From Country Mill Farms, LLC. V. City of East Lansing, decided today by Judge Paul Maloney (W.D. Mich.):
The City of East Lansing requires vendors for its Farmer’s Market to comply with the City’s public policy against discrimination. Country Mill Farms offers to rent a portion of its property [which is not connected with the Farmer’s Market] for weddings. Country Mill Farms, however, will not rent the property for same-sex weddings. Because of this general business practice, the City denied Country Mills Farm’s vendor application for the 2017 East Lansing Farmers Market. Country Mill Farms and its owner, Stephen Tennes, sued….
The court noted that “Defendant’s 2017 decision to deny Plaintiffs’ application substantially burdened Plaintiffs’ free exercise of religion”:
Defendant relied in the revised 2017 vendor guidelines to deny CMF’s application to participate in the ELFM. The stated reason for the denial was the Plaintiffs’ decision not to rent the venue for same-sex weddings. Plaintiffs’ decision was motivated by religious beliefs. Plaintiffs were forced to choose between their religious beliefs and a government benefit for which CMF was eligible….
The court acknowledged that “neutral and generally applicable” policies don’t violate the Free Exercise Clause, but held that the City’s policy wasn’t neutral and generally applicable because it contained discretionary exemptions:
“A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.” Fulton v. City of Philadelphia. “[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of ‘religious hardship’ or present compelling reasons not to do so.” It is the mechanism for the exercise of discretion in granting exemptions, not the existence of objectively defined exemptions, that undermines the general applicability of the law.…
The 2017 Vendor Guidelines allow for the exercise of discretion in at least two ways, discretion that undermines the general applicability of the Guidelines. First, the Guidelines allow for discretion when selecting vendors for invitation and for approving annual vendor applications. Paragraph 4 distinguishes between annual vendors and invited vendors. To be considered for an invitation by the Planning Committee, a vendor must have “consistently adhered to the ELFM Vendor Guidelines and embodied the spirit of the market.” Paragraph 6 sets forth factors a vendor must exhibit to “embody the spirit of the market.”
Multiple factors that affect the success of every vendor are considered:
Merit high quality produce and presentation Convincing amount of produce Attending the market each and every week Offering a diversity of fresh produce Creating an inviting atmosphere for customers Displaying products in a thoughtful and creative way (i.e., use of table clothes, unique signage, three-dimensional displays) Pricing products fairly Being friendly and courteous to, and interacting with customers Building relationships with customers Participating in marketing initiatives and special events Adhering to market guidelines including attendance, parking, safe food handling, signage, etc. Following the MDA Guidelines for Providing Safe Food Samples(Appendix A) 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 (Appendix B) Having fun!
Subsection (m) allows for the Planning Committee to consider whether the vendor discriminates as part of the vendor’s general business practices. During her testimony at trial, Heather Majano, who was the ELFM Market Manager in 2016 and 2017, agreed that the planning committee examines these factors on a case-by-case basis to determine whether to invite or not invite a vendor. Majano agreed that the planning committee could decide not to invite someone because he or she was grumpy or did not have a colorful display. George Lahanas, the City Manager, acknowledged that the Guidelines did not include any indication about how to weigh the different factors, including subsection (m). { Lahanas testified that he would weigh subsection (m) “as a yes-or-no thing.”} This functionally unfettered discretion means that the Vendor Guidelines are not generally applicable and function as a mechanism for individualized decisions.
Second, the Vendor Guidelines give the ELFM market manager discretion to enforce or not enforce the guidelines. Paragraph 15 of the Vendor Guidelines, which sets forth the Market Manager Responsibilities, gives the manager authority to (1) deny or remove vendors from the market, (2) impose disciplinary action, and (3) grant exceptions and accommodations on an individual basis. This enforcement discretion constitutes a “mechanism for individualized exemptions” not functionally different from the policy in Fulton. And, the mere existence of the mechanism, not its exercise, “renders a policy not generally applicable.” …
The court also concluded that the policy wasn’t neutral or generally applicable because it included exemptions for certain secular reasons:
“A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Fulton. Under the Free Exercise Clause, the government “cannot in a selective manner impose burdens only on conduct motivated by religious belief” while failing “to prohibit nonreligious conduct” that undermines the interests protected by the law. …
“A law burdening religious practice that is not neutral or not of general applicability” is subject to strict scrutiny review … [i.e.,] “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” … To meet the strict scrutiny analysis, the government cannot rely on the general interest advanced through enforcement of the law; rather, the government must show its compelling interest in the denial of the exception….
Chapter 22 of the East Lansing City Code, incorporated into the Vendor Guidelines under paragraph 6(m), is not generally applicable because it permits secular conduct through exemptions while prohibiting the same conduct motivated by religious beliefs…. The entire Chapter prohibiting discrimination does not apply to private clubs or other establishments not open to the public. Chapter 22 also contains provisions that allow for discretionary exemptions. See, e.g., § 22-33(e) (discretion to grant employment exemption for bona fide occupational qualification); § 33(g) (for City contract that contain covenants that the contractor will not discriminate against an employee, the City has discretion to declare whether a breach of the covenant is a material breach).
Chapter 22 contains a specific nondiscrimination provision concerning spousal benefits. Chapter 22-40 prohibits the City from contracting with contractors that discriminate on the basis of marital status and sexual orientation by failing to provide employment benefits for employees with domestic partners that the contractor would otherwise provide for the spouse of a married couple. Chapter 22-40 contains objective nondiscretionary exemptions and also contains a discretionary exemption. In subsection (b), the City must include a nondiscrimination covenant concerning these benefits in any contract and the City has discretion to declare a breach of the covenant as a material breach. Subsection (c) contains a list of eight objective, nondiscretionary exemptions, including an exemption for any contract less than $20,000. The objective, nondiscretionary exemptions and the discretion exemption in § 22-40(b) and (c) makes this portion of the ordinance not generally applicable….
The court thus concluded that the denial of a vendor license to CMF had to pass strict scrutiny, and didn’t do so:
The City relies on the general justification for its nondiscrimination policy, its desire to address discrimination on the basis of sexual orientation. Defendant’s nondiscrimination ordinance, however, contains multiple objective exceptions and discretionary exceptions, all of which would allow the City to do business with an entity that discriminates on the basis of sexual orientation. Defendant has not offered any particular justification for enforcing the nondiscrimination ordinance against Plaintiffs. Nor has Defendant explained why it declines to offer Plaintiffs an exemption from the nondiscrimination ordinance when the ordinance provides objective and discretionary exemptions to other business entities….
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