City Farmer’s Market Vendor Religious Freedom Claim

April 6, 2018, Department, by James C. Kozlowski, J.D., Ph.D.

2018 April Law Review City Farmers Market Vendor Religious Freedom Claim 410

In late spring 2018, the Supreme Court of the United States is expected to issue its opinion in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In this case, a baker refused to create a wedding cake for a same-sex couple because it would violate his religious beliefs. The state civil rights commission had found that the baker’s refusal violated a state statute, which prohibited discrimination by a public accommodation based on sexual orientation.

In August 2015, the Colorado state appeals court had affirmed the civil rights commission’s order. In so doing, the state appeals court similarly found the bakery had violated state law by discriminating against individuals because of their sexual orientation. Moreover, the state appeals court held the state antidiscrimination law did not infringe on the bakery’s freedom of speech or free exercise of religion. In Mullins v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 2015 Colo.App. LEXIS 1217, the Colorado Supreme Court denied review. On June 26, 2017, the Supreme Court of the United States granted certiorari to review this decision.

In the case described herein, Country Mill Farms, LLC v. City of East Lansing, 2017 U.S. Dist. LEXIS 191658 (11/16/2017), the federal district court considered a similar controversy involving an apparent conflict between the personal religious beliefs of a local family business and a municipal antidiscrimination ordinance.

City Nondiscrimination Ordinance
In 1972, the defendant, City of East Lansing, had adopted a nondiscrimination ordinance, which included a prohibition against harassment based on sexual orientation. Such harassment included conduct or communication that had the purpose to demean an individual and substantially interfere with an individual’s access to public accommodations. Places of public accommodation included a business whose facilities or accommodations are offered, sold or otherwise made available to the public.

Under the ordinance, a business could not deny full and equal enjoyment of services and facilities in a place of public accommodation because of sexual orientation. Further, the ordinance prohibited any posting or publication indicating public services or accommodations would be refused, denied or withheld because of one’s sexual orientation. This prohibition included any published statement that “an individual’s patronage of, or presence at a place of public accommodation, is objectionable, unwelcome, unacceptable or undesirable” because of their sexual orientation.

Convictions for violations of the ordinance could result in a fine of not more than $500 and imprisonment for not more than 90 days or both.

Facts of the Case
Plaintiff Stephen Tennes promotes his family business, Country Mill Farms, as a place to host weddings. Country Mill Farms is in Charlotte, Michigan, about 22 miles from East Lansing. In conformity with his religious beliefs, Tennes will not host weddings on his farm between same-sex couples.

In 2014, Tennes had been contacted by two women who were seeking to have their wedding ceremony at a Country Mill orchard. Because “promoting and participating” in a same-sex wedding at Country Mill would violate Tennes’ religious beliefs, he referred the women to another orchard in the area.

On August 22, 2016, one of the women posted a message on Facebook, discouraging people from patronizing Country Mill because Tennes had declined to host her wedding. In the ensuing discussion, questions were posed about Tennes’ religious beliefs.

On Wednesday, August 24, 2016, Tennes posted a statement about his religious beliefs on Facebook. Based on his Catholic faith, Tennes believes that marriage is a sacramental union between one man and one woman. Further, Tennes “honors his religious belief when hosting and participating in weddings at Country Mill.” He explained that, because of his religious beliefs, he would refer any request to celebrate same-sex wedding ceremonies at Country Mill to another orchard in the area.

On Friday, August 26, the parks and recreation director for the city called Country Mill and asked Tennes to agree not to attend the East Lansing Farmer’s Market (ELFM) on Sunday, August 28. Country Mill, however, attended the Farmer’s Market on Sunday, August 28, and for the rest of the 2016 season. Tennes alleged the city did not stop asking him and his family business to leave the Farmer’s Market. Because of the pressure of the city, Tennes decided to temporarily stop booking future weddings at Country Mill. Tennes posted his decision on Facebook and informed the city.

Second Facebook Post
On December 12, 2016, Tennes posted another message on Country Mill’s Facebook page, announcing that Country Mill would again host wedding ceremonies, but only ceremonies involving one man and one woman:

This past fall, our family farm stopped booking future wedding ceremonies at our orchard until we could devote the appropriate time to review our policies and how we respectfully communicate and express our beliefs. The Country Mill engages in expressing its purpose and beliefs through the operation of its business and it intentionally communicates messages that promote its owners’ beliefs and declines to communicate messages that violate those beliefs.

