throbber
Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 1
`
`No. 23-1769
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`
`CHRISTIAN HEALTHCARE CENTERS, INC.,
`Plaintiff-Appellant,
`v.
`DANA NESSEL; JOHN E. JOHNSON, JR.; PORTIA L. ROBERSON; ZENNA FARAJ
`ELHASON; GLORIA E. LARA; REGINA GASCO-BENTLEY; ANUPAMA
`KOSARAJU; RICHARD CORRIVEAU; DAVID WORTHAMS, in their official
`capacities as members of the Michigan Civil Rights Commission,
`Defendants-Appellees.
`
`
`On Appeal from the United States District Court
`for the Western District of Michigan
`Case No. 1:22-cv-00787
`
`
`REPLY BRIEF OF APPELLANT
`CHRISTIAN HEALTHCARE CENTERS, INC.
`
`
`
`
`John J. Bursch
`ALLIANCE DEFENDING FREEDOM
`440 First Street NW, Suite 600
`Washington, DC 20001
`(616) 450-4235
`jbursch@ADFlegal.org
`
`Jonathan A. Scruggs
`Bryan D. Neihart
`Henry W. Frampton, IV
`ALLIANCE DEFENDING FREEDOM
`15100 N. 90th Street
`Scottsdale, AZ 85260
`(480) 444-0020
`jscruggs@ADFlegal.org
`bneihart@ADFlegal.org
`hframpton@ADFlegal.org
`Counsel for Appellant
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 2
`
`TABLE OF CONTENTS
`Table of Authorities ................................................................................. iii
`Summary of the Reply ............................................................................... 1
`Argument ................................................................................................... 3
`I. Michigan’s brief bolsters the conclusion that Christian
`Healthcare faces a credible threat of enforcement. ......................... 3
`A. Michigan admits that its laws arguably apply to
`Christian Healthcare and never disputes the ministry’s
`understanding of how they apply. .......................................... 4
`B. Michigan does not overcome the presumption that
`attaches to Michigan enforcing its laws. ................................ 7
`C. Michigan misconstrues the McKay factors, but
`Christian Healthcare meets them anyway. .......................... 12
`II. Christian Healthcare’s claims are ripe for review, and it will
`suffer an ongoing hardship absent review now. ............................ 18
`III. Michigan’s unlikely exemptions cannot defeat standing and
`ripeness under well-established precedent. .................................. 21
`A.
`Fleeting references to other “laws” do not alleviate
`Christian Healthcare’s credible threat. ................................ 21
`B. Michigan barely mentions the BFOQ, but that doesn’t
`defeat standing or ripeness either. ....................................... 24
`IV. Christian Healthcare deserves a preliminary injunction
`because Michigan does not dispute the ministry’s likely
`success and the ministry meets the other injunction factors. ....... 28
`Conclusion ............................................................................................... 30
`Certificate of Compliance ........................................................................ 31
`
`
`
`i
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`

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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 3
`
`Certificate of Service ............................................................................... 32
`
`
`
`
`
`
`
`ii
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`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 4
`
`TABLE OF AUTHORITIES
`
`Cases
`281 Care Committee v. Arneson,
`638 F.3d 621 (8th Cir. 2011) ............................................................ 6
`303 Creative LLC v. Elenis,
`600 U.S. 570 (2023) ...................................................... 11, 17, 20, 21
`Assemany v. Archdiocese of Detroit,
`434 N.W.2d 233 (Mich. Ct. App. 1988) .......................................... 25
`Babbitt v. United Farm Workers National Union,
`442 U.S. 289 (1979) .................................................. 8, 11, 14, 15, 25
`Bays v. City of Fairborn,
`668 F.3d 814 (6th Cir. 2012) .......................................................... 29
`Benalcazar v. Genoa Township,
`1 F.4th 421 (6th Cir. 2021) ............................................................. 22
`Block v. Canepa,
`74 F.4th 400 (6th Cir. 2023) ..................................................... 12, 13
`Braidwood Management, Inc. v. EEOC,
`70 F.4th 914 (5th Cir. 2023) ..................................................... 11, 17
`Brown v. Kemp,
`86 F.4th 745 (7th Cir. 2023) ........................................................... 24
`Bryant v. Woodall,
`1 F.4th 280 (4th Cir. 2021) ............................................................. 17
`CHKRS, LLC v. City of Dublin,
`984 F.3d 483 (6th Cir. 2021) .......................................................... 23
`City of Boerne v. Flores,
`521 U.S. 507 (1997) ........................................................................ 27
`Doe v. Sundquist,
`106 F.3d 702 (6th Cir. 1997) .......................................................... 29
`
`
`
`iii
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`

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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 5
`
`Dombrowski v. Pfister,
`380 U.S. 479 (1965) ........................................................................ 24
`Employment Division, Department of Human Resources of Oregon v.
