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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COUNTRY MILL FARMS, LLC and
STEPHEN TENNES,
Plaintiffs,

Case No. 1:17-cv-00487-PLM-RSK

v.

HON. PAUL L. MALONEY

CITY OF EAST LANSING,
Defendant.
____________________________________________________________________
Katherine L. Anderson
Michael S. Bogren (P34835)
Attorneys for Plaintiffs
Attorney for Defendant
ALLIANCE DEFENDING FREEDOM (AZ)
City of East Lansing
th
15100 N. 90 St.
PLUNKETT COONEY
Scottsdale, AZ 85260
950 Trade Centre Way, Suite 310
(480-444-0020)
Kalamazoo, Michigan 49002
kanderson@adrlegal.org
(269-226-8822)
mbogren@plunkettcooney.com
James R. Wierenga
Jeshua Thomas Lauka
Attorneys for Plaintiffs
DAVID & WIERENGA PC
99 Monroe Ave., NW, Ste. 1210
Grand Rapids, MI 49503
(616-454-3883)
jim@dwlawpc.com
jeshua@dwlawpc.com

Thomas M. Yeadon
Attorney for Defendant
City of East Lansing
McGINTY HITCH HOUSEFIELD PERSON
YEADON & ANDERSON PC
601 Abbott Rd.
P.O. Box 2502
East Lansing, MI 48826
(517-351-0280)
tomyeadon@megintylaw.com

BRIEF IN SUPPORT OF MOTION TO DISMISS
STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the
complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
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statement of the claim showing that the pleader is entitled to relief.” To survive a motion to
dismiss, a complaint need not contain “detailed factual allegations,” but it must contain
more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). A complaint does not “suffice if it tenders ‘naked assertions' devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (quoting Twombly, 550 U.S. at 557).
As the Supreme Court explained in Iqbal and Twombly, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at
556.
In deciding whether the plaintiff has set forth a “plausible” claim, the court must
accept the factual allegations in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 94,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). That presumption, however, is not applicable to
legal conclusions. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555).

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STATEMENT OF FACTS
The City of East Lansing believes the pertinent facts are relatively few, in spite of the
fact the plaintiffs have filed a forty page, nine count, 396 paragraph Amended Complaint.
Country Mill Farms is owned by Steve Tennes. (Amended Complaint, ¶ 3). Country
Mill has participated in the East Lansing Farmer’s Market since 2010. (Amended Complaint,
¶ 4). The City adopted a Policy for the 2017 Farmers’ Market that incorporated the
language of the City’s Human Relations Ordinance by reference and required all 2017
Farmer’s Market vendors to comply with the Ordinance and its “public policy against
discrimination . . . while at the [Market]” and in the vendors’ “general business practice[s].”
(Amended Complaint, ¶ 14). Plaintiffs created the following Facebook post:
“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. . . . lt
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.” (Amended Complaint, Ex. 1). The City informed
plaintiffs in writing in a letter dated March 15, 2017 that they appeared to be in violation of
the Policy. (Amended Complaint, Ex. 1).
When applications opened for the 2017 Market season, the City did not invite
Country Mill to apply. (Amended Complaint, ¶ 16). When Country Mill applied through the

