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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.

Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

Washington Supreme Court Unanimously Rules Against Florist Who Refused Flowers for Same-Sex Wedding Ceremony

Posted on: February 17th, 2017 by Art Leonard No Comments

 

Continuing an unbroken string of appellate rulings finding that small businesses cannot refuse to supply goods or services for same-sex marriages in jurisdictions that ban sexual orientation discrimination, the nine members of the Supreme Court of the State of Washington unanimously ruled on February 16 that Barronelle Stutzman, proprietor of Arlene’s Flowers, Inc., and her business, violated the Washington Law Against Discrimination (WLAD) and the state’s Consumer Protection Act, and had no constitutional right to do so based on her religious beliefs. State of Washington v. Arlene’s Flowers, 2017 Wash. LEXIS 216, 2017 WL 629181.

This ruling follows a string of losses by businesses that sought to rely on religious objections to refuse wedding-related services to same-sex couples, involving a photographer in New Mexico (Elane Photography v. Willock, 309 P.3d 53 (N.M. 2013)), a baker in Colorado (Mullins v. Masterpiece Cakeshop, 370 P.3d 272 (Col. App. 2015)), and a farm that provided a venue for weddings in upstate New York (Gifford v. McCarthy, 23 N.Y.S.3d 422 (N.Y. App. Div. 2016)).  So far, no final court decision has ruled in favor of a for-profit business claiming a right to discriminate against same-sex couples in connection with their weddings, either under the federal and/or state constitutions or under a state’s Religious Freedom statute.  Washington State does not have such a statute, so Ms. Stutzman’s case came down to two questions: whether her refusal of services violated the public accommodations and consumer protection statutes, and whether she was privileged to withhold her services by the 1st Amendment of the U.S. Constitution or an equivalent provision of the Washington Constitution.

Robert Ingersoll and Curt Freed had been living together in what the opinion by Justice Sheryl Gordon McCloud calls “a committed, romantic relationship” for several years. Over those years they had been regular customers of Arlene’s Flowers, spending by their estimate as much as $1,000 total at the store.  After the Washington legislature passed a bill allowing same-sex marriages in 2012, Freed proposed to Ingersoll and they planned to marry on their ninth anniversary in September 2013 with a large reception at a major event venue, “complete with a dinner or reception, a photographer, a caterer, a wedding cake, and flowers.”  Naturally, Ingersoll went to Arlene’s Flowers to make arrangements, anticipating no problems because the owner, Ms. Stutzman, knew him and Curt, knew they were gay, and had dealt with them many times.  They considered Arlene’s Flowers to be “their florist.”

So it was a big surprise when Stutzman told Ingersoll that she could not do the flowers for their wedding because of “her relationship to Jesus Christ.” Indeed, the conversation did not even get as far as discussing what kind of flowers or floral arrangements the men wanted, or whether Stutzman was being asked to deliver and set up floral arrangements at an event venue or just to prepare them to be picked up at her store.

The story quickly got media play after Ingersoll posted about it on his facebook.com page, inspiring the state’s Attorney General Bob Ferguson to initiate litigation against Stutzman and her business, and Ingersoll and Freed filed their own complaint. The cases were combined in Benton County Superior Court, where the trial judge granted summary judgment against Stutzman.

The analysis by the court will be familiar to anybody who has been following this issue as it has unfolded in parallel with the advance of marriage equality. Courts have generally rejected the argument made by Stutzman that refusing to do business with same-sex couples in connection with their marriages is not sexual orientation discrimination because the refusal has to do with “conduct” (a wedding) rather than “status” (sexual orientation).  The Washington court decisively rejected this argument, advanced by lawyers from Alliance Defending Freedom, the organization that has been involved in the other cases mentioned above and which is petitioning the Supreme Court to review the Colorado baker case.  So the major focus of the case is not on whether she violated the statutes, that being easily decided, but rather on whether she was privileged to do so because of constitutional protection for her freedom of religion, speech or association.

Most civil rights laws include provisions exempting religious institutions and their clergy from complying to the extent that their doctrines would be violated, but the exemptions usually do not extend to private, for-profit businesses. The Supreme Court of the United States ruled in the Hobby Lobby case, consistent with prior decisions going back to the 1990s, that the 1st Amendment does not require the government to exempt businesses from complying with statutes of general application, such as civil rights laws or, in that case, the Affordable Care Act.  However, under the federal Religious Freedom Restoration Act (RFRA), a statute enacted in response to the Supreme Court’s religious freedom ruling, the Supreme Court found that a for-profit business may be entitled to claim an exemption from complying with a federal statute or regulation because of the religious views of the owners of the business.  The test in such a case would be whether the challenged statute imposes a substantial burden on the free exercise rights of the business, and then whether the government has both a compelling interest for the statute and has adopted the least intrusive means of achieving that interest.

Washington State does not have a RFRA, so Stutzman was limited to making constitutional claims. The court rejected her argument that her floral arrangements were the kind of artistic creations entitled to free speech protection, or that requiring her to design and supply floral arrangements for a wedding ceremony of which she disapproved would burden her freedom of association.  The court conceded that requiring her to devise floral decorations for such an event would burden her free exercise of religion, but found that the state’s compelling interest in protecting all its residents from discrimination in places of public accommodation clearly outweighed the incidental burden on religion.

“As applied in this case,” wrote Justice Gordon McCloud, “the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious exercise under either the First Amendment or article I, section 11 [of the Washington constitution], because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.”

When the court refers to a “neutral law,” it means a law that does not expressly target religion and was not enacted for the specific purpose of imposing a burden on religion. A law that, in general, forbids all public accommodations from discrimination because of sexual orientation or gender identity, is such a “neutral law.”  Of course, one notes, religiously-inspired advocates such as Alliance Defending Freedom would argue that it is not neutral, and that legislators adopt those laws knowing that they will burden religious believers, because testimony to that effect is usually presented in legislative hearings and the argument is made during legislative debate.  But the courts generally will not attribute a discriminatory intent to the legislature as a whole on the basis of such testimony and arguments.

Stutzman had argued that her refusal to “do” the flowers for the wedding was not a serious problem for the two men because she suppled Ingersoll with the names of other florists who would readily do it, and in fact after this case got publicity several florists contacted Ingersoll and Freed and volunteered to provide flowers for their wedding. In the event, the men were so affected by what had happened to them that they dropped their plans for a big wedding ceremony and instead had a small private event with minimal fuss. The court said that being able to get flowers was not really the issue in this case.  Rather, it was about the violation of civil rights stemming from a denial of services because the customers were a gay couple.  Indeed, in her deposition Stutzman conceded that she would happily supply flowers for a Muslim wedding or a wedding for atheists, making clear that her objections here focused on the fact that it was for a “gay wedding.”  It was not relevant that she claimed she was not homophobic and happily sold flowers to Ingersoll and Freed when it was not for a wedding.  That was not the point of the case.

The timing of this decision is particularly interesting, because the Supreme Court was scheduled to discuss whether to grant review of the Colorado baker case on February 17, having listed it at two of the Court’s prior conferences and having sent for and received the full record from the state courts just recently. If the Court made a decision to review that case at the February 17 conference, it would probably be announced on Tuesday, February 21.

The ACLU of Washington has been involved in representing Ingersoll and Freed in this case. A spokesperson for Alliance Defending Freedom, representing Stutzman, announced that they would petition the Supreme Court to review this case as well as the Colorado baker case.