The Country Mill family and its staff have and will continue to participate in hosting the ceremonies held at our orchard. It remains our deeply held religious belief that marriage is the union of one man and one woman and Country Mill has the First Amendment Right to express and act upon its beliefs.

For this reason, Country Mill reserves the right to deny a request for services that would require it to communicate, engage in, or host expression that violates the owners’ sincerely held religious beliefs and conscience. Furthermore, it remains our religious belief that all people should be treated with respect and dignity, regardless of their beliefs and background. We appreciate the tolerance offered to us specifically regarding our participation in hosting wedding ceremonies at our family farm.

Vendor Guidelines Amended
In December, after the end of the 2016 season, the city amended the 2017 Vendor Guidelines for its Farmer’s Market. A provision was added to Section 6 of the Vendor Guidelines. In pertinent part, the new provision stated the following:

6. VENDORS WILL EMBODY THE SPIRIT OF THE MARKET BY: Multiple factors that affect the success of every vendor are considered.
m. Complying with the City of East Lansing’s Civil Rights ordinances and the public policy against discrimination contained in Chapter 22 of the East Lansing City Code while at the ELFM [East Lansing Farmer’s Market] and as a general business practice.

Further, the Vendor License Agreement required the applicant to check a box indicating that he or she has read and agrees to all the 2017 Vendor Guidelines.

Vendor Application Denied
In January 2017, the Market Planning Committee for the Farmer’s Market met to identify and invite vendors for the 2017 season. From 2011 through 2016, the Planning Committee had invited Country Mill to participate in the Farmer’s Market, eliminating the need for County Mill to apply. The city, however, barred the Planning Committee from inviting Country Mill to the Farmer’s Market for 2017. The city further instructed the Planning Committee that, should Country Mill submit a vendor application, the application had to be sent to the city for review. The Planning Committee did not invite Country Mill to be a vendor.

Country Mill submitted a 2017 vendor application, which was reviewed by the city. On March 7, 2017, the city sent Tennes a letter denying Country Mill’s vendor application:

It was brought to our attention that The Country Mill’s general business practices do not comply with East Lansing’s Civil Rights ordinances and public policy against discrimination as set forth in Chapter 22 of the City Code and outlined in the 2017 Market Vendor Guidelines, as such, The Country Mill’s presence as a vendor is prohibited by the City’s Farmer’s Market Vendor Guidelines.

Tennes emailed the city official who signed the letter, asking for clarification about the business practices that were objectionable. The city sent a second letter, this time referencing Tennes’ December Facebook post:

It was brought to our attention this winter that your Facebook post dated December 12, 2016, outlines a business practice that would be considered a violation of the City of East Lansing Civil Rights Ordinances and our public policy against discrimination contained in Chapter 22 of the East Lansing City Code.

First Amendment Retaliation
In his complaint to the federal district court, Tennes alleged that “the incorporation of the Ordinance into the Vendor Guidelines, and subsequent the denial of their application, was retaliation for the messages expressed on Facebook” in violation of his free speech and freedom of religion rights guaranteed by the First Amendment.

As defined by the federal district court, a plaintiff must show the following to establish a claim for retaliation in violation of the First Amendment:

(1) plaintiff was engaged in a constitutionally protected activity, (2) the defendant’s adverse action caused the plaintiff an injury that would deter or chill a person of ordinary firmness from continuing to engage in that activity, and (3) a causal connection such that the adverse action was motivated at least in part as a response to the exercise of the plaintiff’s constitutional rights.

In determining whether a “retaliatory motive existed,” the court would consider all the surrounding circumstances and the time between the protected activity and the adverse action.

Applying these principles to the facts of this case, the federal district court found Tennes had “pleaded a plausible claim for First Amendment retaliation”:

The August and the December Facebook posts are protected speech as both messages contained expressions of religious beliefs. After the August message, the City made repeated requests for the Plaintiffs to stay away from the ELFM. At the end of the 2016 season, the City then amended the Vendor Guidelines for the following 2017 ELFM season. The City directed the ELFM Planning Committee not to invite Country Mill, as it had in the past. The City further directed the Committee to forward Country Mill’s application to it. The City denied the vendor application, an adverse action. The causal relationship can be inferred based on these circumstances. The denial of the vendor application excludes Country Mill from the ELFM, and thus cuts off an income stream.

