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Federal Court Finds City of East Lansing Violated Free Exercise Right of Farmer Excluded from City’s Farmer Market Because His Wedding Rental Business Excludes Same-Sex Couples

Posted on: August 23rd, 2023 by Art Leonard No Comments

U.S. District Judge Paul L. Maloney granted summary judgment after a bench trial to Country Mill Farms (CMF) and its owner, Stephen Tennes, in their First Amendment Free Exercise lawsuit against the City of East Lansing, Michigan, which excluded CMF from the East Lansing Farmers Market (ELFM) because the company’s wedding hosting business was closed to same-sex couples.  Country Mill Farms, LLC v. City of East Lansing, 2023 WL 5345236, 2023 U.S. Dist. LEXIS 146493 (W.D. Mich., Aug. 21, 2023).

The court premised its ruling on the Supreme Court’s decision in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), which held that an anti-discrimination policy that was part of a discretionary process (i.e., to which there were discretionary exceptions) was not a law of “general applicability” and thus was subject to strict scrutiny when a person was excluded from a government benefit because of their religious beliefs.  That is, the government would have to show a compelling interest not to exercise its discretion to excuse compliance with the challenged policy.  In Fulton, the Supreme Court found that the city of Philadelphia failed to show a compelling interest that justified not making an exception to its anti-discrimination policy for Catholic Social Services, which would not open its foster care vetting service, operated by contract with the city, to same-sex couples.  In this case, the benefit is being able to participate in the Farmers Market program operated by the City of East Lansing, Michigan.   The city has an ordinance prohibiting discrimination because of sexual orientation by places of public accommodation.  Country Mill Farms LLC makes its facilities available for wedding celebrations, but its proprietor, Stephen Tennes, will not rent the premises for same-sex weddings due to his religiously based objections to same-sex marriage.

According to the facts found by Judge Maloney, Mr. Tennes operates his corporation as a family farm, selling fruits and vegetables.  He is the sole owner and manager of the company.  He adopted as a mission statement for his business to “glorify God by facilitating family fun on the farm and feeding families.”  The court found that Tennes “stopped running haunted houses, something his father started, because the practice was not in line with his faith.  He has declined to host bachelor and bachelorette parties for the same reason.”  The wedding business is a significant part of the farm’s activities, the court noting that CMF has hosted as many as forty-four weddings in a year.  “Tennes considers the celebration of weddings at CMF as ‘a calling from God for us to serve.’  His religious belief is that marriage is between a man and a woman.  “Because of this sincerely held religious belief,” wrote Judge Maloney, “Tennes will not rent the venue for same-sex weddings.”

For “a number of years, through 2016,” CMF was invited to participate in East Lansing’s Farmers Market, which is run by the city government and has limited space for vendors.  Most of the spots are filled by invitation, and vendors are supposed to comply with published Guidelines.  A planning committee decides which vendors to invite “based on the guidelines and past experience with the vendor.”  CMF received an inquiry on its social media website in August 2016 concerning its position on LGBT groups and responded that due to its sincerely held religious beliefs, “we do not participate in the celebration of a same-sex union.  We have and will continue to respectfully direct wedding inquiries to another mid-Michigan orchard that has more experience hosting same sex weddings.”  This statement came to the city’s attention.  “In late August, the city reached out to CMF and, because of the social media message concerning same-sex weddings, asked it not to attend the ELFM the following weekend.”  CMF responded to this by announcing it would no longer book future wedding ceremonies, upon which it was allowed to attend that weekend and for the rest of the 2016 season.

However, evidently missing the wedding business and its revenue, CMF decided to resume booking weddings, but not same-sex weddings, which it announced in December 2016.  The city responded to this announcement by adding a new subsection to the published Guidelines for ELFM, stating that vendors should comply with the civil rights ordinance and the public policy against discrimination, and the planning committee did not invite CMF to participate in the 2017 ELFM.  CMF then filed an application to participate, which the city denied, explaining in a latter to CMF that its “business practices” did not comply with the city’s public policies, and that its December social media announcement was a violation of the ordinance and the ELFM guidelines.  Thus provoked, CMF and Tennes filed suit against the city.

