Note — This post (and many more) arrives thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.

Michigan gym owners will have longer to wait before they can reopen.

Last Wednesday, the Sixth Circuit granted Michigan Governor Gretchen Whitmer an emergency stay from a district court injunction authorizing Michigan gyms to resume business.

The decision comes as coronavirus cases appear to be on the rise in several states, with Texas recently announcing a pause in its reopening. Business owners, who have faced months of little to no revenue, have turned to the courts to challenge state orders prohibiting their activity.

In Michigan, gyms have been shut down since a March 16 executive order. While some facilities in the northern part of the state have been allowed to reopen, most gyms must remain closed until July 4 at the earliest. Plaintiffs—a collection of twenty-two Michigan gyms and an affiliated trade association—filed suit on May 22.

They found quick relief in the form of a preliminary injunction issued by Judge Paul Maloney of the Western District. On June 19, the district court held that Gov. Whitmer had not provided sufficient support for why some indoor businesses—like hair salons and bars—could reopen, while gyms could not. This ran afoul of the Fourteenth Amendment’s Equal Protection Clause, the court contended, since it treated similarly situated businesses differently without a rational basis. The governor “answered with a blanket ‘trust us’ statement that is insufficient,” Judge Maloney wrote, inviting Plaintiffs to open their doors on June 26.

The Sixth Circuit has now withdrawn that invitation. The appellate court held that Gov. Whitmer had adequately explained her distinction by citing a Center for Disease Control research paper, which pointed to risk of viral contamination being particularly elevated at gyms. Fitness facilities host “heavy breathing and sweating,” that paper expounded, “and, therefore, acute, propulsive bursts of virus.”

The Sixth Circuit held that the paper’s justification satisfied rationality review, even in the absence of more robust empirical evidence. For the court, the governor’s reasoning served up a “paradigmatic example of ‘rational speculation.’” Dance halls and rock-climbing facilities, the court noted, had remained closed under Gov. Whitmer’s order.

To overcome rational-basis review, the court pronounced, challengers must dismantle “every conceivable basis” for an executive order. Plaintiffs had not met this high bar, per the court, which concluded that Gov. Whitmer had made a strong showing that she could succeed on the merits. The remaining elements of the test for a stay pending appeal were easily satisfied, the court added.