`Smith,
`494 U.S. 872 (1990) ........................................................................ 26
`FEC v. Cruz,
`596 U.S. 289 (2022) .................................................................. 20, 25
`Fischer v. Thomas,
`52 F.4th 303 (6th Cir. 2022) ........................................................... 28
`Green Party of Tennessee v. Hargett,
`791 F.3d 684 (6th Cir. 2015) ................................................ 9, 15, 23
`Harris v. Klare,
`902 F.3d 630 (6th Cir. 2018) .......................................................... 28
`Holder v. Humanitarian Law Project,
`561 U.S. 1 (2010) ............................................................................ 11
`Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,
`565 U.S. 171 (2012) ........................................................................ 26
`Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
`515 U.S. 557 (1995) ........................................................................ 29
`In re Allied Supermarkets, Inc.,
`951 F.2d 718 (6th Cir. 1991) .......................................................... 28
`Initiative & Referendum Institute v. Walker,
`450 F.3d 1082 (10th Cir. 2006) ...................................................... 24
`Isaacson v. Mayes,
`84 F.4th 1089 (9th Cir. 2023) ......................................................... 14
`Kenny v. Wilson,
`885 F.3d 280 (4th Cir. 2018) ............................................................ 7
`Kentucky v. Yellen,
`54 F.4th 325 (6th Cir. 2022) ............................................................. 6
`
`
`
`iv
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`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 6
`
`Kiser v. Reitz,
`765 F.3d 601 (6th Cir. 2014) ............................................................ 3
`McKay v. Federspiel,
`823 F.3d 862 (6th Cir. 2016) ............................................................ 4
`McLeod v. Providence Christian School,
`408 N.W. 2d 146 (Mich. Ct. App. 1987) ......................................... 27
`MedImmune, Inc. v. Genentech, Inc.,
`549 U.S. 118 (2007) .......................................................................... 8
`Moon v. Michigan Reproductive & IVF Center, P.C.,
`810 N.W.2d 919 (Mich. Ct. App. 2011) .......................................... 14
`National Federation of Independent Business v. Sebelius,
`567 U.S. 519 (2012) .......................................................................... 8
`National Rifle Association of America v. Magaw,
`132 F.3d 272 (6th Cir. 1997) ............................................................ 7
`Online Merchants Guild v. Cameron,
`995 F.3d 540 (6th Cir. 2021) .......................................................... 18
`Our Lady of Guadalupe School v. Morrissey-Berru,
`140 S. Ct. 2049 (2020) .................................................................... 26
`Peoples Rights Organization, Inc. v. City of Columbus,
`152 F.3d 522 (6th Cir. 1998) .................................................... 17, 23
`Picard v. Magliano,
`42 F.4th 89 (2d Cir. 2022) ................................................................ 6
`Pinney Dock & Transportation Company v. Penn Central
`Corporation,
`838 F.2d 1445 (6th Cir. 1988) ........................................................ 28
`Platt v. Board of Commissioners on Grievances & Discipline of Ohio
`Supreme Court,
`769 F.3d 447 (6th Cir. 2014) ...................................................... 6, 17
`
`
`
`v
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`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 7
`
`Porth v. Roman Catholic Diocese of Kalamazoo,
`532 N.W.2d 195 (Mich. Ct. App. 1995) .......................................... 27
`Regional Rail Reorganization Act Cases,
`419 U.S. 102 (1974) ........................................................................ 19
`Speech First, Inc. v. Schlissel,
`939 F.3d 756 (6th Cir. 2019) .................................................... 13, 16
`Steffel v. Thompson,