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non-invitational process the City excluded Country Mill from the Market for violating its
Policy. (Amended Complaint, ¶¶ 17, 18).
Further facts, where necessary, will be added in the discussion of the issues.
INTRODUCTION
In spite of plaintiffs’ artful pleading, this case does not present the question of
whether plaintiffs are being denied the right to free exercise of their religion, nor does it
present the question of whether plaintiffs are being denied their right of free speech, either
on City of East Lansing property or off. Rather, this case presents the question of whether a
city may be forced to open its property and engage in a commercial transaction with those
who participate in discriminatory conduct that contravenes that city's stated policy of
prohibiting such discrimination. This is a case where the City’s challenged
nondiscrimination policy regulates conduct, not religious practices or speech. The City’s
nondiscrimination policy does not prevent plaintiffs from exercising their First
Amendment rights to free exercise of religion or free speech.
“We know one basic fact—that homosexual and bisexual citizens have been part of
society from time immemorial. These orientations, like that of heterosexuals, have cut
across all diverse classifications—race, sex, national origin, and religion, to name but a
few.” Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 33 (D.C.
1987). In spite of this, the LGBTQ community has faced a long history of pernicious,
invidious discrimination. This explicitly includes discrimination against couples who
identify as members of the LGBTQ community. “[S]ame-gender couples (whether lesbian,
gay, bisexual, or transgender, hereinafter ‘LGBT’) are a discrete group which has been
subjected to a history of discrimination and violence . . .” Griego v. Oliver, 316 P.3d 865, 871
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N.M.S.C. 2013). “The County does not, and could not in good faith, dispute the historical
reality that gay and lesbian people as a group have long been the victim of purposeful and
invidious discrimination because of their sexual orientation.” Varnum v. Brien, 763 N.W.2d
862, 889 (Iowa 2009).
This history of invidious discrimination against the LGBTQ community is wellrecognized by jurisdictions around the country. See, Kerrigan v. Comm'r of Pub. Health, 289
Conn. 135, 175, 957 A.2d 407, 432 (2008)(“Gay persons have been subjected to and
stigmatized by a long history of purposeful and invidious discrimination that continues to
manifest itself in society.”); Glossip v. Missouri Dep't of Transp. & Highway Patrol Employees'
Ret. Sys., 411 S.W.3d 796, 809 (Mo. 2013)(Teitelman, J. dissenting) (“For decades, indeed
centuries, gay men and lesbians have been subjected to persistent, unyielding
discrimination, both socially and legally. That shameful history continues to this day.”);
Donaldson v. State, 367 Mont. 228, 248, 292 P.3d 364, 376-377 (2012)(Nelson, J.
dissenting)(“. . . gay, lesbian, and bisexual people are reviled and demonized in Montana
and have suffered a history of invidious and prejudicial treatment . . .”); Gay Rights Coal. of
Georgetown Univ. Law Ctr., supra, 536 A.2d at 35 (“Despite its irrelevance to individual
merit, a homosexual or bisexual orientation invites ongoing prejudice in all walks of life,
ranging from employment to education . . .”).
This history of discrimination has also been recognized by the federal courts,
including the United States Supreme Court. See, e.g., High Tech Gays v. Defense Indus. Sec.
Clearance Office, 668 F. Supp. 1361, 1369 (1987), rev'd in part and vacated in part, 895 F.2d
563 (9th Cir. 1990) (“Lesbians and gays have been the object of some of the deepest
prejudice and hatred in American society.”); High Tech Gays v. Defense Indus. Sec. Clearance
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Office, 895 F.2d 563, 573 (9th Cir. 1990) (. . . “homosexuals have suffered a history of
discrimination”); Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989) (“Homosexuals
have suffered a history of discrimination and still do, though possibly now in less degree.”);
Able v. United States, 968 F. Supp. 850, 854 (E.D.N.Y. 1997), rev'd on other grounds, 155 F.3d
628 (2d Cir. 1998) (“gay men and lesbians have endured a long history of discrimination,
both official and private”); Dahl v. Secretary of United States Navy, 830 F. Supp. 1319, 1324
n. 7 (E.D. Cal. 1993) (“It is undisputed that homosexuals have historically been
discriminated against . . ..”); Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 2472, 156 L. Ed.
2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State . . . [it]
is an invitation to subject homosexual persons to discrimination.”); Romer v. Evans, 517 U.S.
620, 634-635, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (“[Colorado's Amendment 2]
raise[s] the inevitable inference that . . . [it was] born of animosity. . . . We must conclude
that Amendment 2 classifies homosexuals not to further a proper legislative end but to
make them unequal to everyone else.”).
This history has of discrimination has very recently been remedied by the courts in
some measure. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)(“The
limitation of marriage to opposite-sex couples may long have seemed natural and just, but
its inconsistency with the central meaning of the fundamental right to marry is now
manifest. With that knowledge must come the recognition that laws excluding same-sex
couples from the marriage right impose stigma and injury of the kind prohibited by our
basic charter.”). Id. at 2602. However, as the Supreme Court observed: “Outlaw to outcast
may be a step forward, but it does not achieve the full promise of liberty.” Id. at 2600.

