By Ben Solis
Gongwer News Service
Two of three churches that sued the state over new protections for sexual orientation and gender identity in the Elliott-Larsen Civil Rights Act would face a threat of enforcement if the law’s provisions stand, the 6th U.S. Circuit Court of Appeals ruled Friday.
That means Christian Healthcare Centers Inc. and Sacred Heart of Jesus Parish Grand Rapids have standing to challenge those new protections at the nexus between the law and the churches’ hiring and enrollment practices.
In a published opinion written by Judge Jane Stranch, joined by Judge Helene White and Judge Eric Murphy, the panel in the consolidated Christian Healthcare Centers Inc. v. Nessel (USCOA Docket No. 23-1769; 1781; 1860) agreed in part that Michigan’s new ELCRA inclusions arguably forbid several of the plaintiffs’ activities as religious institutions.
“And although the threat of enforcement analysis is more nuanced, we conclude that two the plaintiffs – Christian Healthcare and Sacred Heart – have plausibly established a credible threat that the defendants will enforce against them at least some of the challenged provisions of Michigan’s laws,” Stranch wrote.
The ruling affirmed in part the U.S. District Court for the Western District of Michigan’s holding that some of the plaintiffs did not have standing but reversed in part the holding regarding standing for the two of three churches at the center of the initial complaint. That means the two churches can now press their case at the district court.
Stranch and her colleagues wrote that the court had not ruled on the merits of their complaint but were instead remanding that decision to U.S. District Judge Jane Beckering, as well as a decision on whether to grant injunctive relief in the matter.
The church in St. Joseph Parish St. Johns v. Nessel (USWDM Docket No. 22-01154) argued the inclusion breached its religious freedom rights and ability to deny employment to non-heterosexual teachers at is associated parochial school.
Sacred Heart of Jesus Parish, Grand Rapids. v. Nessel (USWDM Docket No. 22-01214) similarly claimed that its hiring and enrollment practices to form “an intentional Catholic community” would be violations of the law and infringe on this speech and free exercise rights, as well as associated parental rights.
Christian Healthcare Centers, Inc. v. Nessel (USWDM Docket No. 22-00787) also argued that the high court’s ruling in Rouch World, LLC v. Department of Civil Rights created a religious freedoms quagmire, and that the expansion infringed on its religious mission and its application of faith in its delivery of health care. The clinics noted that the new interpretation of ELCRA would inhibit its ability to address people who identify as transgender because it operates “its medical practice and manages its employment relationships consistent with its religious beliefs about biology, human sexuality, and other topics would be threatened.”
Beckering previously dismissed each case.
Before the 6th Circuit, the churches and various individual plaintiffs attempted to revive all of the cases, but Stranch and the panel in the consolidated cases revived challenges from just two of three churches.
In the matter involving Christian Healthcare, Stranch noted that “discovery has not yet commenced, and our conclusions regarding standing ‘would have little bearing on the question of standing if a more developed factual record’ casts doubt on whether Christian Healthcare ‘faces a credible threat of enforcement,’” she wrote.
“But at this pleading stage, it is plausible that a complaint would lead to a cognizable injury,” Stranch added. “Christian Healthcare has thus established standing to challenge the ELCRA’s public-accommodation provision, employment provision, and the publication clauses of each provision.”
Stranch said the court’s credible threat analysis for Christian Healthcare was similar to its analysis regrading Sacred Heart.
“Through these allegations, Sacred Heart has sufficiently asserted its intent to publicize speech and conduct to the public that are arguably proscribed by the gender and sexual-orientation clauses of the ELCRA’s public
accommodation and education provisions,” Stranch wrote. “It is plausible that a member of the public would file a complaint with the department regarding Sacred Heart’s activities. Indeed, Sacred Heart has alleged that it has students with gender dysphoria. And given the defendants’ choice not to disavow enforcement or otherwise indicate how they would view such a complaint, it is credible that enforcement would follow.”
St. Joseph, however, did not have standing to challenge the new laws because it did not allege “that it intends to communicate or currently communicates its beliefs or policies regarding gender identity or sexual orientation to the public.”
“For example, although St. Joseph has explained its ‘expectation’ that the public will use its spaces in accordance with biological sex at birth, it has not alleged that its sex-specific rules are ever communicated outwardly,” Stranch wrote. “Similarly, although St. Joseph alleges that ‘moral teachings’ in the Code of Conduct given to teachers and volunteers include teachings regarding gender identity and sexual orientation, the Code does not reference these items. … Without an allegation that its policies regarding gender identity and sexual orientation are ever publicly communicated, members of the public would be unaware of St. Joseph’s policies that arguably discriminate on those bases.”
The decision on whether to issue injunctive relief in the matter will be left up to Beckering in the lower federal court because the 6th Circuit is a court of review, and not one of “first view,” Stranch added.