`415 U.S. 452 (1974) .............................................................. 8, 23, 27
`Stilwell v. Office of Thrift Supervision,
`569 F.3d 514 (D.C. Cir. 2009)......................................................... 16
`Susan B. Anthony List v. Driehaus,
`573 U.S. 149 (2014) .............................................................. 3, 18, 21
`Telescope Media Group v. Lucero,
`936 F.3d 740 (8th Cir. 2019) .................................................... 11, 17
`Terrace v. Thompson,
`263 U.S. 197 (1923) .......................................................................... 8
`Thomas More Law Center v. Obama,
`651 F.3d 529 (6th Cir. 2011) ............................................................ 8
`United States v. Stevens,
`559 U.S. 460 (2010) .......................................................................... 1
`Universal Life Church Monastery Storehouse v. Nabors,
`35 F.4th 1021 (6th Cir. 2022) ..................................................... 9, 14
`Vidrich v. Vic Tanny International, Inc.,
`301 N.W.2d 482 (Mich. Ct. App. 1980) ............................................ 4
`Virginia v. American Booksellers Association, Inc.,
`484 U.S. 383 (1988) .......................................................................... 8
`Vitagliano v. County of Westchester,
`71 F.4th 130 (2d Cir. 2023) .............................................................. 7
`
`
`
`vi
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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 8
`
`Weishuhn v. Catholic Diocese of Lansing,
`756 N.W.2d 483 (Mich. Ct. App. 2008) .......................................... 25
`Statutes
`MCL 37.2302 ........................................................................................... 10
`MCL 750.147 ....................................................................................... 5, 10
`Regulations
`3 Colo. Code Regs. 708-1:10.14(C)........................................................... 12
`
`
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`
`vii
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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 9
`
`SUMMARY OF THE REPLY
`Government officials are not infallible. Even well-meaning
`officials make mistakes. Some misinterpret the law. Others may do so
`intentionally. That’s why courts do “not uphold an unconstitutional
`statute merely because the Government promise[s] to use it respon-
`sibily”—especially when First Amendment freedoms hang in the
`balance. United States v. Stevens, 559 U.S. 460, 480 (2010).
`But Michigan asks this Court to flip this presumption—to dismiss
`Christian Healthcare Center’s pre-enforcement challenge to laws that
`threaten its free speech and religious freedoms simply because the
`State promises to consider the Constitution post-enforcement. In
`Michigan’s words, the ministry cannot show standing or ripeness
`because the Elliot-Larsen Civil Rights Act (ELCRA) and the Equal
`Accommodations Act (public-accommodations law) “do not proscribe
`activity otherwise protected by the First Amendment.” Resp. Br. 20,
`ECF No. 44. Of course, Michigan never says the ministry’s activities
`actually qualify for this protection. The State wants to keep its enforce-
`ment options open. So it refuses to disavow here while it aggressively
`enforces its laws—and proclaims the need to do so—against religious
`actors elsewhere.
`If this were enough to defeat standing and ripeness, pre-
`enforcement litigation wouldn’t do much. After all, no law may pro-
`scribe activity the First Amendment protects. The question is whether
`
`
`
`1
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`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 10
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`that protection safeguards the ministry’s freedom to use pronouns,
`decline cross-sex hormones, publish certain statements, and make
`employment choices consistent with its faith. That’s a merits question,
`not a standing or ripeness one.