In the opinion of the federal district court, these adverse actions on the part of the city “would deter a person of ordinary firmness from otherwise engaging in constitutionally protected discussion of religious beliefs.”

First Amendment Religious Freedom
In his complaint, plaintiff Tennes and his family business had further alleged “the Ordinance, and the incorporation of it through the Vendor Guidelines, imposes restrictions on the free exercise of their religion.” In particular, Tennes claimed he had “a sincerely held religious belief that marriage is a sacramental union of one man and one woman.” Moreover, in order to practice his religion, Tennes claimed he had to operate his business in accordance with his religious beliefs.

As noted by the federal district court, “the Free Exercise Clause of the First Amendment to the United States Constitution applies to the States through the Fourteenth Amendment.” As characterized by the court, “the free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” Moreover, the court noted the Free Exercise Clause “protects not only the right to hold a particular religious belief, but also the right to engage in conduct motivated by that belief”:

The Free Exercise Clause protects religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on their religious status...The Free Exercise Clause is implicated if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.

That being said, the federal district court acknowledged that “public authorities may enforce neutral and generally applicable rules and may do so even if they burden faith-based conduct in the process.” On the other hand, even if a law appears to be neutral and generally applicable, the court would invalidate a law where the objective is to “infringe or restrict practices because of their religious motivation” or “worse is a veiled cover for targeting belief or a faith-based practice.”

Religiously Motivated Conduct
Under the circumstances of this case, the federal district court found plaintiff Tennes and his family had alleged sufficient facts to state a plausible claim for a violation of their rights under the Free Exercise Clause. The court found Tennes had alleged sufficient facts to suggest “the City enacted a generally applicable and neutral policy, which was then used to target Plaintiffs’ religiously-motivated conduct”:

The Ordinance did not apply to Plaintiffs in 2016. After the City learned that Plaintiffs would not hold same-sex weddings on their farms because of Plaintiffs’ religious beliefs, the City amended the Vendor Guidelines to incorporate the neutral and generally applicable law and applied it to Plaintiffs.

Accordingly, in the opinion of the federal district court, the complaint was sufficient to support a claim that the city’s action was a “veiled cover for targeting belief or a faith-based practice.” The federal district court found sufficient alleged facts in the complaint “to infer that the predominant purpose of the changes to the Vendor Guidelines was motivated by the disapproval of Plaintiffs’ religious beliefs”:

For this claim and this motion, the Court considers only the complaint. As pled, an objective observer could plausibly view the context of events and consider any secular purpose of the changes to the Vendor Guidelines a sham. For the same reason, an objective observer could plausibly perceive the actual effect of those changes as discouraging the religious belief that marriage should only be between one man and one woman.

To overcome the city’s motion to dismiss, the federal district court found the complaint was indeed adequate to support a claim that the city had denied Tennes’ application based on his “religiously-motivated choices.”

Doctrine of Unconstitutional Conditions
As noted by the federal district court, Tennes had also claimed the city violated “the doctrine of unconstitutional conditions.” As described by the court, the unconstitutional conditions doctrine prevents the government from coercing people into giving up their constitutionally protected rights in exchange for a governmental benefit:

The doctrine applies whether the government approves a benefit that comes with a condition or whether the government denies a benefit because the applicant refuses to meet the condition...Prospectively, the doctrine prohibits the government from conditioning a benefit on an agreement that the recipient refrain from exercising constitutional rights.

Put another way, the government cannot indirectly penalize that which the Constitution otherwise prohibits the government from regulating directly.

In this instance, Tennes alleged the city had pressured him to stop attending the EFLM after his August 2016 Facebook post. In addition, Tennes claimed the city had denied his application to participate in the ELFM in 2017 because he had exercised his constitutionally protected rights under the First Amendment.

In reviewing Tennes’ unconstitutional conditions claim, the federal district court found sufficient facts had been alleged to conclude that the city had arguably denied Tennes a benefit based on his religious beliefs. Specifically, the court found the city had “reacted to protected conduct,” conduct motivated by Tennes’ religious beliefs. Further, the court found the city would have had Tennes “give up” his religiously motivated conduct “in order to obtain a vendor license.”

Motion to Dismiss Denied
Since Tennes had alleged sufficient facts in the complaint to support his claim that the city had violated his First Amendment rights, the federal district court denied the city’s motion to dismiss Tennes’ lawsuit. As a result, Tennes would have an opportunity to pursue and prove his First Amendment claims against the city in further proceedings in a full trial.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University.
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