“It is appropriate to permit the district court to balance the relevant injunction factors – likelihood of success on the merits, danger of irreparable harm, balance of the equities, and the public interest – in the first instance,” she wrote.
Murphy wrote a concurring opinion in which he agreed with the decision and wrote separately to flag a distinction between the question of standing and the merits of the case, which the parties must ultimately confront.
“The parties should not overread this holding. … In my view, the department’s refusal to disclose its position on how ELCRA applies to the specifically alleged conduct and speech goes a long way toward meeting this requirement (for standing),” Murphy wrote. “As my colleagues note, the department has not identified ‘a single additional fact that would be required’ for it to take a position on whether ELCRA applies to the specific conduct and speech. Yet I find its current position vague and contradictory. The department asserts that Christian Healthcare’s and Sacred Heart’s proposed activities do not even arguably fall within ELCRA, but it then refuses to say that it will not enforce the law against the same activities. If the conduct and speech do not even arguably fall within the law, how could the department in good faith try to enforce the law against that conduct and speech?”
The facts also leave an order of operations question yet unclear, Murphy wrote.
“After a court finds that a party has standing to pursue a constitutional challenge because a state law arguably covers its conduct, when (and how) should the court decide whether the law actually covers the conduct?” Murphy wrote. “I would think federal courts must reach this state-law question as part of the merits analysis. … Indeed, even if both parties agree on the statutory question, I have suggested that courts have discretion to reject such stipulations about the meaning of a law.”
The question then becomes: Who wins if the district court finds the churches’ proposed conduct and speech fall outside of ELCRA? Murphy posited two scenarios.
“On the one hand, the plaintiffs often argue in the alternative that a statute does not apply to their conduct and that, if the statute does apply, its enforcement would violate the Constitution. This strategy gives them ‘two shots’ at achieving their end goal,” he wrote. “An injunction against enforcement of a law on statutory grounds or on constitutional grounds will give the plaintiffs the same relief – just under different legal theories. And the declaratory remedy exists just as much to allow courts to resolve questions about the meaning of a statute as it does to resolve questions about the meaning of the Constitution.”
The makeup of the court was just as notable as its opinion in the matter.
Stranch was nominated by former President Barack Obama, while White was a Bush nominee who was at first nominated by former President Bill Clinton. Republicans blocked her appointment for four years before former President George W. Bush pushed her through during his term. Murphy is a nominee of former President Donald Trump.
Gongwer News Service
Two of three churches that sued the state over new protections for sexual orientation and gender identity in the Elliott-Larsen Civil Rights Act would face a threat of enforcement if the law’s provisions stand, the 6th U.S. Circuit Court of Appeals ruled Friday.
That means Christian Healthcare Centers Inc. and Sacred Heart of Jesus Parish Grand Rapids have standing to challenge those new protections at the nexus between the law and the churches’ hiring and enrollment practices.
In a published opinion written by Judge Jane Stranch, joined by Judge Helene White and Judge Eric Murphy, the panel in the consolidated Christian Healthcare Centers Inc. v. Nessel (USCOA Docket No. 23-1769; 1781; 1860) agreed in part that Michigan’s new ELCRA inclusions arguably forbid several of the plaintiffs’ activities as religious institutions.
“And although the threat of enforcement analysis is more nuanced, we conclude that two the plaintiffs – Christian Healthcare and Sacred Heart – have plausibly established a credible threat that the defendants will enforce against them at least some of the challenged provisions of Michigan’s laws,” Stranch wrote.
The ruling affirmed in part the U.S. District Court for the Western District of Michigan’s holding that some of the plaintiffs did not have standing but reversed in part the holding regarding standing for the two of three churches at the center of the initial complaint. That means the two churches can now press their case at the district court.
Stranch and her colleagues wrote that the court had not ruled on the merits of their complaint but were instead remanding that decision to U.S. District Judge Jane Beckering, as well as a decision on whether to grant injunctive relief in the matter.
The church in St. Joseph Parish St. Johns v. Nessel (USWDM Docket No. 22-01154) argued the inclusion breached its religious freedom rights and ability to deny employment to non-heterosexual teachers at is associated parochial school.
Sacred Heart of Jesus Parish, Grand Rapids. v. Nessel (USWDM Docket No. 22-01214) similarly claimed that its hiring and enrollment practices to form “an intentional Catholic community” would be violations of the law and infringe on this speech and free exercise rights, as well as associated parental rights.
Christian Healthcare Centers, Inc. v. Nessel (USWDM Docket No. 22-00787) also argued that the high court’s ruling in Rouch World, LLC v. Department of Civil Rights created a religious freedoms quagmire, and that the expansion infringed on its religious mission and its application of faith in its delivery of health care. The clinics noted that the new interpretation of ELCRA would inhibit its ability to address people who identify as transgender because it operates “its medical practice and manages its employment relationships consistent with its religious beliefs about biology, human sexuality, and other topics would be threatened.”