`Christian Healthcare has every reason to fear enforcement.
`Michigan admits its laws are “broad,” concedes they apply to Christian
`Healthcare, describes its enforcement interests as “paramount,” and
`says it deserves an “opportunity to defend the constitutionality of” its
`laws on remand. Resp. Br. 20–21, 33, 52, 58. Michigan never disagrees
`with the ministry’s interpretation of these laws, how these laws apply to
`the ministry’s activities, or how similar laws are applied across the
`country. Courts have found credible threats based on much less.
`Other facts bolster the point. Michigan aggressively enforces its
`laws. The State is prosecuting two faith-owned businesses and Catholic
`Charities, and it has received a complaint against a Catholic medical
`group. In addition, anyone can file a complaint against Christian
`Healthcare just for posting its desired statements or policies. Mean-
`while, the ministry is justifiably chilling its activities to limit exposure.
`In sum, Christian Healthcare (I) has standing and (II) presents
`ripe claims. (III) Michigan’s reliance on vague, someday exemptions do
`not prove otherwise. And (IV) Christian Healthcare deserves a
`preliminary injunction. This Court should reverse the district court and
`order it to grant the ministry’s requested injunction.
`
`
`
`2
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 11
`
`ARGUMENT
`
`I. Michigan’s brief bolsters the conclusion that Christian
`Healthcare faces a credible threat of enforcement.
`Christian Healthcare has standing to sue because the ministry’s
`injury-in-fact is caused by Michigan’s laws and is redressed by a
`favorable decision. Susan B. Anthony List v. Driehaus (SBA List), 573
`U.S. 149, 157 (2014). Michigan mainly disputes injury-in-fact, but it
`also suggests sometimes that Attorney General Nessel does not enforce
`ELCRA. Resp. Br. 26, 32. That’s not accurate. She enforces the law by
`statute and in practice. E.g., MCL 37.2602(b); Rouch World Br., R.22–4,
`PageID#675–84 (defending ELCRA). For that reason, the ministry’s
`ELCRA injuries are caused by and redressable against her. See Kiser v.
`Reitz, 765 F.3d 601, 610 (6th Cir. 2014) (injury was caused by and
`redressable against enforcement officials).
`Moving to Michigan’s main argument, Christian Healthcare meets
`SBA List’s three-part test for injury-in-fact. 573 U.S. at 159. Michigan
`concedes that the ministry engages in activities arguably affected with
`a constitutional interest. Resp. Br. 19. Michigan also confirms that (A)
`its laws arguably cover the ministry’s activities and (B) the ministry
`faces a credible threat of harm. And (C) Michigan’s invocation of McKay
`
`
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`3
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`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 12
`
`v. Federspiel, 823 F.3d 862 (6th Cir. 2016), doesn’t defeat Christian
`Healthcare’s standing because the ministry meets those factors too.1
`
`A. Michigan admits that its laws arguably apply to
`Christian Healthcare and never disputes the
`ministry’s understanding of how they apply.
`Michigan’s response confirms that its laws arguably prohibit
`Christian Healthcare’s activities.
` Michigan admits that Christian Healthcare qualifies as an
`employer and public accommodation under the ELCRA. Resp. Br. 20.
`Michigan then says it’s “unclear” whether the ministry counts as a
`public accommodation under the public-accommodations law. Id. at 21.
`But that’s another way to admit that Christian Healthcare is arguably
`a public accommodation under that law. After all, the law applies to “all
`other places of public accommodation.” MCL 750.146 (emphasis added).
`Michigan courts labeled this wording “comprehensive” and have applied
`it to a health club. Vidrich v. Vic Tanny Int’l, Inc., 301 N.W.2d 482, 484
`(Mich. Ct. App. 1980). These concessions and caselaw show that the
`laws at least arguably cover Christian Healthcare.
