East Lansing Demonstrates How Not to Respond to Anti-LGBT “Christian” Businesses

From wedding cakes to apple cider, the nation’s best-funded Christian legal nonprofit is using “religious” foodservice vendors to undermine state and local non-discrimination laws. Typically, as I’ve previously reported here at RD, the Alliance Defending Freedom’s M.O. is to carve out special—and absolute—protections for anti-LGBT views and conduct when framed as “sincerely held religious beliefs.” But in one of the ADF’s latest cases, the well-meaning Michigan city of East Lansing may have been overly zealous in its adoption of an LGBT-inclusive non-discrimination policy at its local farmers market. The details of the case serve as a cautionary tale for municipalities hoping to communicate that anti-LGBT practices will not be tolerated.

According to the preliminary injunction granted in federal court on September 15: Steven Tennes and his family own Country Mill Farms, an apple orchard and event venue located in Charlotte, Michigan. Country Mill Farms (which is not located within city limits) had been participating in the East Lansing Farmers Market for many years. The Tennes family claim that, as devout Catholics, they could not host same-sex couple’s wedding ceremony in 2016.

After the women posted their criticism on Country Mill Farms’ Facebook page, local government officials, including the mayor of East Lansing, started contacting the Tennes family to inquire about potentially discriminatory practices, which may be illegal under the City of East Lansing’s non-discrimination ordinance and which, officials contended, violated the spirit of the farmers market. East Lansing officials repeatedly encouraged Country Mill Farms to “voluntarily elect not to attend the market” for the rest of the season. Country Mill Farms declined, and continued to staff its booth at the East Lansing Farmers Market.

Between the end of the 2016 farmers market season and the beginning of the 2017 season, the East Lansing Farmers Market updated its own vendor policies, adding a provision that stated vendors must comply with East Lansing’s non-discrimination ordinance. To submit an application, vendors had to agree to adhere to this policy not only while at the farmers market, but also “as a general business practice.” When Country Mill Farms applied for a vendor application for the 2017 season, the application was denied. Tennes subsequently sued the city, with legal representation from ADF, claiming a violation of his First Amendment rights to freedom of religion, and retaliation based on that espoused faith.

If the facts of the case accepted by U.S. District Judge Paul Maloney (a George W. Bush nominee) are true, the city of East Lansing essentially played directly into the hands of right-wing legal advocates’ growing strategy to portray anti-discrimination laws as nothing but a veiled assault on “traditional” Christian morality. In what was presumably a well-intentioned effort to make its rejection of discriminatory business-practices known, the city did, in fact, target a small business that had claimed a religious right of refusal—and by all accounts, which had never engaged in discriminatory conduct at the farmers market.

That’s where the city essentially shot itself in the foot: Because all parties agree that there was no discriminatory conduct at the farmers market, East Lansing’s argument that simply allowing Country Mill Farms to sell its merchandise within city limits enables discrimination is a tenuous one. (In the big picture, that might be true: money earned by the Tennes family at East Lansing Farmers Market would presumably be used in the operation of the farm’s event venue, which does enforce a discriminatory policy.)

But because Country Mill Farms (and its event venue) is located in neighboring Eaton County—specifically in Delta Township, which offers no statutory public accommodations protections to LGBT people—that denial of service based on sexual orientation is entirely legal where it took place. Frankly, East Lansing doesn’t have jurisdictional authority to implicate Country Mill’s accommodations policy such that it exists in a neighboring town. This jurisdictional quirk serves as a clear illustration of the kind of problems that arise from the patchwork of legal protections available to LGBT people in states, like Michigan, that don’t have statewide non-discrimination laws.

The judge’s order doesn’t address this jurisdictional component, but rather focuses on another problematic course of behavior from the city of East Lansing. The direct communication between city officials and the Tennes family was unwise, if not illegal. It created a paper trail strongly suggesting the city’s motive for denying Country Mill Farms’ application for the farmers market was based on the city’s dislike of a practice that the Tennes family claimed was central to their faith.

The timing of the city’s revision to its vendor agreement—after officials had encouraged Tennes to voluntarily abstain from the farmers market and expressed skepticism about the legality of the Country Mill’s anti-LGBT policy—bolsters Tennes’s argument that his business was targeted by city officials because he expressed a politically unpopular opinion. The fact that Tennes expressed that opinion as a matter of his faith arguably elevates his claim of persecution to a potential First Amendment violation, which places a much more substantial burden of proof on the city to demonstrate a legitimate and compelling interest in denying Country Mill Farms’ application.

Judge Maloney’s order granted a preliminary injunction in favor of Tennes, requiring the city to allow Country Mill Farms to return to the East Lansing Farmers Market for the remainder of the 2017 season, and barring the city from enforcing the vendor agreement’s non-discrimination provision against Country Mill Farms’ ongoing policy of refusing to host same-sex weddings on the farm. That order did not make a ruling on the merits of the case, but did acknowledge that Tennes had demonstrated a “substantial likelihood that the City of East Lansing’s decision to deny Country Mill’s vendor application for the 2017 East Lansing Farmer’s Market violates their freedom from speech retaliation and their free exercise of religion.”

In First Amendment cases, that substantial likelihood of success comprises a major part of what is needed to trigger an injunction; but I wouldn’t be surprised if, should this case be fully litigated, ADF ends up with another victory to add to its tally. In that event, this case might become one of the most legitimate examples of the supposed myriad ways that Christians with “traditional values” about sex and marriage are being “persecuted” in the public square.