The Michigan Supreme Court approved a new rule Wednesday requiring justices to use preferred pronouns or “other respectful means” to address attorneys.
The first-of-its-kind state court rule, which faced pushback prior to its approval, is now scheduled to take effect Jan. 1. In his dissent, Michigan Supreme Court Justice David Viviano warned the decision to “dabble in politics” would cause the court to “forfeit legitimacy with large portions of the public,” noting that addressing such topics is “sadly consistent with this Court’s recent practice.”
“By once again taking stances in a political debate, the Court will not earn the public’s trust, nor should it,” he wrote. “Rather than instilling confidence, the result, I fear, will be to encourage the view that this Court is a political institution.
Under the new rule, attorneys may request to be addressed as Ms., Mr., or Mx and can select he/him/his, she/her/hers or they/them/theirs pronouns.
“Courts must use the individual’s name, the designated salutation or personal pronouns, or other respectful means that is not inconsistent with the individual’s designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing,” the rule states.
“While Michigan is the first state court to amend its court rules to expressly include such comprehensive protection for personal pronouns—history is made by being the first,” Michigan Supreme Court Justice Kyra Bolden wrote in a concurring opinion.
A board member of the Catholic Lawyers Society of Metropolitan Detroit (CLSMD), which opposed the proposal, told the DCNF in June that it would “force Catholic judges to either affirm an ideology that is directly contrary to Catholic teaching or risk judicial discipline proceedings.”
“We oppose the proposed rule as an unconstitutional attempt to compel speech in violation of the Free Speech Clause of the First Amendment, while also infringing upon judges’ religious liberty rights under the Free Exercise Clause of the First Amendment and the right to worship guaranteed by the Michigan Constitution,” board member Marcia McBrien told the DCNF at the time.
Justice Brian Zahra also penned a dissent, saying he is “deeply troubled” by the proposal’s adoption.
“All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved,” Zahra wrote. “Such hubris has no place within the operation of a judicial branch of state government.”
Zahra noted concerns about religious convictions and said he has “little doubt that this question will one day be resolved by the Supreme Court of the United States.” Michigan Justice Elizabeth Welch addressed religious concerns in her concurring opinion.
“Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that ‘other respectful means’ can be used to address a party who makes a specific pronoun request,” Welch wrote. “Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as ‘Attorney Smith’ or ‘Plaintiff Smith’) does not force anyone to violate their beliefs.”
The American American Bar Association adopted a bench card in February providing guidance for judges on using “LGBTQ+ inclusive language and pronouns.” The card is based on a New York State Unified Court System inclusive language guide adopted in 2022 that instructs judges to avoid gender-specific terms like “ladies and gentleman of the jury” and instead use words like “folks” or “jurors.”
Katelynn Richardson on September 28, 2023
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