`
`
`1 In evaluating jurisdiction, Michigan agrees this Court must accept the
`complaint’s allegations as true. Resp. Br. 14. This Court may also
`consider the ministry’s extra-complaint evidence and judicially
`noticeable materials because Michigan raised a factual attack on
`jurisdiction by relying on affidavits and unsupported evidentiary
`statements about enforcement history. Opening Br. 19–20, 22; Resp. Br.
`28–30, 37.
`
`
`
`4
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`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 13
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`But how do they apply? Exactly as Christian Healthcare has
`described. They require Christian Healthcare to use patients’ chosen
`pronouns regardless of whether the pronouns align with their sex and
`to offer cross-sex hormones. Opening Br. 25–30, ECF No. 18. The laws
`also prevent the ministry from making employment decisions consistent
`with its beliefs and from explaining its pronoun, cross-sex hormone, and
`employment policies publicly. Id. This interpretation derives from the
`laws’ text, caselaw, and Michigan’s legal positions. Id.; Compl., R.1,
`PageID#29–41. Other jurisdictions interpret similar laws in similar
`ways. Id. at PageID#35–37.
`Michigan notes this interpretation but never renounces it. Resp.
`Br. 11, 19. That underscores how the ministry’s desired activities are
`arguably proscribed by statute. If the ministry’s understanding were
`wrong, Michigan would correct it. It hasn’t.
`At most, Michigan muses that it is “unclear” if the public-
`accommodation law’s Publication Ban (MCL 750.147) covers statements
`about sexual orientation and gender identity. Id. at 21 n.6. But
`Christian Healthcare challenged that clause’s application to “sex” and
`other categories. Compl., R.1, PageID#38–40. And Attorney General
`Nessel—who enforces the law—has broadly explained that sexual-
`orientation and gender-identity discrimination is sex discrimination.
`Compl., R.1, PageID#27; Br. on Appeal of Appellants at 10–16, 24–25,
`Rouch World, LLC v. Mich. Dep’t of C.R., 987 N.W.2d 501 (Mich. 2022)
`
`
`
`5
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`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 14
`
`(No. 162482), https://perma.cc/EH2F-BNKB. She never says that she
`interprets “sex” in MCL 750.147 differently.
`Throughout, Michigan assumes that Christian Healthcare must
`show that its activities are actually proscribed by the laws, not just
`arguably proscribed. This mistake explains why Michigan cites possible
`exemptions that might apply to Christian Healthcare, then demands
`identical precedent prohibiting the ministry’s exact activities, Resp. Br.
`20–22, 46–47, as though this were a qualified-immunity inquiry. But
`that asks for too much.
`Christian Healthcare need not prove its “intended conduct is in
`fact proscribed.” Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022). The
`ministry must simply show that its activities “implicate[], if not
`violate[], each provision of the law at issue.” Platt v. Bd. of Comm’rs on
`Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 451 (6th Cir.
`2014) (cleaned up). The ministry meets that implication by offering an
`obviously “plausible interpretation of the statute.” Kentucky v. Yellen,
`54 F.4th 325, 337 (6th Cir. 2022); accord 281 Care Comm. v. Arneson,
`638 F.3d 621, 628 (8th Cir. 2011) (standing where law “could reasonably
`be interpreted as” prohibiting plaintiffs’ activities); Opening Br. 25–30.
`In the end, Michigan—like the district court—conflates standing
`(“arguably” proscribed) with the merits (“actually” proscribed). That is
`inappropriate. Supra § III. Applying the correct standard, Christian
`Healthcare easily clears SBA List’s standard.
`
`
`
`6
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 15
`
`B. Michigan does not overcome the presumption that
`attaches to Michigan enforcing its laws.