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In an effort to fulfill the “full promise of liberty” for all its citizens, the City of East
Lansing adopted a human rights ordinance and in 1972 became the first city in the nation
to include sexual orientation as a protected class. (Amended Complaint, ¶¶ 159, 185).
Ordinance § 22-31 is entitled “Public Policy” and 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.
§ 22-31 is a statement of the City’s policy; it does not itself mandate or prohibit any
conduct. Other sections of the Human Rights Act contain prohibitions and requirements as
well as enforcement mechanisms. In this case § 22-35, the section addressing Public
Accommodations or Services has been challenged by plaintiffs. § 22-35(a) defines a public
accommodation:
Place of public accommodation means a business, or an educational,
refreshment, entertainment, recreation, health or transportation facility, or
institution of any kind, whether licensed or not, whose goods, services,
facilities, privileges, advantages, or accommodations are extended, offered,
sold, or otherwise made available to the public.
§ 22-35(b)(1) and (2) provide:
(b) Prohibited practices. Except where permitted by law, a person shall not:
(1) Deny an individual the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of a place of public
accommodation or public service 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.
(2) Print, calculate, post, mail, or otherwise cause to be published a
statement, advertisement, notice, or sign which indicates that the full and
equal enjoyment of the goods, services, facilities, privileges, advantages,
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or accommodations of a place of public accommodation or public service
will be refused, withheld from, or denied an individual because of
religion, race, color, national origin, age, height, weight, sex, disability,
marital status, sexual orientation, gender identity or expression, or
student status, or because of an individual's use of adaptive devices or
aids, or that an individual's patronage of, or presence at a place of public
accommodation, is objectionable, unwelcome, unacceptable, or
undesirable because of religion, race, color, national origin, age, height,
weight, disability, sex, marital status, sexual orientation, gender identity
or expression, or student status or because of the use by an individual of
adaptive devices or aids.”
The City of East Lansing adopted a policy that requires all vendors at the 2017
Farmer’s Market to comply with the City’s Human Relations Ordinance and the City’s
“public policy against discrimination . . . while at the [market] and as a general business
practice.” (Amended Complaint, ¶ 149 and Exhibit 1). The Policy incorporates by reference
the Human Rights Ordinance as well as the City’s “public policy against discrimination”
underlying that Ordinance. (Amended Complaint, ¶ 151 and Exhibit 1).
As the court recognized in Gay Rights Coal. v. Georgetown Univ., supra: “The
government's compelling interests in abolishing sexual orientation discrimination include
‘the fostering of individual dignity, the creation of a climate and environment in which each
individual can utilize his or her potential to contribute to and benefit from society, and
equal protection of the life, liberty and property that the Founding Fathers guaranteed to
us all.’” Id. at 37. The Supreme Court has recognized that regulations banning sexual
orientation discrimination “are well within the State's usual power to enact [if] a legislature
has reason to believe . . . that [the] group is the target of discrimination.” Hurley v. IrishAmerican Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 571-572, 115 S. Ct. 2338,
132 L. Ed. 2d 487 (1995).

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Against this history the defendant will now address the specific claims raised in the
Amended Complaint. The defendant will address those claims in a logical order rather than
in the order they are presented in the Amended Complaint. The plaintiffs present their
claims in a manner calculated to send the defendant on a windmill-tilting journey. The
defendant declines to participate in that quixotic quest and will instead address the claims
as they logically arise from the facts alleged in the Amended Complaint.
I.

