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Thursday, July 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

Sixth Circuit urged to revive challenges to Michigan’s LGBTQ protections

Democratic Governor Gretchen Whitmer signed a bill in 2023 that expanded Michigan anti-discrimination protections to include LGBTQ residents.

(CN) — A Christian health care provider and two Catholic parishes argued before the Sixth Circuit on Tuesday that their trio of lawsuits challenging Michigan’s anti-discrimination law were improperly dismissed.

The Michigan law known as the Elliott-Larsen Civil Rights Act or ELCRA, prohibits various forms of discrimination, including discrimination based on gender identity and sexual orientation.

Those specific protections against sexual orientation and gender identity discrimination were challenged in 2023 in three separate lawsuits filed by health care provider Christian Healthcare Centers, by parish Sacred Heart of Jesus and parents of students at their school and by St. Joseph Parish St. Johns.

The appellate court held a nearly two-hour proceeding Tuesday to hear appeals from the plaintiffs in all three cases.

The Christian plaintiffs claim that Michigan’s LGBTQ protections violate their First Amendment rights by not allowing them to hire employees who believe in their values, and prevents them from making public statements and running their organizations in accordance with those beliefs.

They asked the Sixth Circuit to reverse the district court’s rulings that had dismissed all three cases for lack of standing.

Michigan Assistant Attorney General Kimberly Pendrick, appearing on behalf of the government defendants in all three cases, argued that the Christian plaintiffs did lack standing because the law has not been enforced against them.

“This case has very important elements to it, religious entities have religious freedoms and the state has an interest in eradicating discrimination,” Pendrick said. “The appellants think there is a crossroads here between those two very important interests of the parties, but right now before this court there is no threat of enforcement, there’s been no action taken against the appellants in this case, it is merely hypotheticals.”

Pendrick argued that the plaintiffs were asking for a broad “super immunity” that would even protect them against an inquiry from the state.

U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, questioned Pendrick on whether the threat of a state inquiry into a religious organization is enough to create standing.

“It’s not that they can’t inquire, is just that the inquiry is itself an injury that could create standing, isn’t it?” Murphy asked.

Pendrick responded by saying that she would not consider that an injury, and that inquiries are needed to determine if discrimination has taken place. She added that religious entities are only exempt from ELCRA if they can show a constitutional religious freedom.

Representing Christian Healthcare Centers, attorney Bryan Neihart from the Alliance Defending Freedom, argued that the law’s exemption process is improper.

“It allows Michigan to go on a case-by-case basis of which positions are sufficiently religious or not,” Neihart said.

The exemption, known as a bona fide occupational qualification or BFOQ, allows employers to show that a specific religion, national origin, height or other factor are necessary for a position.

U.S. Circuit Judge Jane Stranch asked Neihart why his client had not first seen if the state would enforce the statute against them.

“Doesn’t that play into the standing analysis here?” Stranch, a Barack Obama, asked.

Neihart responded by saying that the law clearly applies to the plaintiff because they are an employer. 

“It also prohibits Christian Healthcare from making any types of inquiry into a prospective applicant's religious belief, that’s very clear on the statute,” Neihart said. “Those are the types of things that Christian Healthcare wants to do, to be able to fulfill its religious mission, with people who follow, and agree with and abide by its religious beliefs.”

In the other two appeals, Sacred Heart of Jesus was represented by Neihart’s colleague, attorney Cody Barnett, and St. Joseph Parish was represented by the Becket Fund For Religious Liberty attorney William Haun.

“Under Michigan’s theory a plaintiff would never have the ability to bring a pre-enforcement challenge against any new law, until there had been a large pattern of identical comparators that had been prosecuted,” Barnett said.

Barnett also said that Sacred Heart cannot post statements on its website about its beliefs on marriage because of Michigan’s law.

Pendrick responded to that assertion by saying, “One of the things Sacred Heart is indicating, that they want to post and that they can’t, there's nothing the state defendants have done to make them not post what they want to post, that’s a self-inflicted imposed chill.”

She said at the end of the hearing that the plaintiffs had “not met the standing requirement.”

The panel was rounded out by U.S. Circuit Judge Helene White, a George W. Bush appointee.

No date was given for when the court would issue its ruling.

Categories / First Amendment, Government, Law, Religion

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