`The Supreme Court, this Court, and other courts presume a
`credible enforcement threat when (a) a party alleges an intent to engage
`in conduct arguably proscribed by law and (b) the government refuses to
`disavow enforcement. Opening Br. 31–35.2 This presumption applies
`even more forcefully to new or actively enforced laws. Id. For “it is
`inconceivable that the government would enact a widely publicized law”
`and then “sit idly by” as it is violated. Nat’l Rifle Ass’n of Am. v. Magaw,
`132 F.3d 272, 289 (6th Cir. 1997). Far from rebutting this presumption,
`Michigan confirms it: Michigan never disavows, admits it recently
`amended ELCRA, and proclaims a “paramount” interest in enforcing its
`laws. Resp. Br. 5–9, 58.
`Michigan never addresses this presumption, never distinguishes
`most of the ministry’s cited cases, and never justifies why this Court
`should contradict its own precedent and create a circuit split by
`disregarding this presumption. See EPPC Amici Br. 38–40, ECF No. 34
`(noting circuit split if district court affirmed). Instead, Michigan offers
`two reasons to deny standing. Neither work.
`
`
`2 See Vitagliano v. Cnty. of Westchester, 71 F.4th 130, 138 (2d Cir. 2023)
`(presuming credible threat “in the absence of a disavowal by the
`government”); Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018)
`(acknowledging enforcement “presumption” when a law regulates “the
`class to which the plaintiff belongs” (cleaned up)).
`
`
`
`7
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`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 16
`
`Michigan first emphasizes that Christian Healthcare “has not
`been the subject of any past or pending action” enforcing these brand
`new laws. Resp. Br. 3; id. at 25, 28, 30, 42–43. But this argument
`conflicts with century-old Supreme Court cases. See Terrace v.
`Thompson, 263 U.S. 197, 216 (1923) (noting that plaintiffs were not
`“obliged to take the risk of prosecution” before suing); MedImmune, Inc.
`v. Genentech, Inc., 549 U.S. 118, 128 (2007) (same). Christian
`Healthcare need not “first expose [itself] to actual arrest or prosecution
`… to challenge a statute” that deters its “constitutional rights.” Steffel
`v. Thompson, 415 U.S. 452, 459 (1974). Following Michigan’s “be
`prosecuted now and ask questions later” approach would erode the
`purpose of pre-enforcement actions.
`This point also explains why parties can challenge laws before
`they are enforced against anyone. See Babbitt v. United Farm Workers
`Nat’l Union, 442 U.S. 289, 302 (1979) (standing to challenge provision
`that had “not yet been applied”); Opening Br. 33–35. In fact, standing
`may exist years before a challenged law takes effect. See Virginia v. Am.
`Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988) (standing “before the
`statute became effective”); Thomas More L. Ctr. v. Obama, 651 F.3d
`529, 537 (6th Cir. 2011) (collecting suits filed three to thirteen years
`before law’s effective date), abrogated on other grounds by Nat’l Fed’n of
`Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). Michigan’s demand that
`
`
`
`8
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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 17
`
`the ministry first receive a complaint or some other enforcement notice
`cannot be squared with these decisions.
`Michigan’s second argument fares no better. Michigan rejects any
`enforcement presumption because Christian Healthcare’s cited cases
`involved “statutes that proscribe[d] very specific conduct” (Resp. Br. 34),
`attempting to distinguish Green Party of Tennessee v. Hargett and
`Universal Life Church Monastery Storehouse v. Nabors on this basis.
`But neither case relied on a statute’s specificity to prove a credible
`threat. Hargett found standing because the government did not “explic-
`itly disavow[] enforcing” the law. 791 F.3d 684, 696 (6th Cir. 2015). And
`Nabors found standing because the legislature had recently amended
`the law, and the defendants never gave “clear assurances that they will
`not prosecute … ministers.” 35 F.4th 1021, 1035 (6th Cir. 2022). That’s
`the entire affirmative credible-threat analysis from those cases (though
`these decisions spent time rejecting other arguments like Michigan’s).
