Reading through the Country Mill complaint against East Lansing

If you haven’t heard (well, you probably didn’t find this article), Country Mill Farms of Charlotte, MI has filed a religious discrimination complaint against the City of East Lansing for excluding them from participation in the city farmers’ market. They are being represented by the Alliance Defending Freedom (ADF), among others, whose write up on the case is here. You could surely find many more articles by doing a news search for “Country Mill”, I will assume basic familiarity with the story in this post.

As an East Lansing resident who has been to that market many times (personal photo above!) and, if memory serves, to The Country Mill as well, and who is concerned about religious freedom protections in America generally, I took an enhanced interest in this case. The official complaint is available online — it is a very readable 42 pages. I am a big fan of going to the primary source documents rather than trusting media reports (or even Medium articles!) when you can, so feel free to ignore this article and just go read the complaint, that would be swell. If you aren’t inclined to do so however— well, I read it, and here are just some parts I found interesting. Mega-disclaimer and caution for the reader — I am not a lawyer, law professor, or other sort of expert in law! I am an interested Physics professor who happens to be able to read. That said, here we go.

  1. First of all, just to set the scene.
1. This case is about a Policy specifically created by the City of East Lansing to exclude a farmer whose family farm is twenty-two miles outside the City from participating in its city-run farmers market solely because the City dislikes the farmer’s profession of his religious beliefs about marriage on Facebook.
2. This targeted Policy violates the First and Fourteenth Amendments of the United States Constitution as well as state law that prohibits Michigan cities from regulating activities outside city boundaries.

2. They do stress in the introduction that Country Mill was well-liked at market.

106. For example, on August 2, 2016, East Lansing posted on its Farmer’s Market Facebook page: “We love The Country Mill! Their already-picked berries will be at the market on Sunday. But if you feel the pull to pick your own, go and check them out!”
107. Country Mill always followed all of the Vendor Guidelines while operating in the City and Country Mill never received even one customer complaint related to its participation in the Market.

Incidentally to make a personal comment — indeed, nobody just shopping at market would have had any idea Country Mill’s political or religious beliefs as regards anything, they were not on display in the operation. Which is no doubt why many find their exclusion especially offensive.

3. I have been surprised all along that ADF is making so much of the city’s response to a Facebook post… actually I think the city’s actions are inappropriate even if that post had never been made, but that’s for another article. But reading the official complaint, it does sound like the city’s response was indeed forceful and immediate.

120. So, on August 24, 2016, in response to those customer questions, Tennes posted on Facebook that “[d]ue to our personal religious beliefs” he would refer any request to celebrate a same-sex ceremony at Country Mill to another mid-Michigan orchard nearby
124. On Friday, less than two days after Tennes’ Facebook post, the Parks and
Recreation Director called Country Mill and asked Country Mill to agree not to attend the Market that coming Sunday, August 28, 2016.
125. In support of his request, the Director told Country Mill that because of Tennes’ statement of his religious beliefs, (1) the city did not want Country Mill at the August 28th Market, (2) that he had heard complaints about Tennes’ Facebook post, and (3) that if Country Mill decided to come to the Market that Sunday anyway, people who disagreed with Tennes would protest the Market.
126. The Director then proceeded to call and email Country Mill repeatedly over the next two days, each time urging Country Mill not to participate in the August 28th Market because of Tennes’ post regarding his religious beliefs.

Dwell on that for a moment — this is especially striking to me because the city is exerting this pressure when, remember, legally speaking Country Mill had done nothing wrong. The city policy that is now used to justify their exclusion from the market didn’t exist yet.

4. After that happened…

136. A couple of vendors mentioned the Director’s email to Country Mill and their comments were supportive of Country Mill’s right to express their religious viewpoint.

And it’s quite likely those vendors are still at market. Just a thought.

5. After this, discussion turns toward the city’s “Human Relations Ordinance” and the requirement that market vendors comply with it “and the City’s ‘public policy against discrimination . . . while at the [Market] and as a general business practice’”, not just when at market. See pages 15–19 for plenty about what the ordinance requires, it is too much to quote here. It seems to me that the enforcement question brought up is a good one.

153. It does not provide any criteria to explain or guide how the City will enforce the Policy to regulate the general business practices of its Market Vendors.

In the case of Country Mill, they made their position very public — but what if a vendor hadn’t, but there were complaints? Does the city dispatch investigators to some property 30 miles outside the city limits to try to figure out what is really going on? They wouldn’t get any assistance from the locals — Country Mill hadn’t and still hasn’t broken any state law, or law in Charlotte, MI, for example.

6. Little argument that the city is in violation of its own ordinance.

214. Notably, the East Lansing Farmer’s Market is a public service governed by the Human Relations Ordinance which defines public service as any “public facility . . . owned, operated, or managed by . . . a political subdivision” of the state. East Lansing, Michigan, Mun. Code § 22–35(a).
215. It is a violation of the Human Relations Ordinance to exclude a person from a public service on the basis of religion.
216. The City, therefore, violated the Human Relations Ordinance by excluding Country Mill from the Market based on Tennes’ statement of his religious beliefs.

7. As the document progresses, it becomes clear that ADF is not merely arguing that the city acted improperly in this instance, but that the Human Relations Ordinance… or at least the market policy that incorporates that ordinance, is itself unlawful. For example:

238. The Policy is also viewpoint-discriminatory on its face and as applied because it regulates speech based on the viewpoint expressed.
239. For example, the Policy prohibits speech that makes anyone feel “unwelcome,” “objectionable,” “unacceptable,” and “undesirable” based on one of the enumerated classifications but allows speech expressing the opposite viewpoint, speech that would make someone feel welcome, accepted, or desired based on one of the enumerated characteristics.

This might be especially notable given the comments from the Supreme Court of the United States on “hate speech” a couple days ago. If you missed that

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

I won’t quote this, but also worth noting that several times the complaint points out that other vendors, or the city itself, expressing support for same-sex marriage was of course held quite permissible.

8. Just found this interesting:

281. The unconstitutional conditions doctrine prohibits the government from
conditioning the receipt of a government benefit on the relinquishment of a constitutional right.
282. The government violates this unconstitutional conditions doctrine when it pressures a person to give up constitutional rights in order to obtain a public benefit.
283. The government also violates this doctrine when it denies a person a benefit because that person exercised his or her constitutional rights.
284. Defendant has violated the unconstitutional conditions doctrine by pressuring Plaintiffs to give up their constitutional rights to free speech and free exercise of religion by conditioning Plaintiffs’ receipt of the benefit of continuing to participate in the East Lansing Farmer’s Market on Plaintiffs’ willingness to relinquish their free speech, free press, and free exercise of religion by publishing Plaintiffs’ religious viewpoint on marriage.

9. There were also repeated complaints about poorly defined terms making actual enforcement of the policy very subjective. For example:

316. For example, the Policy contains the undefined, vague, and overbroad terms “general business practices,” “discriminate,” “unwelcome,” “objectionable,” “unacceptable,” and “undesirable” to describe what the Ordinance prohibits. City officials must determine — without any guidance — whether any of these prohibitions apply in a given case based on their own subjective determinations. Ex. 1, Vendor Guidelines p. 3; East Lansing, Michigan, Mun. Code §§ 22–31, 22–35

Or earlier,

250. The category “general business practice[s]” is constitutionally overbroad. 251. East Lansing interprets “general business practice[s]” to include business owners’ religious statements, beliefs, and practices.

On the whole I thought ADF made a pretty good case — yes, that is the whole point of the complaint. But they do say they win 80% of their cases, I’m sure they wouldn’t have taken this one on if they didn’t think odds of victory were good.