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Michigan gyms might take closures to U.S. Supreme Court

Craig Mauger
The Detroit News

Lansing — The Michigan gyms that are fighting closures imposed by Gov. Gretchen Whitmer during the COVID-19 pandemic might try to take their case to the U.S. Supreme Court, one of their attorneys said Thursday.

People participate in an outdoors cross-fit class at High Caliber Strength and Fitness, in Troy, June 25, 2020.

Scott Erskine, who's been representing the gyms in federal court, said his clients are now considering their options after the 6th Circuit U.S. Court of Appeals granted Whitmer's request for an emergency stay that prevented gyms in much of Michigan from reopening Thursday.

Among the options Erskine's legal team is considering is whether to seek emergency consideration from the justices on whether the gyms should be opened as the legal fight continues.

"They can act fast," Erskine said Thursday. "It’s up to them to even decide whether to take it."

The Supreme Court in Washington.

The gyms, about 180 are involved either directly or through an organization that's a plaintiff, have argued that Whitmer's emergency orders to combat COVID-19 have unfairly kept them closed while allowing other businesses, including strip clubs, hookah lounges, massage parlors and hair salons, to reopen.

At least one gym wasn't waiting for a decision from the High Court.

On its Facebook page Thursday, Crunch Fitness in Farmington Hills, calling exercise "one of the pillars of healthy living" and adding that "we truly believe that gym time is a healing machine,"  announced it had reopened.

"After taking all things into consideration we truly feel it’s in the best interest of our members to move forward with our re-opening!" the Fpost said.

"Rest assured, we have trained extensively and gone to great lengths to make our gym environment SAFE and it continues to be our mission to contribute to the health and well being of all our members."

The Whitmer administration has contended the governor is trying to protect public health and the gyms bring a heightened risk of spreading the virus that's still threatening the state.

Samuel Bagenstos, a law professor at the University of Michigan who's argued four cases before the U.S. Supreme Court, predicted the gyms wouldn't be successful in trying to get the high court to intervene in their fight against the current stay.

Travis Heidt, head coach and owner of High Caliber Strength and Fitness, in Troy, leads an outdoors cross-fit class, June 25, 2020.

Such a move from the U.S. Supreme Court would be "extraordinary," said Bagenstos, who ran for the Michigan Supreme Court as a Democratic nominee in 2018. The only times the U.S. Supreme Court has shown an interest in getting involved with similar COVID-19 related matters is when they involve religious exercise, he added.

"It's not religious exercise," Bagenstos said. "It’s just exercise.”

U.S. District Judge Paul Maloney agreed with the gyms last week, issuing an injunction that would have allowed them to reopen early Thursday.

About three hours before the reopening, a three-judge U.S. Court of Appeals panel — all three judges were appointed by Republican presidents — granted an emergency stay requested by the Whitmer administration that pauses the reopening as the dispute over the policy continues in court.

Erskine said his legal team is considering continuing to fight the matter in the 6th Circuit or seeking emergency consideration from the U.S. Supreme Court.

His clients are facing economic pressures after being closed for about about 14 weeks and are "running out of time," he said.

In May, the U.S. Supreme Court rejected a challenge to coronavirus-spurred limits on church services in California. In an opinion written by Chief Justice John Roberts, Roberts said the Constitution entrusts "the safety and the health of the people" to "the politically accountable officials of the states to 'guard and protect.'"

The three-judge appeals panel focused on a similar idea in its opinion Wednesday.

But Erskine said his case has a fundamental difference from the California case. The churches were arguing they should not be subject to the same capacity limits as businesses while in the Michigan case, gyms are questioning why they have to remain shuttered while other businesses are allowed to reopen.

The U.S. Supreme Court may take the case to provide further guidance from the nation's highest court, he said.

Whitmer's spokeswoman, Tiffany Brown, touted the Court of Appeals decision in a statement Wednesday night.

"In the fight against a global pandemic, courts must give governors broad latitude to make quick, difficult decisions," Brown said. "The governor will continue to take the actions necessary to save lives."

Owner Ken Welch has been anticipating officially reopening Pointe Fitness and Training Center in Harper Woods for several weeks. Closed during the coronavirus state shutdown, many gyms are ready to open and some have opened.

Meanwhile, independent gym owners are reeling from the latest decision.

“At least give us an opportunity to try and leave it up to the members to start to come back, wear masks and do lower-intensity and circuit core-work and moderate what we do,” said Travis Heidt, owner of High Caliber Strength and Fitness in Troy.

Heidt said that despite keeping his members engaged by offering CrossFit classes outdoors, he’s lost about 40% of his business since the shutdown in March.

“I have outstanding rent every month,” he said. “Every week I’m losing more and more people and I can’t expect people to stay when we’re supposed to be shut down. I guess that’s the most frustrating thing. It’s been almost four months now and I’ve got a baby girl, a lot of bills to pay at this place, took a lot of risks and I feel I’m losing it for something that I can’t control.”

Ken Welch, owner of Pointe Fitness in Harper Woods, said having his gym closed affects individuals who need physical therapy.

“I feel like I’m in the middle on this one,” he said. “Because on one hand, I have people who need to have physical therapy. They need to be in my gym. But also, we’re not going to break the law.”

Brenda Kerscher of Madison Heights lifts weights during an outdoors cross-fit class at High Caliber Strength and Fitness, in Troy, June 25, 2020.

Welch said Detroit Medical Center uses his gym for physical therapy sessions. 

The gym owner has expressed at earlier times that the disconnect between legislatures and local gym owners could cause problems throughout the stages of reopening. A general misunderstanding of how gyms operate may have led to unrealistic legislation.

Welch said that gyms are likely seen as more “unsafe” than other areas, due to the nature of gyms being close quarters and the sharing of equipment.

But Welch says gyms are just as safe as anywhere else.

“Logically, if they shut down everything for these reasons, it would make more sense,” Welch said. “But I was driving through the city the other day, and I saw people eating outside at a restaurant. They’re not social distancing at all. But they’re not shut down. And then I go to Village Market and people are all touching the same shopping carts. Those aren’t being cleaned by the customers.”

At Pointe Fitness, members are sure to clean each piece of equipment after each use, Welch said. He said that’s more than can be said for grocery stores or restaurants.

Travis Heidt, head coach and owner of High Caliber Strength and Fitness in Troy, guides Apoo Rambhatla, of Rochester Hills, during an outdoors cross-fit class, June 25, 2020.

“It just feels like we’re being jerked around,” Welch said. “Twenty-four hours ago, they said gyms could be open. Now, they’re closed again.”

At Crunch Fitness, guidelines set out how the gym will keep clients safe. Guests are told to wear a masks while entering and exiting the building and consider wearing one while working out, and are required to wipe down equipment after use. Group fitness classes would remain outdoors, it said.

Staff Writers Candice Williams and Sam Jones contributed. 

cmauger@detroitnews.com