Beckering previously dismissed each case.
Before the 6th Circuit, the churches and various individual plaintiffs attempted to revive all of the cases, but Stranch and the panel in the consolidated cases revived challenges from just two of three churches.
In the matter involving Christian Healthcare, Stranch noted that “discovery has not yet commenced, and our conclusions regarding standing ‘would have little bearing on the question of standing if a more developed factual record’ casts doubt on whether Christian Healthcare ‘faces a credible threat of enforcement,’” she wrote.
“But at this pleading stage, it is plausible that a complaint would lead to a cognizable injury,” Stranch added. “Christian Healthcare has thus established standing to challenge the ELCRA’s public-accommodation provision, employment provision, and the publication clauses of each provision.”
Stranch said the court’s credible threat analysis for Christian Healthcare was similar to its analysis regrading Sacred Heart.
“Through these allegations, Sacred Heart has sufficiently asserted its intent to publicize speech and conduct to the public that are arguably proscribed by the gender and sexual-orientation clauses of the ELCRA’s public
accommodation and education provisions,” Stranch wrote. “It is plausible that a member of the public would file a complaint with the department regarding Sacred Heart’s activities. Indeed, Sacred Heart has alleged that it has students with gender dysphoria. And given the defendants’ choice not to disavow enforcement or otherwise indicate how they would view such a complaint, it is credible that enforcement would follow.”
St. Joseph, however, did not have standing to challenge the new laws because it did not allege “that it intends to communicate or currently communicates its beliefs or policies regarding gender identity or sexual orientation to the public.”
“For example, although St. Joseph has explained its ‘expectation’ that the public will use its spaces in accordance with biological sex at birth, it has not alleged that its sex-specific rules are ever communicated outwardly,” Stranch wrote. “Similarly, although St. Joseph alleges that ‘moral teachings’ in the Code of Conduct given to teachers and volunteers include teachings regarding gender identity and sexual orientation, the Code does not reference these items. … Without an allegation that its policies regarding gender identity and sexual orientation are ever publicly communicated, members of the public would be unaware of St. Joseph’s policies that arguably discriminate on those bases.”
The decision on whether to issue injunctive relief in the matter will be left up to Beckering in the lower federal court because the 6th Circuit is a court of review, and not one of “first view,” Stranch added.
“It is appropriate to permit the district court to balance the relevant injunction factors – likelihood of success on the merits, danger of irreparable harm, balance of the equities, and the public interest – in the first instance,” she wrote.
Murphy wrote a concurring opinion in which he agreed with the decision and wrote separately to flag a distinction between the question of standing and the merits of the case, which the parties must ultimately confront.
“The parties should not overread this holding. … In my view, the department’s refusal to disclose its position on how ELCRA applies to the specifically alleged conduct and speech goes a long way toward meeting this requirement (for standing),” Murphy wrote. “As my colleagues note, the department has not identified ‘a single additional fact that would be required’ for it to take a position on whether ELCRA applies to the specific conduct and speech. Yet I find its current position vague and contradictory. The department asserts that Christian Healthcare’s and Sacred Heart’s proposed activities do not even arguably fall within ELCRA, but it then refuses to say that it will not enforce the law against the same activities. If the conduct and speech do not even arguably fall within the law, how could the department in good faith try to enforce the law against that conduct and speech?”
The facts also leave an order of operations question yet unclear, Murphy wrote.
“After a court finds that a party has standing to pursue a constitutional challenge because a state law arguably covers its conduct, when (and how) should the court decide whether the law actually covers the conduct?” Murphy wrote. “I would think federal courts must reach this state-law question as part of the merits analysis. … Indeed, even if both parties agree on the statutory question, I have suggested that courts have discretion to reject such stipulations about the meaning of a law.”
The question then becomes: Who wins if the district court finds the churches’ proposed conduct and speech fall outside of ELCRA? Murphy posited two scenarios.
“On the one hand, the plaintiffs often argue in the alternative that a statute does not apply to their conduct and that, if the statute does apply, its enforcement would violate the Constitution. This strategy gives them ‘two shots’ at achieving their end goal,” he wrote. “An injunction against enforcement of a law on statutory grounds or on constitutional grounds will give the plaintiffs the same relief – just under different legal theories. And the declaratory remedy exists just as much to allow courts to resolve questions about the meaning of a statute as it does to resolve questions about the meaning of the Constitution.”
The makeup of the court was just as notable as its opinion in the matter.
Stranch was nominated by former President Barack Obama, while White was a Bush nominee who was at first nominated by former President Bill Clinton. Republicans blocked her appointment for four years before former President George W. Bush pushed her through during his term. Murphy is a nominee of former President Donald Trump.
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