Michigan's Public Act 53, enacted in 2012, prohibits public-school employers from providing payroll deductions to collect union membership dues from public-school employees. Plaintiffs, a number of unions and union members, challenged the Act facially, alleging that it violates their federal constitutional rights. In Bailey v. Callaghan, the Sixth Circuit, in a published 2-1 opinion, held that plaintiffs have no chance of success on their claims under the First Amendment and Equal Protection Clause, and reversed the district court's preliminary injunction barring enforcement of Public Act 53. The majority determined that plaintiffs' First Amendment claim fails because the Act does not restrict speech and does not discriminate based upon viewpoint. Applying a rational-basis review, the majority concluded that plaintiffs' equal-protection claim also fails because it determined that there is a conceivable legitimate governmental interest in support of the classification barring public-school employers, but not other public employers, from using their resources to collect union dues.
The dissent concluded that plaintiffs' First Amendment claim is likely to succeed because though Public Act 53 is viewpoint-neutral on its face, it is viewpoint-discriminatory in fact. Examining the neutral justifications for Act 53 offered by the State of Michigan - saving money, promoting union accountability, and providing a "check on union power" - the dissent determined that Act 53 is impermissibly motivated by Michigan's desire to suppress the school unions' viewpoint.