THE PLAINTIFFS’ FIRST AMENDMENT CLAIM OF A VIOLATION OF
THE FREE EXERCISE CLAUSE FAILS TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
The Free Exercise Clause of the First Amendment provides that “Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise
thereof . . .” The Free Exercise Clause applies to the States through the Fourteenth
Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213
(1940).
“A governmental policy or enactment that is neutral on its face and of general
applicability need not be justified by a compelling governmental interest even if the law has
the incidental effect of burdening a particular religious practice.” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472
(1993). The Free Exercise Clause prohibits Federal, State and local legislation from
imposing any restraint on the free exercise of religion. “Its purpose is to secure religious
liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is
necessary in a free exercise case for one to show the coercive effect of the enactment as it
operates against him in the practice of his religion.” School Dist. of Abington Twp., Pa. v.
Schempp, 374 U.S. 203, 222-223, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).
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However, this “does not and cannot imply that incidental effects of government
programs, which may make it more difficult to practice certain religions but which have no
tendency to coerce individuals into acting contrary to their religious beliefs, require
government to bring forward a compelling justification for its otherwise lawful actions. The
crucial word in the constitutional text is ‘prohibit’: ‘For the Free Exercise Clause is written
in terms of what the government cannot do to the individual, not in terms of what the
individual can exact from the government.’ Sherbert, supra, at 412, (Douglas, J.,
concurring).” Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-451,
108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988). The Supreme Court has just reiterated this
constitutional principle. “In recent years, when this Court has rejected free exercise
challenges, the laws in question have been neutral and generally applicable without regard
to religion. We have been careful to distinguish such laws from those that single out the
religious for disfavored treatment.” Trinity Lutheran Church of Columbia, Inc. v. Comer, No.
15-577, 2017 WL 2722410, at *7 (June 26, 2017).
Moreover, there is a most important distinction that must be drawn between belief
and conduct. “Our cases have long recognized a distinction between the freedom of
individual belief, which is absolute, and the freedom of individual conduct, which is not
absolute. . . . The Free Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that comport with the religious
beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699, 106 S. Ct. 2147, 90 L. Ed. 2d
735 (1986).
In this case there can be no doubt that the City’s Human Rights Ordinance and the
Farmers’ Market Policy are facially neutral toward religion and are generally applicable.
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These municipal enactments are no different than those upheld by the Sixth Circuit in
Mount Elliott Cemetery Ass'n v. City of Troy, 171 F.3d 398, 405 (6th Cir. 1999)(zoning
ordinances applied to prevent expansion of Catholic cemetery); Prater v. City of Burnside,
Ky., 289 F.3d 417, 428 (6th Cir. 2002)(“Accordingly, the City's refusal to abandon the
dedicated public roadway in favor of the Church [expansion plan] did not, in and of itself,
burden the Church's rights under the Free Exercise Clause.”); and Kissinger v. Bd. of
Trustees of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177, 179 (6th Cir. 1993)(“Ohio
State's curriculum was not intended to prohibit any particular religious practice or belief.
The record contains no evidence that Ohio State used its curriculum to attack or exclude
any individual on the basis of his or her religious beliefs.”). Although the plaintiffs allege the
Ordinance and Policy are not neutral, but are targeted to single them out, these are not
factual allegations that must be accepted as true, but are legal conclusions. The facts alleged
in the Amended Complaint do not support the legal conclusions plaintiffs advance. The fact
is that the Ordinance and Policy apply to every vendor at the Farmer’s Market. (Amended
Complaint, Exhibit 1). The fact is that the Ordinance and Policy apply to conduct, not
beliefs. (Amended Complaint, Exhibit 1). The fact is that the Ordinance and Policy do not
take into account the rationale for why a vendor engages in the prohibited conduct.
(Amended Complaint, Exhibit 1). And finally, unlike the situation in Church of the Lukumi
Babalu Aye, Inc., supra, the fact is that the Ordinance and Policy do not prohibit the
plaintiffs from doing anything as it relates to the practice of their religion. There is no
allegation that discriminating on the basis of sexual orientation is a part of any religious
ceremony of Catholicism. Plaintiffs allege their sincerely held religious beliefs require them
to engage in sexual orientation discrimination in conducting their business practices. As
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things currently stand under Michigan law, they are free to do so outside of the City of East
Lansing. However, the City of East Lansing is not required to allow the plaintiffs to
participate in a City sponsored commercial event on City property if the plaintiffs choose to
engage in that discriminatory conduct. Actions have consequences. The fact that at the time
the plaintiffs filed their Amended Complaint they were the only ones known to the City to
be in violation of the Policy does not detract from the fact that the Policy is facially neutral
toward religion and is generally applicable.
Nor does the fact the Ordinance contains exceptions alter the outcome. “[Plaintiff]
contends that the CSAs [Controlled Substances Acts] are not generally applicable because
they exempt the use of alcohol and tobacco, certain research and medical uses of
marijuana, and the sacramental use of peyote. General applicability does not mean absolute
universality. Exceptions do not negate that the CSAs are generally applicable.” Olsen v.
Mukasey, 541 F.3d 827, 832 (8th Cir. 2008).
Finally, to the extent plaintiffs will attempt to assert an argument that their claims
are subject to strict scrutiny because they are “hybrid” claims that implicate multiple rights
under the First Amendment, such an argument also fails. “Finally, Plaintiffs argue that the
contraceptive mandate is subject to strict scrutiny because it infringes on Plaintiffs' rights
of free speech and association, and thus implicates Plaintiffs’ ‘hybrid’ rights. Because the
Sixth Circuit has rejected the hybrid rights theory advanced by Plaintiffs, Kissinger v. Bd. of
Trustees of The Ohio State Univ., 5 F.3d 177, 180 (6th Cir.1993), this argument must fail.”
Michigan Catholic Conference v. Sebelius, 989 F. Supp. 2d 577, 589 (W.D. Mich. 2013), aff'd
sub nom. Michigan Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th
Cir. 2014), cert. granted, judgment vacated sub nom. on other grounds, Michigan Catholic
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Conference v. Burwell, 135 S. Ct. 1914, 191 L. Ed. 2d 760 (2015), and aff'd sub nom. Michigan
Catholic Conference & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015).
The plaintiffs’ claims that the City’s Ordinances and Policy violate their First
Amendment right to free exercise of religion simply cannot withstand scrutiny.1 Plaintiffs
allege their sincerely held religious beliefs are:
•

