‘We can do better’

Michigan Attorney General Dana Nessel and her home state have taken a dizzying ride on the ridge of history in the last 15 years.

“It’s sort of surreal sometimes,” Nessel said in a phone interview Monday. “Sometimes I can’t believe it’s my life.”

Nessel was honored Wednesday at the 4th Annual City Pulse LGBTQ+ Inclusion Awards.

It started in the nadir of 2004, when the state passed a constitutional amendment barring same-sex marriage, and continued through an epic legal fight, with Nessel in a leading role, that culminated in the Supreme Court’s 2015 recognition of same-sex marriage as a constitutional right.

Nessel’s election in 2018 as the state’s first openly gay holder of statewide office — replacing a notoriously homophobic predecessor, Bill Schuette — completed a trajectory so dramatic even a Hollywood screenwriter would be reluctant to pitch it.

Nessel is not into melodrama. She was reluctant to single out a lightning-bolt moment when she resolved to run for office. But she does recall sitting in a federal district court in Detroit in 2014, with her wife, Alanna Maguire, beside her, enduring insulting “expert” testimony while arguing for the plaintiffs in the DeBoer v. Snyder case challenging Michigan’s same-sex marriage ban. (The case, combined with others, led to Obergefell v. Hodges, the U.S. Supreme Court case that resulted in national recognition of same-sex marriage.)

“Here we are, we’re parents with twin boys, and we had to listen to fabricated testimony, paid for with my tax dollars, that families like ours did not deserve to have legal rights to our own children, and we shouldn’t have the right to marry because we couldn’t possibly appreciate and revere the institution of marriage the way an opposite sex couple could,” she said. “All I could think is, ‘We’re sitting right here, man.’ It’s hard enough as an attorney to hear people talk about your clients that way, but this is very personal.”

Few same-sex marriage-related cases wandered into the weeds of junk social science, but DeBoer v. Snyder was one of them. Nessel recalled a 26-year-old philosophy major telling the judge, on behalf of the state of Michigan, that what really makes a marriage is the act of coitus.

“I think the state paid that kid $30,000,” Nessel said. “Here I’m watching people called to testify by the attorney general’s office to make these specious arguments that were discounted by every court in the land and widely mocked and disparaged because they were so ridiculous. I think that was the moment I thought, ‘My God, Michigan, we can do better than this.’”

“Whiplash” is the word most often used to describe Nessel’s breathtaking reversal of Schuette’s priorities as attorney general, from protecting LGBTQ rights and guarding the Great Lakes to keeping church and state separated.

Where the LGBTQ community is concerned, Nessel invoked Martin Luther King Jr.’s maxim that “the arc of the moral universe is long, but it bends toward justice.”

But she quickly added that the arc is “bending back a little bit right now.”

Several areas of current federal action, she said, should be “very concerning” to the LGBTQ community.

Trump administration rules barring transgender people from serving in the armed forces are well known, but it gets worse.

What worries Nessel most are recently proposed rules from the Department of Health and Human Services that would cut funding from states unless health care providers are allowed to deny medical services to people based on religious viewpoints.

“It’s the biggest breach of the separation between church and state I’ve ever seen in my career,” Nessel said. “It’s horrifying. I can’t think of anything more serious than the thought of a medical professional could legally deny you emergency medical services.”

Nessel’s idea of religious freedom, a phrase often used to justify such denials of treatment, is “to protect people who are being discriminated against because of their religion — a shield.”

“What’s happened lately is that the religious zealots, the right-wing conservatives, are using the First Amendment as a sword, to skewer the rights of others. To me, that is repugnant to all the ideas and concepts of what we’ve been taught to believe our nation was founded on. We are not a theocracy.”

Federal regulations can be reversed if the 2020 elections bring change in Washington, D.C., but that leaves Nessel with a far bigger concern.

“What won’t change is the numbers of federal appointees in the courts by the Trump administration, after the Obama appointees were held up for so long under the auspices of Mitch McConnell and the Republican Senate,” she said.

Courts at every level, from district to appellate to the Supreme Court, are undergoing extreme makeovers.

“As soon as you had a Republican senate and a Republican President — boom, they went and filled all of them pretty quickly, with inexperienced young attorneys with a philosophical bent that’s very dangerous to the LGBTQ community,” Nessel said.

Consequently, even if Trump serves “four years or less,” she predicted “his reach will be very far, for decades to come — for the rest of my lifetime, certainly.” She has already declared that even if Roe v. Wade is overturned by the U.S. Supreme Court, she will not enforce a state abortion ban.

Nessel is hip-deep in plenty of high-profile issues such as prosecuting sex offenders in the Catholic church and investigating culpability in the Flint water crisis, but she’d also like to draw attention to issues she feels are not getting as much ink as they should.

One of these is consumer protection, from suing pharmaceutical companies when they “fraudulently inflate the price of medications” to keeping a lid on utility rate increases. “We are some 30 percent higher than most other states when we pay our gas and electric bills,” she said. “Schuette never challenged the utilities on rate increases, never, so of course the rates went up.”

She is also doing a set of “senior summits” around the state, working with the Supreme Court, both houses of the Legislature and 80 senior advocacy groups to redraw laws against elder abuse and economic exploitation.

Another top priority of Nessel’s is to restore the state’s once-vaunted status as proud steward of the Great Lakes.

“Nothing else that we do, from an economic standpoint, matters, if people can’t access clean drinking water,” she said. “It hasn’t been a priority for the Attorney General’s Office and it should be. We’ve had people who care more about protecting the oil and gas industry and protecting chemical manufacturers. Whether it’s decommissioning Line 5, attacking the PFAS epidemic in our state, going after CAFOs or managing invasive species, we have to have utmost concern for our Great Lakes, because once that’s compromised we’ll never get it back.”

Prior to her historic win in 2018, Nessel, 50, was widely known as the candidate who ran the “penis ad,” which ran in the midst of daily revelations about high-profile men harassing women. The pitch went: “So, when you’re choosing Michigan’s next attorney general, ask yourself this: Who can you trust most not to show you their penis in a professional setting? Is it the candidate who doesn’t have a penis? I’d say so.”

“Are they still talking about that?” she asked. The ad made a lot of people smile, but it drove home a point she strongly wanted to make.

“I was getting so much blowback about how we couldn’t possibly have an all-female ticket for the Democrats, that the voters would never go for it,” she said. “I was horrified by that. I knew that if you had more women in positions of power, you’d have less sexual harassment. I was tackling both issues at once. As it turned out, I was right. Every woman at the top of the ticket won for the Democrats. Maybe it’s a lesson that we should work harder to be a little less sexist and value people for who they are.”