Federal judge dismisses first challenge of Michigan's new anti-discrimination protections

Lansing — A federal judge has dismissed a challenge alleging Michigan's anti-discrimination protections for gay and transgender individuals run counter to constitutional religious protections, ruling the healthcare organization that brought the case lacked standing because it had not yet been subject to enforcement action.

U.S. District Judge Jane Beckering also found that Michigan's Elliott-Larsen Civil Rights Act and the Equal Accommodations Act have protections built into them for religion if an organization can show a "bona fide occupational qualification" that would allow for a religious exemption to take priority.

"Even assuming arguendo that either of these acts 'might' be applied against plaintiff in the future, plaintiff has failed to supply some indication of imminent enforcement, and mere allegations of a 'subjective chill' are alone insufficient to establish an injury-in-fact for standing purposes," wrote Beckering, an appointee of Democratic President Joe Biden.

John Bursch, a lawyer for Christian Healthcare Centers, said the group is considering whether to appeal the decision or file a motion for reconsideration.

Attorney General Dana Nessel celebrated the decision as an affirmation of the religious considerations already in the state law that bans discrimination against gay and transgender individuals.

"This ruling also recognizes that a plaintiff cannot bring speculative claims unsupported by any facts," Nessel said.

Christian Healthcare Centers filed the suit in August, becoming the first group to question the religious freedom implications of a July Michigan Supreme Court ruling that found Michigan's Elliott-Larsen Civil Rights Act included protections for gay and transgender individuals under the definition of sex. The Michigan Legislature cemented protections from discrimination based on sexual orientation and gender identity into law in March.

Christian Healthcare Centers, a Grand Rapids-area nonprofit organization, said it served everyone regardless of religion, race, sex, gender identity or sexual orientation, but would not participate in gender transitions or use pronouns inconsistent with an individual's biological sex. Christian Healthcare Centers also only hires employees who share its faith-based beliefs.

The group argued those practices are now forbidden under the gay and transgender protections in Michigan law, which would put the law in conflict with constitutional protections for religion.

Nessel's office in response argued the healthcare group's claim wasn't ripe for court consideration because it was based on speculation that the law would be applied to the center and that a religious exemption would not be appropriately considered by the department.

The state also argued that individuals worried about enforcement against them have the opportunity to seek a "bona fide occupational qualification" for a religious exemption under the law.

The healthcare centers countered that the court should presume a credible threat of enforcement because the law would criminalize the healthcare center's religiously-motivated, speech, medical practice and employment decisions.

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Bursch has argued in a companion case filed on behalf of a Grand Rapids Catholic school that the bona fide occupational qualification (BFOQ) process is "burdensome, intrusive, expensive and likely futile" and rests on Michigan's subjective appraisal of the legitimacy of religious practices. He added in the filing that Michigan has granted four religious BFOQ exemptions in the nearly 50-year history of the law.

Beckering, in her Wednesday ruling, noted ELCRA in past years has been interpreted so as not to conflict with religious protections in law, noting cases where judges concluded that schools' and dioceses' employment decisions — such as a policy to only employ Catholic teachers at a church-operated school — were protected by religious exemptions.

In other cases, other protected rights under ELCRA tipped the balance the other way, Beckering noted. In 1987, The Michigan Court of Appeals ruled a parochial school could not ban the employment of women teachers if they had preschool age children, finding that ELCRA's protections based on sex did not "constitute an undue burden on defendant’s religious beliefs.” Additionally, the school, the appellate panel ruled, had not sought out a "bona fide occupational qualification" for a religious exemption to apply to the position.

"...the ELCRA expressly provides a form of redress for plaintiff’s concerns about its hiring practices that plaintiffhas not utilized," Beckering wrote.

eleblanc@detroitnews.com