The court found that the city’s decision to deny CMF’s application “substantially burdened Plaintiffs’ free exercise of religion,” and this decision was “motivated by religious beliefs.  Plaintiffs were forced to choose between their religious beliefs and a government benefit for which CMF was eligible.”

The court found that the 2017 Vendor Guidelines for the ELFM “allow for the exercise of discretion in at least two ways, discretion that undermines the general applicability of the Guidelines.  First, the Guidelines allow for discretion in selecting vendors for invitation and for approving annual vendor applications.”  The guidelines list 11 factors to be considered by the planning committee in deciding whom to invite and which applications to approve, only one of which is complying with the city’s civil rights ordinances.  The ELFM market manager testified at trial that the committee examines these factors “on a case-by-case basis to determine whether to invite or not invite a vendor,” and could decide not to invite based on any of the listed factors.  The City Manager testified that the Guidelines “did not include any indication about how to weigh the different factors,” including the factor of compliance with the civil rights laws.  Judge Maloney concluded that “this functionally unfettered discretion means that the Vendor Guidelines are not generally applicable and function as a mechanism for individualized decisions.”  The Guidelines also expressly state that the Market Manager may “grant exceptions and accommodations on an individual basis.”  The court saw this as a “mechanism for individualized exemptions not functionally different from the policy in Fulton.  And, the mere existence of the mechanism, not its exercise, ‘renders a policy not generally applicable.’”

Judge Maloney wrote that the provision on compliance with the civil rights law “is not generally applicable because it permits secular conduct through exemptions while prohibiting the same conduct motivated by religious beliefs.”  For example, the city’s civil rights law “does not apply to private clubs or other establishments not open to the public” and “contains provisions that allow for discretionary exemptions,” such as “discretion to grant employment exemption for bona fide occupational qualifications” and reserving to the city a decision whether discrimination by a city contractor is a “material breach” of a city contract.  The judge runs through all the provisions of the city’s civil rights ordinance that appear to provide discretion to treat various breaches as not material (and thus not disqualifying).

Furthermore, applying the strict scrutiny test, the court found that the city had “not established that the decision to deny CMF a vendor license is narrowly tailored to meet a compelling governmental interest.”  The court observed that due to the discretionary exceptions that could be made under the laws, the city could to business with an entity that discriminates on the basis of sexual orientation, and had “not offered any particular justification for enforcing the nondiscrimination ordinance against Plaintiffs.  Nor has Defendant explained why it declines to offer Plaintiffs an exemption from the nondiscrimination ordinance when the ordinance provides objective and discretionary exemptions to other business entities.”

The court also rejected the city’s argument that the plaintiffs “were not engaged in conduct associated with the practice of their religion,” pointing out the Supreme Court’s broad interpretation of the scope of free exercise.  Having found that the city’s exclusion of CMF from the farmers’ market imposed a substantive burden on free exercise which had not been justified by a compelling reason, the court granted judgment to the Plaintiffs on their free exercise claim.  This Order does not discuss what remedy the court might impose to enforce its judgment, but the clear signal of the opinion is that CMF’s future participation in the farmers’ market cannot be conditioned on its agreement to host same-sex weddings.

CMF is represented by attorneys associated with Alliance Defending Freedom.  (No surprise there!)  The Michigan Catholic Conference filed an amicus brief in support of CMF.  Judge Maloney was appointed by President George W. Bush.

Michigan may be the next state to defend its ban on same-sex marriage in a federal court trial.

Posted on: July 2nd, 2013 by Art Leonard No Comments

Senior U.S. District Judge Bernard A. Friedman, appointed to the court by President Ronald Reagan in 1988, ruled on July 1 that a Michigan lesbian couple is entitled to a trial of their claim that the state adoption law, forbidding same-sex couples to jointly adopt children, and the Michigan Marriage Amendment (MMA), forbidding same-sex marriages, violate their rights under the 14th Amendment.  Rejecting the state’s motion to dismiss the case, Judge Friedman cited the Supreme Court’s June 26 decision striking down Section 3 of the Defense of Marriage Act, U.S. v. Windsor, to support the “plausibility” of the couple’s constitutional claim.