`Michigan presses its second argument further. It says the enforce-
`ment presumption doesn’t apply here because although its laws
`“broadly prohibit discrimination,” they impose no “explicit ban on”
`activities like Christian Healthcare’s. Resp. Br. 35. That just
`repackages Michigan’s argument that its laws do not arguably proscribe
`Christian Healthcare’s activities. The ministry need not show an
`“explicit ban.” Supra § I.A. And Michigan’s concession about the laws’
`breadth prove they arguably proscribe Christian Healthcare’s activities.
`
`
`
`9
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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 18
`
`A broad law covers more conduct than a narrow one. So standing is
`easier against the broader law, not vice-versa.
`Even in the credible-threat context, Michigan’s argument falls
`flat. Start with Christian Healthcare’s facial challenge. That challenge
`alleges that the Publication Clause’s ban on statements that might
`make someone feel “objectionable, unwelcome, unacceptable, or
`undesirable” is vague, overbroad, and gives enforcement authorities
`unbridled discretion. MCL 37.2302(b); MCL 750.147; Compl., R.1,
`PageID#39, 68. The crux of such facial challenges is that the law lacks
`clarity about when it applies or that the law applies too broadly.
`Michigan’s “explicit ban” argument would therefore preclude pre-
`enforcement suits to facially unconstitutional laws.
`Michigan’s argument also fails as to Christian Healthcare’s as-
`applied challenges to the Accommodation, Employment, and Publica-
`tion Clauses. Michigan admits that the ministry is an employer and
`public accommodation. Resp. Br. 20–21. So the Clauses—which cover
`employers and public accommodations—apply here. And based on the
`laws’ plain text, caselaw, Michigan’s prior briefing, and enforcement
`history, the Clauses (at least arguably) prohibit Christian Healthcare’s
`desired activities. Supra § I.A; Opening Br. 14–17, 25–30; Hoff Decl. in
`Supp. of Mot. to Suppl. (Hoff Decl.) Ex. 2, ECF No. 19–2 (copy of
`complaint filed against another religious healthcare provider).
`
`
`
`10
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`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 19
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`Michigan’s “explicit ban” argument suffers from a final defect. It
`contradicts caselaw. In Holder v. Humanitarian Law Project, the
`Supreme Court held that the plaintiffs had standing to challenge the
`law as applied to “certain specified activities” related to their speech
`even though the law broadly prohibited “training,” “expert advice or
`assistance,” “services,” and “personnel.” 561 U.S. 1, 14–15 (2010).
`Likewise, the plaintiffs in Babbitt v. United Farm Workers National
`Union had standing to challenge broad “unfair labor” laws as applied to
`their speech that prohibited “dishonest, untruthful and deceptive
`publicity.” 442 U.S. at 301. They had standing even though they did
`“not plan to propagate untruths” and the law had never been applied
`before. Id. at 301–02.
`Following these cases, many courts have held that plaintiffs like
`Christian Healthcare have pre-enforcement standing to challenge
`general anti-discrimination laws that do not mention specific activities
`in their text. See Telescope Media Grp. v. Lucero (TMG), 936 F.3d 740,
`749–50 (8th Cir. 2019) (public-accommodations law); Braidwood Mgmt.,
`Inc. v. EEOC, 70 F.4th 914, 924–30 (5th Cir. 2023) (employment law).
`For example, in 303 Creative LLC v. Elenis, the Supreme Court held
`that a website designer had standing to challenge a public-
`accommodations law, 600 U.S. 570, 580–83 (2023)—even though
`Colorado’s regulations (like Michigan’s) required enforcement officials
`to “follow the interpretations and guidance established in State and
`
`
`
`11
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 20
`
`Federal law, regulations, and guidelines,” 3 Colo. Code Regs. 708-
`1:10.14(C). Rather than rejecting these decisions, this Court should
`follow them and hold that Christian Healthcare has standing.
