Christian Healthcare Ctrs. v. Nessel

1

Christian Healthcare Centers, Inc. (23-1769); Sacred Heart of Jesus Parish, Grand Rapids, Jerry Hatley, Robin Hatley, Joseph Boutell, Renee Boutell, Peter Ugolini, and Katie Ugolini (23-1781); St. Joseph Parish St. Johns (23-1860), Plaintiffs-Appellants, v. Dana Nessel, et al., Defendants-Appellees.

Nos. 23-1769, 23-1781, 23-1860

United States Court of Appeals, Sixth Circuit

September 20, 2024

Argued: June 11, 2024

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. Nos. 1:22-cv-00787; 1:22-cv-01214; 1:22-cv-01154-Jane M. Beckering, District Judge.

COUNSEL

ARGUED:

Bryan D. Neihart, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona for Appellant.

Kimberly K. Pendrick, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, for Appellees.

ON BRIEF:

Bryan D. Neihart, Jonathan A. Scruggs, ALLIANCE DEFENDING FREEDOM Scottsdale, Arizona, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., for Appellant.

Kimberly K. Pendrick, Heather S. Meingast, Tonya C. Jeter, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, for Appellees.

Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Chesapeake, Virginia, Frederick W. Claybrook, Jr., CLAYBROOK LLC, Washington, D.C., Randall L. Wenger, INDEPENDENCE LAW CENTER, Harrisburg, Pennsylvania, Miles E. Coleman, Adam B. McCoy, NELSON MULLINS RILEY & SCARBOROUGH LLP, Greenville, South Carolina, Erin N. Kniffin, ETHICS & PUBLIC POLICY CENTER, Washington, D.C., for Amici Curiae.

ARGUED:

Cody S. Barnett, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, for Appellants.

Kimberly K. Pendrick, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, for Appellees.

ON BRIEF:

Cody S. Barnett, ALLIANCE DEFENDING FREEDOM, Lansdowne, Virginia, John J. Bursch, ALLIANCE DEFENDING FREEDOM, Washington, D.C., Ryan J. Tucker, Katherine L. Anderson, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellants.

Kimberly K. Pendrick, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, Cassandra A. Drysdale-Crown, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Chesapeake, Virginia, Randall L. Wenger, INDEPENDENCE LAW CENTER, Harrisburg, Pennsylvania, Miles E. Coleman, Adam B. McCoy, NELSON MULLINS RILEY &SCARBOROUGH LLP, Greenville, South Carolina, for Amici Curiae.

ARGUED:

William J. Haun, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for Appellant.

Kimberly K. Pendrick, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, for Appellees.

ON BRIEF:

William J. Haun, Lori H. Windham, Nicholas R. Reaves, Richard C. Osborne, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for Appellant.

Kimberly K. Pendrick, Tonya C. Jeter, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Detroit, Michigan, Heather S. Meingast, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

Stephen J. van Stempvoort, MILLER JOHNSON, Grand Rapids, Michigan, for Amicus Curiae.

Before: WHITE, STRANCH, and MURPHY, Circuit Judges.

STRANCH, J., delivered the opinion of the court in which WHITE, J. and MURPHY, J., joined. MURPHY, J. (pp. 34-37), delivered a separate concurring opinion.

OPINION

JANE B. STRANCH, Circuit Judge.

In these three related cases, Plaintiffs-Christian Healthcare Centers, a medical service ministry; Sacred Heart of Jesus, a Catholic school joined by several of the school's parents; and St. Joseph Parish St. Johns, a Catholic parish operating a school-challenge aspects of Michigan's antidiscrimination laws. They allege that Michigan's laws chill their speech and conduct in violation of the First and Fourteenth Amendments. The district court dismissed each case for want of standing, reasoning that no Plaintiff had shown that Michigan's laws arguably proscribed its speech or conduct and that, in the alternative, there was no credible threat that Michigan would enforce its laws against any Plaintiff.

We agree only in part. Michigan's laws arguably forbid several of Plaintiffs' pleaded activities. And although the threat of enforcement analysis is more nuanced, we conclude that two Plaintiffs-Christian Healthcare and Sacred Heart-have plausibly established a credible threat that Defendants will enforce against them at least some of the challenged provisions of Michigan's laws. Finally, we leave to the district court the task of evaluating Plaintiffs' requests for injunctive relief in the first instance. All told, the district court's decisions are AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

I. BACKGROUND

A. Michigan's Laws

Each Plaintiff challenges aspects of Michigan's Elliot-Larsen Civil Rights Act (ELCRA). Mich. Comp. Laws § 37.2101 et seq. Christian Healthcare and Sacred Heart also challenge aspects of the state's Equal Accommodations Act (EAA). Mich. Comp. Laws §§ 750.146-147. Relevant provisions of these laws and pertinent events concerning their scope are described below.

