in the real world the employee is (1) a man, and (2) attracted to men, whereas the comparator (i.e., the counterfactual example) employee is (1) a woman, and (2) attracted to men.

Here is the problem: "This is screamingly false to the facts as stipulated: to the employer's mind , the two employees are not materially identical in all respects except that one is a man and the other a woman; they are also non-identical in the respect that one is gay and the other straight." Bostock was Bogus , 97 Notre Dame L Rev at 106. That fact—the sexual orientation—is dropped out completely from the example despite its being, by all evidence and stipulation, the critical distinction that motivated the employer. In other words, the hypothetical does not "hold[ ] everything constant except the plaintiff's sex" because it also changes the plaintiff's sexual orientation. Hively , 853 F.3d at 366 (Sykes, J., dissenting) (emphasis altered).

Consequently, in the real world and under the statute (as properly interpreted), there are three relevant facts: "the employee is (1) a man, (2) attracted to men, and (3) gay. The comparator is (1) a woman, (2) attracted to men, and (3) heterosexual. " Krishnamurthi, Not the Standard You're Looking For: But-For Causation in Anti-Discrimination Law , 108 Va L Rev Online 1, 7 (2022). The majority's but-for analysis changes two of these facts, not just one.¹⁵ A woman who is attracted to men is straight. True, she would not get fired. But a woman who is attracted to women is gay, and she presumably would get fired. Each comparator (a straight woman attracted to men or a gay woman attracted to women) has two facts that have been changed. "The majority opinion [in Bostock ] doesn't provide a principled reason why we should choose one comparator over the other." Id. As such, even assuming the statute requires but-for causation, plaintiffs would prevail here, as "sex" is not a but-for cause of a discriminatory action when the defendant is motivated by beliefs concerning sexual orientation.¹⁶ Consider another oddity in the majority's analysis, one that does not even require adding a fact to the but-for test: it fails for bisexuals. Put a fired bisexual employee into the framework above: Employee A is (1) a man, and (2) attracted to both men and women. The employer has a policy against bisexuals. Employee A is fired. The comparator is: Employee B is (1) a woman, and (2) attracted to both men and women. Employee B would also be fired. See Not the Standard , 108 Va L Rev Online at 11-12. Therefore, sex is not a but-for cause in these circumstances. The majority's test is thus underinclusive to the extent it attempts to prove that discrimination on the basis of sexual orientation necessarily involves discrimination on the basis of sex.

If the test does not cover all of what the majority promises, it nonetheless portends to cover a great deal else. Suppose an employer asks about an applicant's race in the application paperwork. The applicant lies, thinking it will give him an advantage. He gets hired and, after some time, admits to the lie. A manager learns of this and fires the employee. "[I]t's intuitively clear that if the employer fires the employee for lying on the hiring paperwork about their race, that isn't and shouldn't be actionable discrimination under Title VII as race discrimination. But that is precisely the conclusion we might draw" from the majority's test. Id. at 21. A but-for analysis would proceed as follows: the employee (1) is white, and (2) said he was black on his paperwork. He gets fired for saying he was black. The comparator (1) is black, and (2) said he was black on his paperwork. He does not get fired. Id. Thus, race is a but-for cause and the firing is actionable. This cannot possibly be the law. Consequently, even if some version of the but-for test is the right interpretation of the ELCRA, the majority applies it the wrong way. Plaintiffs’ conduct does not satisfy the but-for test.

III. CONCLUSION

The effect of the majority's decision, as Justice ZAHRA explains, is to expand the ELCRA by judicial fiat to cover discrimination "because of" sexual orientation. To do so, the majority has twisted the meaning of the statute by adopting the logic of the but-for test without the need for the defendant to have any discriminatory intent. This does not reflect the ordinary meaning of the statute or the nature of discrimination. Unintentional discrimination would seem to be an oxymoron, but the majority today endorses it. As a result, the majority has misapplied its own test.¹⁷

The results will be significant for Michigan, as the scope of the ELCRA extends far beyond the statute at issue in Bostock . The ELCRA, for example, covers all employers, whereas Title VII applies to employers with 15 or more employees.¹⁸ Title VII also contains exemptions for religious organizations, see 42 USC 2000e-1(a), 2000e-2(e) ; and other federal statutes offer protections for religious liberty that supersede Title VII's requirements, see Bostock , 590 U.S. at ––––, 140 S Ct at 1754 (discussing the Religious Freedom Restoration Act of 1993, 42 USC 2000bb et seq. ). It does not appear that there are any such statutory provisions applicable to the ELCRA. In this regard, too, the majority has reached its interpretation today without any concern for whether that interpretation violates constitutional protections of religious liberty. This departs from the normal principle that courts will first consider whether an interpretation raises grave constitutional doubts before adopting that interpretation. See Sole v Mich Economic Dev Corp , 509 Mich. 406, 419–420, 983 N.W.2d 733 (2022). Various amici have raised strong arguments that the majority's interpretation trenches on constitutional liberties. Those concerns should have been considered before the Court reached its interpretation here.¹⁹

For these reasons, I dissent.