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Court battle rages on in Country Mill vs. East Lansing

Mark Hicks
The Detroit News

A legal fight between East Lansing and a mid-Michigan orchard owner who says the city barred him from its farmers market over his stance on same-sex marriage sets up what one legal expert called a unique case pitting religious liberties against a community's laws aimed at inclusivity for LGBTQ people. 

The trial is expected to begin this year following a nearly 3-year battle after a recent ruling in U.S. District Court for the Western District of Michigan.

The ruling means that it is no clearer which side in the lawsuit will prevail and what, if any, changes would emerge for future vendors. 

Steve and Bridget Tennes (pictured here with four of their five children) believe the city of East Lansing violated their First Amendment rights.

The plaintiff "simply expressed his opinion," said Douglas Laycock, a constitutional law professor at the University of Virginia. "And the city isn't enforcing anyone's right to be served; it is depriving him of a different and totally unrelated benefit. They are treating him as untouchable because he expressed an opinion they disagree with. If the city gets away with this, it would be a very important development. But I don't know any other cases like it."

In 2017, East Lansing denied the vendor application submitted for Country Mill Orchard and Cider Mill in Charlotte, which Stephen Tennes runs, to participate in its farmers market that year. Citing Tennes’ Facebook post explaining that his family's religious beliefs prevented them from hosting same-sex weddings at the business, city officials said the practice violated East Lansing's civil rights ordinance, which prohibits discrimination.

Tennes had posted a statement on Facebook in August 2016 following a woman urging others online not to patronize Country Mill because she and her partner weren’t allowed to marry there. Nearly two years earlier, Tennes referred them elsewhere after telling the couple that “promoting and participating” in a same-sex ceremony would violate his beliefs, according to his complaint.

Days after the post, the city asked Tennes not to attend the next farmers market. Citing pressure from the city, Tennes "decided to temporarily stop booking future weddings at Country Mill," the complaint said. By Dec. 12, 2016, Tennes posted a new message on Facebook: He was resuming hosting weddings, but "only ceremonies involving one man and one woman."

The city then amended the vendor guidelines for its farmer's market, adding a provision stating: "Vendors will embody the spirit of the market by ...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 ..."

Tennes, who had been selling at the market since 2010, was denied a license. Following his lawsuit, a federal judge in 2017 ordered East Lansing  to make room for him, saying the city likely violated his religious and free speech rights.

East Lansing Mayor Mark Meadows has said the city opposes Tennes’ “corporate decision-making,” not his religious beliefs. The city said it will not comment further on the pending case.

The city website listed Country Mill as a vendor during the market's 2019 season.

Tennes’ attorneys had challenged the East Lansing rules. The city argued that since the lawsuit filing, the council had tweaked the disputed language in the ordinance that Tennes' attorneys claimed was too vague.

Last year, city officials voted to recommend approval of amending several

provisions in the city code, including defining "general business practice" and tweaking what it means to harass.

In his Dec. 18 order, U.S. District Judge Paul Maloneywrote that “the city’s nondiscrimination policy covers topics that are not protected by similar federal statutes,” extending protections “beyond sex, race, color, national origin, age, and disability.”

The judge went on to note that the city ordinance “... regulates speech based on the intent of the speaker, without consideration of any actual consequences.” 

His order “correctly recognized that East Lansing’s ordinance was unconstitutionally vague,” said Kate Anderson, senior counsel with Alliance Defending Freedom, the conservative nonprofit representing Tennes, in a statement.

“As the record reflects, the city of East Lansing has consistently used this vagueness to act with hostility towards Steve and Bridget Tennes of Country Mill Farms because city officials simply don’t like their Catholic convictions about marriage. … We are looking forward to stopping this discrimination against Country Mill Farms at trial.”

In his order, Maloneydenied some of Country Mill's requests.

He addressed the Facebook post that led to Tennes' vendor application denial, which said Country Mill "reserved the right to deny a request for services that would require it to communicate, engage in, or host expression that would violate the owner’s sincerely held religious beliefs and conscience.” 

Tennes' legal team claimed that portion of the post was a "reservation of First Amendment rights." Maloney said: “… Under existing Supreme Court precedent, writing about conduct (denying a request for services) does not transform that conduct into expressive conduct protected by the First Amendment.Similarly, claiming that the operation of a business is expression does not make it so. Country Mill has not identified any authority or established any basis for this Court to conclude that the Tennes’ family activities identified in the record constitute “expressive conduct.”

Maloney later noted a vendor at the market “must agree to conduct its business practices consistent with that generally applicable and neutral ordinance,” but the policy “provides no mechanism for objectively evaluating when a message is ‘intimidating’ or ‘offensive.’ The definition of ‘harass’ provides too broad a delegation of authority to restrict communication based on the subjective effect on people who hear the message.”

The lingering, complex questions in the case will need to be sorted out during a trial, said Robert Sedler, a constitutional law professor at Wayne State University Law School.

"The burden is going to be on the farmer to show that the city of East Lansing targeted them with this law. That’s going to be a hard showing to make ...," he said.  "The city can require that all the people wanting to use the farmers market not engage in discrimination, and it is not because of (a) religious view. But on the other hand, if the farmer can show they singled them out, that would violate free exercise."

A pretrial conference has been scheduled for Aug. 24, followed by a trial starting the next month in Kalamazoo, court records show.

The Associated Press contributed to this report