Religious Groups Seek Protection From LGBTQ+ Discrimination Law

A Sixth Circuit judge on Tuesday seemed unpersuaded that three Christian organizations have standing to sue to prevent Michigan officials from enforcing the state’s anti-discrimination laws against them.

The organizations said they have a credible fear of facing state action for operating according to their religious beliefs as they pertain to LGBTQ+ issues in making employment, education, and medical decisions.

The religious freedom cases are the latest in a slew related to LGBTQ+ rights that courts across the country have reckoned with in recent years.

Christian Healthcare Centers Inc., Catholic parish and parochial school operator Sacred Heart of Jesus Parish and parents of students there, and fellow parish and school runner St. Joseph Parish St. Johns brought the case. They alleged that state civil-rights officials threatened them with a complaint.

Lawyers for the Michigan-based plaintiffs told the three-judge panel for the US Court of Appeals for the Sixth Circuit during oral arguments in Cincinnati that they proved they may face enforcement of the state’s civil rights-focused Elliott-Larsen Civil Rights Act if the court doesn’t step in.

Judge Jane Branstetter Stranch repeatedly asked whether the organizations needed to apply for an exception to the anti-discrimination law or a ruling on whether their desired actions violate state law, and questioned whether they have sufficiently argued that they can bring a case before the Michigan Civil Rights Commission takes any action.

“I think all of us recognize the importance of the issues here and the importance of religious entities’ ability to act on their own faith and beliefs,” Stranch said. “The question here is what does it take to bring a case before a court, as opposed to beginning with the administrative opportunities and seeing that through to understand whether there is standing that remains for individuals who want to bring claims in court.”

The separate but overlapping arguments were relatively light on discussion regarding religious beliefs and mostly focused on case law, process, and standing. Stranch, who led Tuesday’s panel, asked many of the questions, though Senior Judge Helene N. White also chimed in at times.

Judge Eric E. Murphy unsuccessfully tried to get Assistant Michigan Attorney General Kimberly K. Pendrick to answer whether the actions the religious organizations want to take would run afoul of state law or if they would face punishment if they took them.

‘Merely Hypotheticals’

The three appeals by the religious organizations seek to revive the lawsuits they filed against the commission and Attorney General Dana Nessel (D). They essentially seek protection from punitive action for their decisions regarding employment, medical treatment, and education under the First Amendment.

The lawsuits were filed after a 2022 Michigan Supreme Court ruling that agreed with the commission that the act’s prohibition on discrimination “based on sex” includes sexual orientation and gender identity. In March 2023, state lawmakers codified that ruling by adding sexual orientation and gender identity to the list of classes protected from discrimination by law.

Michigan’s laws give Christian Healthcare a choice, its attorney, Bryan D. Neihart, argued.

“It can engage in its religiously motivated activities at the risk of invasive investigations and burdensome administrative proceedings,” said Neihart, of Alliance Defending Freedom, “or it can refrain from those religiously motivated activities, in violation of its religious mission.”

A federal judge in Grand Rapids dismissed all the lawsuits. Each plaintiff argues on appeal that it has standing and that any enforcement would infringe on their First Amendment rights.

Nessel and the commission say the trial judge was correct to dismiss the case because neither has pursued any action related to the state civil-rights laws, and that speculation isn’t enough to sue.

“In this case, it is merely hypotheticals,” Pendrick said. “It is a broad-reaching request that they should have some type of super immunity that they can’t even be subject to an inquiry, and I haven’t seen any authority for that.”

But Cody S. Barnett, an attorney with Alliance Defending Freedom representing Sacred Heart and plaintiff parents, said that “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.”

He also said neither the Sixth Circuit nor the Supreme Court has established that a plaintiff must go through an administrative process before filing such a case.

Becket Fund for Religious Liberty represents St. Joseph Parish St. Johns.

The cases are Christian Healthcare Centers Inc. v. Nessel, 6th Cir., No. 23-1769, argued 6/11/24, Sacred Heart of Jesus Parish v. Nessel, 6th Cir., No. 23-1781, argued 6/11/24, and St. Joseph Parish St. Johns v. Nessel, 6th Cir., No. 23-1860, argued 6/11/24.