Business owners are sometimes known for the customers they refuse to serve. Old-fashioned soda counters, for example, refused to serve African American patrons for decades until the civil rights movement of the 1960s addressed, and eventually eliminated, the discriminatory practice.

Today, this issue arises when same-sex couples are refused the services or products of a business. There are a few very interesting cases percolating through the courts, including one here in Michigan.

Last month, a dispute between a cider mill in Eaton County and the City of East Lansing produced an interesting federal court ruling. A ruling that is sure to be appealed as the gay civil rights struggle pushes into new spaces.

For the past five years, the Country Mill was a crowd-pleasing participant at the East Lansing farmer's market. This season, however, the cider mill was not invited back to East Lansing when the city learned of the mill owner's anti-gay views.

Apparently, the Country Mill is a popular and picturesque destination for weddings. Problems arose during the 2016 season, however, when the owner of the mill, Steve Tennes, refused to host a lesbian wedding.

One of the betrothed posted a complaint on Facebook, precipitating a wide-ranging discussion about Tennes' Catholic religious views on the ubiquitous social media platform. For his part, Tennes took the bait and posted his religious-based opposition to same-sex marriage.

Eventually, after email exchanges between Tennes and East Lansing, the Country Mill posted the following policy statement regarding wedding ceremonies at the cider mill:

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. 

When his sixth annual application to sell produce at the farmer's market in East Lansing was denied, Tennes filed a lawsuit in the United States District Court for the Western District of Michigan claiming First Amendment violations and several state law transgressions. The Country Mill immediately sought to enjoin the denial of the application, and sought court permission to participate in the market this fall.

The offending ordinance, promulgated in typical college-town fashion back in 1972, states:

It is hereby declared to be contrary to the public policy of the City of East Lansing for any person to deny any other person the enjoyment of his/her civil rights or for any person to discriminate against any other person in the exercise of his/her civil rights or to harass any person because of religion, race, color, national origin, age, height, weight, disability, sex, marital status, sexual orientation, gender identity or expression, student status, or because of the use by an individual of adaptive devices or aids. 

The Country Mill claims that this ordinance was then hastily amended to include the following language:

VENDORS WILL EMBODY THE SPIRT 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 and as a general business practice. 

Country Mill's application was denied in March in a written communication to Mr. Tennes citing the above ordinance language. In the federal lawsuit, Tennes claims that the denial was in direct retaliation of his lawful exercise of his First Amendment rights.

Federal Judge Paul Maloney agreed, granting the cider mill's motion for injunctive relief and holding that East Lansing cannot deny the cider mill's application based on constitutionally protected First Amendment activity. In granting the injunction, the court felt Tennes would prevail on the merits of his protected speech-based activity and was troubled by how East Lansing singled-out Tennes' application and how it specifically instructed its committee to handle the application.

We will monitor this case to see what happens next. Perhaps the city will appeal the ruling from last week, but only time will tell.

In July, we posted about a case scheduled for argument at the SCOTUS in the upcoming term involving this issue. A cake shop owner refused to provide his wares to a same-sex couple based on his sincerely-held beliefs about same-sex marriage.

These type of same-sex discrimination cases are becoming more common. So common that we here at the Law Blogger have to ask: does the owner of a private business have the right to decline service to a customer based solely on that customer's sexual preference?

www.clarkstonlegal.com
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