April DeBoer and Jayne Rowse, the plaintiffs, are both employed as nurses and have lived together for six years.  Between them, they have adopted three children as single parents.  They would like to jointly adopt the three children to solidify their family relationship, but Michigan’s adoption law forbids it because they are not married, and the Michigan Marriage Amendment denies them the right to marry.

They filed suit in federal court, claiming that the state’s prohibition on joint adoptions by same-sex couples violates their equal protection rights.  In pre-trial arguments, Judge Friedman suggested that their challenge would not be complete if it was confined to the adoption law, and they amended their complaint at his suggestion to add a claim that the state’s ban on same-sex marriage violates their rights as well. 

The state moved to dismiss, arguing that the plaintiffs cannot show that the Michigan Marriage Amendment lacks a rational relationship to a legitimate state interest, and that there is no fundamental right under the constitution for same-sex couples to marry.

Friedman denied the motion, holding that the claims cannot be decided as a matter of law at this point, largely because of the Supreme Court’s DOMA decision.

On the one hand, he observed, there is language in that decision that defendants will cite, about the state’s “historic and essential authority to define the marital relation” (quoting from Justice Kennedy’s opinion).  “They will couch the popular referendum that resulted in the passage of the MMA as ‘a proper exercise of [the state’s] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended,” he wrote, again quoting from Kennedy’s opinion.

On the other hand, of course, he asserted that “plaintiffs are prepared to claim Windsor as their own; their briefs sure to be replete with references to the newly enthroned triumvirate of Romer v. Evans, Lawrence v. Texas, and now Windsor.  And why shouldn’t they?  The Supreme Court has just invalidated a federal statute on equal protection grounds because it ‘place[d] same-sex couples in an unstable position of being in a second-tier marriage.’  Moreover, and of particular importance to this case, the justices expressed concern that the natural consequence of such discriminatory legislation would not only lead to the relegation of same-sex relationships to a form of second-tier status, but impair the rights of ‘tens of thousands of children now being raised by same-sex couples’ as well.  This is exactly the type of harm plaintiffs seek to remedy in this case.”

The court’s role in deciding a motion to dismiss is to decide whether the plaintiffs have asserted a plausible legal claim, assuming their factual allegations to be true.  “Construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court’s current statement of the law, this Court cannot say that plaintiffs’ claims for relief are without plausibility,” Friedman concluded as to the equal protection claim.  He commented that the plaintiffs’ due process claim “will likewise move forward because it states a plausible claim for relief,” citing Judge Vaughn Walker’s original Proposition 8 decision, which now stands as an unappealed district court opinion.

Friedman ordered that counsel meet with him on July 10 to set a trial date.  From the tone of his opinion, he is eager to decide this case on the merits, and seems well disposed towards the plaintiffs’ claims.

First Fruits of the DOMA/Prop 8 Decisions – Quick Response from the Obama Administration, Resumption of Marriages in California, and a Decision Striking a Michigan Law Against Partner Benefits

Posted on: June 30th, 2013 by Art Leonard No Comments

Response by the “defendants” in the DOMA and Prop 8 cases to the Supreme Court’s June 26 rulings was swift.

Within hours after the Court announced that Section 3 of DOMA was unconstitutional, the President had announced his “applause” for the decision and instruction to the Attorney General to coordinate with executive branch department heads to seek “smooth” implementation for federal recognition of lawfully-contracted same-sex marriages.  Some of the quickest responses came rolling in right away: Defense Secretary Hagel said steps would immediately be taken to extend spousal benefits to for same-sex spouses of military personnel, and Homeland Security Secretary Napolitano said that Customs & Immigration would immediately accord equal recognition to same-sex marriages.  The first green card was issued for a same-sex spouse just two days later, on Friday, for a Florida couple that included a Bulgarian citizen, and even more quickly, an immigration judge in New York halted a deportation hearing on Wednesday morning after being handed a copy of the DOMA decision fresh off the presses.  President Obama called Edie Windsor to congratulate her on the victory, but he did not, as far as we know, say “The check is in the mail,” which would have been a nice touch.  The IRS bureaucracy does not grind that quickly.  Indeed, the IRS may end up being one of the main sticking points for implementation, having emitted a non-committal statement that it would be providing guidance for taxpayers, employers and corporations, but not indicating when that would be forthcoming.  Office of Personnel Management sent out a notice to executive branch heads that same-sex spouses should immediately be recognized, and that an open enrollment period would commence for federal employees to enroll their same-sex spouses in benefits programs.   Nobody in the executive branch seemed inclined to wait until the Court issues its official mandate later in July before taking action, but that’s not surprising, given the government’s posture on the merits of the case!

