(Source: MIRS.news, Published 06/11/2024) Three religious entities argued to a federal appeals court Tuesday that their freedom to exercise their religious beliefs in not hiring anyone from the LGBTQ community does not violate the state's Elliott-Larsen Civil Rights Act (ELCRA). 

The religious entities – Christian Healthcare, St. Joseph Parish St. Johns and Sacred Heart – essentially argued their respective entities want to be able to live its religious values, including noting on their websites that employees must fit their beliefs. 

Attorney Bryan Neihart told the U.S. Sixth Circuit Court of Appeals panel today that they don't want to face legal action from the Department of Civil Rights the way Traverse City-based Studio 8 was when the owner posted on social media that anyone not identifying as a man or woman wasn’t welcome. 

Cody Steven Barnett, who represents Sacred Heart, agreed that his client “lives under the shadow of being prosecuted” similarly because it’s a Christian school. 

“Sacred Heart wants to put, for instance, a statement on its website that affirms its beliefs that God created men and women and that God created marriage for men and women,” he said. “And those are the very types of speech that the Studio 8 hair salon was prosecuted for . . . 

“The Michigan Civil Rights department made it very clear that it was the speech alone that triggered that investigation and so Sacred Heart has no extra protections it can rely on if it posts that statement on its website, which is why it seeks to vindicate its constitutional rights in this pre-enforcement challenge,” he added. 

Assistant Prosecutor Kimberly Pendrick countered that the plaintiffs want a complete exemption from the ELCRA provisions that prohibit discrimination, but the MDCR wants to weigh each case on its own set of circumstances and facts. 

Pendrick also argued the Studio 8 case “is different” because the owner did not claim her comment was based on religious beliefs. 

Circuit Judge Jane Branstetter Stranch asked whether the religious entities sought a bona fide occupational qualification (BFOQ) exemption, which allows some employers to make hiring decisions based on factors including age, religion or national origin. 

Barnett responded bluntly, “We don’t think we need to do that.” 

He argued that the U.S. Supreme Court has held his client doesn’t have to submit to an unconstitutional process to vindicate its constitutional rights and Michigan rarely grants the request, which only lasts for five years. 

“As the Supreme Court said . . .  constitutional rights do not exist on the noblesse oblige of the government,” Barnett argued. “It’s not on Sacred Heart . . . to ask the government whether it can operate according to its constitutional freedoms.” 

Pendrick said BFOQ process doesn’t grant or deny constitutional freedom. The plaintiffs have it if they request it. If they have a BFOQ on a particular position, such as a pastor, and a complaint is filed, it’s already been proven they qualify for the exemption. 

Circuit Judge Eric E. Murphy repeatedly asked Pendrick if the state would disavow whether ELCRA would apply to the religious entities' speech, but she would not, noting that the plaintiffs’ “catch all we-don’t-have-to-answer-your-questions” position isn’t appropriate. 

Barnet also told the panel that Attorney General Dana Nessel’s rhetoric about not trusting a Catholic who comes to their door unless they have a badge and not a rosary leaves his client uneasy. 

Nessel’s comment came during her department’s clergy sexual abuse investigation. 

Pendrick countered that, at best, Nessel’s comment may show some animus, but that doesn’t mean she will violate Michigan law. She also argued that it’s important to note that the AG doesn’t enforce ELCRA – the Michigan Civil Rights Commission and MDCR do. 

“Every day this litigation goes on is a day that Sacred Heart … is not able to live out the Catholic community that it promised parents that it would be because it can’t post statements on its website. It can’t hire employees that it wants to hire. It lives under the shadow of fear that Michigan is going to bring an enforcement action against it simply because it’s existing as a Catholic school,” Barnett said.