`
`C. Michigan misconstrues the McKay factors, but
`Christian Healthcare meets them anyway.
`Like the district court, Michigan exaggerates the McKay factors.
`But Christian Healthcare meets those too because Michigan actively
`enforces its law, fails to disavow, and makes enforcement easy.
`Active enforcement. Michigan never denies that it actively
`enforces the ELCRA. Opening Br. 35–36. The State just says this factor
`requires the ministry to identify “a similarly situated religious entity.”
`Resp. Br. 28. This Court recently rejected that argument.
`In Block v. Canepa, a wine merchant challenged a state law that
`limited transportation of liquor, beer, and wine. 74 F.4th 400, 405 (6th
`Cir. 2023). To prove a credible threat, the wine merchant pointed to
`prior prosecutions for liquor and beer transportation. Id. at 410. The
`district court disregarded these prosecutions. Id. at 407. The district
`court said the merchant “fail[ed] to establish a history of enforcing” the
`law “against individuals engaging in [his] desired conduct, i.e., trans-
`porting wine for personal use.” Id. This Court called that analysis
`“flawed.” Id. at 410. The merchant was not “obligated to show” that the
`state “prosecuted people for transporting wine, rather than liquor.” Id.
`
`
`
`12
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 21
`
`Trying to distinguish Block, Michigan misreads it. Michigan says
`the merchant in Block identified an enforcement history against “the
`same, specific conduct.” Resp. Br. 30. But the district court found the
`conduct was not the same—transporting wine was different from
`transporting beer or liquor. And this Court said that difference was
`irrelevant. The merchant—like Christian Healthcare—only needed to
`show that the state generally “prosecutes violations of … the statute at
`issue.” Block, 74 F.4th at 410.3
`Speech First, Inc. v. Schlissel is cut from the same cloth. Michigan
`is right that “bullying and harassment[] were the explicit conduct the
`university policy prohibited.” Resp. Br. 31. And that proves the point.
`The student group in Speech First, Inc. desired to engage in “protected
`speech”—i.e., speech that was not bullying or harassment. 939 F.3d 756,
`766 (6th Cir. 2019). But the prior disciplinary actions “involving
`‘bullying’ or ‘harassing’ misconduct” were still relevant to the
`university’s active enforcement even though those actions involved
`dissimilar conduct from a merits perspective. Id.
`Plus, Christian Healthcare could hardly be faulted for not
`identifying a prosecuted twin because Michigan only recently amended
`
`
`3 Michigan says Block is different because that law did not require
`“consideration of other laws.” Resp. Br. 31. But it did: the Supremacy
`Clause. U.S. Const. art. VI, para. 2. In his suit, the merchant contended
`that the law violated the Commerce Clause. Block, 74 F.4th at 406.
`
`
`
`13
`
`

`

`Case: 23-1769 Document: 47 Filed: 12/21/2023 Page: 22
`
`the ELCRA. Resp. Br. 7–9, 28. Michigan acknowledges it would not be
`“surprising[ ]” if the ministry could not locate an exact comparator. Id.
`at 29. That sentiment echoes Nabors. As this Court said there, it was
`“unsurprising” that “no one ha[d] been prosecuted under the
`amendment” because it was enjoined soon after taking effect. 35 F.4th
`at 1035. Other courts also downplay this factor, concluding there is
`“little need” to show an enforcement history for “recently enacted” laws.
`Isaacson v. Mayes, 84 F.4th 1089, 1099 (9th Cir. 2023). On top of that,
`an enforcement history isn’t required. E.g., Babbitt, 442 U.S. at 302.
`Even so, Christian Healthcare has identified comparators. In
`Rouch World, Michigan is prosecuting two faith-based businesses for
`declining to provide services that violated their religious beliefs.
`Opening Br. 14–16. Michigan argued that the Free Exercise Clause did
`not protect the owne

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