Also within hours of the Prop 8 decision being announced, Governor Jerry Brown of California issued a statement attaching an opinion letter he had solicited weeks ago from Attorney General Kamala Harris about the scope of Judge Vaughn Walker’s Order.  Harris advised that when the stay was lifted by the 9th Circuit, same-sex marriage should be immediately available in every county.  In other words, she was rejecting the contention by the initiative proponents that the Order was limited to the plaintiff couples or the two counties where clerks were named defendants in the case. Brown followed her advice and had the Department of Public Health send a notice to all County Clerks and Recorders that upon lifting of the stay, same-sex couples should be treated the same as different-sex couples.  Harris contacted the 9th Circuit and urged that the stay be lifted right away.  The 9th Circuit panel that had issued the now-vacated decision expeditously responded on Friday, June 28, lifting the stay, opening the way for the plaintiff couples to get married that afternoon.   The San Francisco County Clerk’s office decided to stay open over the weekend to accommodate the demand for marriage licenses and ceremonies during Gay Pride Week, which was expected to draw 1.5 million to San Francisco for the annual festivities.

The Proponents tried to throw a wrench into the works, filing an “emergency motion” with the Supreme Court to halt the marriages, contending that the 9th Circuit could not lift the stay until the Supreme Court’s formal mandate arrived later in July.  Justice Kennedy, to whom the motion was referred, quickly denied it without comment.  Proponents are still expected to try other legal strategems in the days ahead.

Meanwhile, the first court to cite and rely on the Windsor case issued its ruling on Friday, June 28.  District Judge David M. Lawson, relying in part on the reasoning of Windsor as well as the Arizona domestic partnership benefits case, ruling in Bassett v. Snyder, 2013 WL 3285111 (E.D.Mich.), that plaintiffs were entitled to a preliminary injunction against the operation of a Michigan law that had been adopted to block public employers from providing domestic partnership benefits to their employees.  Under Public Law 297, employee benefits may be extended only to legal spouses, legal dependents, or legal heirs (those who could inherit from an employee under the intestacy laws) who are living with the employee.  The legislative history shows that this was passed specifically to override local governments that had extended benefits to non-marital partners.  Michigan’s Supreme Court had construed the state’s marriage amendment to forbid extending benefits to same-sex domestic partners as such, but many localities and government institutions had contrived a work-around to extend benefits to cohabitants who met certain minimal requirements, regardless of sex, and the law was intended to end this loophole as a means of enforcing the the marriage amendment.  The court found this to be a transparently discriminatory measure aimed mainly at same-sex couples — agreeing with the Arizona district court and the 9th Circuit (but failing to note the new development that the Supreme Court denied Arizona Gov. Jan Brewer’s cert petition on June 27) — and finding, in light of the reasoning of Windsor, that this would be an equal protection violation. 

Things are happening so fast, it’s difficult to keep up.  Lambda Legal announced it was filing a summary judgment motion in its pending N.J. Superior Court lawsuit seeking a ruling that the civil union act fails to provide equal rights for civil union partners, and the DOMA decision gives added weight to that contention.  A state legislator who represents the plaintiffs in a New Mexico marriage equality lawsuit announced he would petition the state supreme court to take up the case directly, in light of Windor, and of course the 9th Circuit will soon hear arguments in the Hawaii and Nevada cases.  (The Supreme Court denied a petition by the defenders of the Nevada marriage amendment, who were trying to leapfrog the 9th Circuit, also on June 27.)  Racing to keep up….