1. ELCRA

For just under fifty years, the ELCRA has protected Michiganders from discrimination. See Mich. Comp. Laws § 37.2102(1). The ELCRA's regulations relating to employment, public accommodations, education, and publications are relevant here.

First, the ELCRA prohibits an employer from failing to hire, failing to recruit, firing, or otherwise discriminating against an individual because of enumerated protected characteristics. Id. § 37.2202(1)(a). Employers also may not use hiring applications that elicit information about, or express a preference based on, any protected characteristic. Id. § 37.2206(2)(a), (c). Second, the law prohibits any person from denying an individual the "full and equal enjoyment" of any goods, services, or facilities "of a place of public accommodation or public service" based on the same characteristics. Id. § 37.2302(a). Third, it prevents educational institutions from discriminating with respect to educational benefits, admission, or the institution's terms and conditions because of specified characteristics. Id. § 37.2402(a)-(b). Educational institutions also may not attempt to solicit information about these characteristics for admission purposes. Id. § 37.2402(c). Fourth, the ELCRA regulates publication of statements concerning its substantive provisions: Employers, places of public accommodation, and educational institutions may not publish statements indicating preferences based on protected characteristics. See id. § 37.2206(1) (employers); id. § 37.2302(b) (public accommodations); id. § 37.2402(d) (educational institutions).

The ELCRA also contains language qualifying its application. Most broadly, it is not to "be construed as preventing the [Michigan Civil Rights] [C]ommission from securing civil rights guaranteed by law." Id. § 37.2705(1). Additionally, employers may inquire about protected characteristics or express a preference based on those characteristics where "permitted" to do so "by applicable federal law," id. § 37.2206(2); places of public accommodation may be exempted from the ELCRA's regulations "where permitted by law," id. § 37.2302; and educational institutions may inquire about protected characteristics in admissions decisions if "required by federal law, rule, or regulation," id. § 37.2402(c). The ELCRA's education provisions "related to religion" do not apply to religious schools. Id. § 37.2403. Employers may also apply for an exemption from the ELCRA's employment regulations if a certain protected characteristic "is a bona fide occupational qualification," or BFOQ, "reasonably necessary to the normal operation of the business." Id. § 37.2208. This BFOQ exemption can be either (1) obtained by application to Michigan's Civil Rights Commission (the Commission), which is empowered to investigate the application and approve exemptions for up to five years, or (2) asserted as an affirmative defense in later proceedings. Id.; see Mich. Admin. Code R. 37.25.

The ELCRA and Michigan's administrative code set out the Act's enforcement procedures. Any "person"-a statutorily defined term including Michigan and its subagencies, see Mich. Admin. Code R. 37.2(p)-who is "aggrieved by unlawful discrimination" may submit an ELCRA complaint to Michigan's Department of Civil Rights (the Department). Id. R. 37.4(1). Certain commissioners, directors, and agents authorized by the Commission may also file complaints on the public's behalf. Id. R. 37.4(2). The Department is empowered to investigate filed complaints, including by collecting evidence and requiring witness testimony that is "pertinent to a complaint." Mich. Comp. Laws § 37.2602(c)-(d); see also Mich. Admin. Code R. 37.4(10), 37.14(1). The Department will issue a charge if, "after investigation," it "determines that there are sufficient grounds" to do so. Id. R. 37.6(1). A person or entity charged with discrimination must "file a written verified answer"; if they do not, the charge's allegations are considered admitted. Id. R. 37.11(1), (6). If after a hearing the Commission determines that the ELCRA was violated, it may order monetary and equitable remedies. See Mich. Comp. Laws § 37.2605.

The ELCRA has always prohibited discrimination based on sex, religion, and several other characteristics. In 2018, the Commission adopted Interpretive Statement 2018-1. Through that Statement, the Commission resolved that the ELCRA's phrase "discrimination because of . . . sex" included discrimination based on sexual orientation or gender identity, and instructed the Department to begin processing complaints alleging discrimination on these bases. See Michigan Civil Rights Commission, Interpretive Statement 2018-1 (May 21, 2018), https://perma.cc/D32M-9LMJ.

In 2019, two...