Michigan’s highest court is considering a rule change that would require judges to refer to attorneys and litigants by their preferred pronouns.
The Michigan Supreme Court sent a notice on January 18 that it was considering an amendment to Rule 1.109 of the Michigan Court Rules to force courts to comply with attorneys’ and parties’ desired pronouns in speech and in writing. Now, over a dozen Michigan judges and attorneys have expressed concern for what the rule’s implications would mean for free speech and religious liberty.
“Parties and attorneys may … include any personal pronouns in the name section of the caption, and courts are required to use those personal pronouns when referring to or identifying the party or attorney, either verbally or in writing,” the proposed rule states.
Michigan judges and attorneys are writing to the court and speaking out about the problematic amendment. In an eight-page response to the proposed rule, William R. Bloomfield, general counsel for the Diocese of Lansing, said that it would be a direct violation of the First Amendment.
“In brief, requiring courts, i.e., judges, to use a person’s own designated personal pronouns is an unconstitutional violation of free speech and free exercise of religion,” he wrote, adding, “And as vital as the interest in free speech is for ordinary citizens, or groups of citizens, it is perhaps even more important for judges to be free of any compulsory speech.”
Michigan religious liberty attorney Timothy Denney told The Daily Wire that “this proposed preferred pronoun rule would violate the compelled speech principle.”
“The Michigan Supreme Court’s proposed rule to force judges to use attorney’s preferred pronouns violates the First Amendment,” Denney said. “The First Amendment prohibits government from compelling public officials to make statements contrary to their beliefs.”
Denney pointed to Meriweather v. Hartop, a case where the Sixth Circuit ruled that a public college could not force a professor to use the preferred pronouns of a trans-identifying student. That court’s decisions are binding in Michigan.
Twelve Michigan Court of Appeals judges signed a letter opposing the proposed rule change and pointing out the potential legal problems such a rule would cause, such as “bad faith actors” using the rule for “strategic reasons unrelated to the merits of a case.” The judges also questioned if the rule could result in a judgment being reversed for the petty offense of mistakenly using the wrong pronoun.
The judges also mentioned other states such as New York, Massachusetts, and Utah that have addressed the issue “in narrow, prudent ways.” Massachusetts and Utah require parties desiring to be called by their preferred pronouns to inform the court through a “Notice of Pronouns.”
The proposed rule change is another example of the Great Lakes State’s highest court catering to the demands of the LGBTQ community, even when those demands challenge the free speech and religious liberty protections guaranteed in the Constitution. Last summer, the court ruled in a 5-2 decision that the state’s civil rights protections preventing discrimination on the basis of sex also apply to sexual orientation and gender identity, targeting small businesses in the state that are not already subject to federal workplace laws.
The Michigan Supreme Court is receiving comments on the proposed change to Rule 1.109 through May 1.