that marriage is, and ought to be, only the sacramental union of one man and
one woman. (Amended Complaint, ¶ 301);

•

that to practice their religion they must express that belief through their
public statement and lives. (Amended Complaint, ¶ 302);

•

that to practice their religion they must operate their business in accordance
with their religious beliefs. (Amended Complaint, ¶ 303).

Plaintiffs allege they would violate their religious beliefs:
•

if they retracted their statement of their religious beliefs about marriage.
(Amended Complaint, ¶ 304);

•

if they celebrated or promoted conceptions of marriage other than biblical
marriage between one man and one woman. (Amended Complaint, ¶ 305);

•

if they participated in or hosted weddings that celebrated marriages between
anyone other than one man and one woman. (Amended Complaint, ¶ 306).

For purposes of this motion the defendant will assume both Country Mill Farms, LLC and Stephen Tennes
have standing to bring these claims. See, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2768, 189 L. Ed.
2d 675 (2014). However, Burwell was a case brought and decided under the Religious Freedom Restoration
Act (RFRA), not the First Amendment. The defendant may revisit the issue of standing if this motion to
dismiss is not granted.
1

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Plaintiffs allege their religious beliefs about marriage, expression, and business
practices are based on the Bible and Catholic doctrine. (Amended Complaint, ¶ 307).
Plaintiffs further allege they exercise religion under the First Amendment by stating their
sincerely held religious beliefs about marriage. (Amended Complaint, ¶ 321). For purposes
of this motion the City will accept those allegations as true. Finally, getting to the crux of the
matter, plaintiffs allege that the City’s Policy “substantially burdens Plaintiffs’ religious
exercise by excluding Plaintiffs from the East Lansing Farmer’s Market because they
publicly stated their religious beliefs about marriage, imposing severe coercive pressure
on them to surrender their religious beliefs and expression in order to participate in
the Market.” (Amended Complaint, ¶ 322)(Emphasis added). It is on this last point that
plaintiffs’ free exercise claim collapses.
First, and most obviously, plaintiffs have not alleged (nor could they) that selling
produce at the East Lansing Farmers’ Market is in any way related to exercising their
religion. That is a secular business pursuit and nothing more. Excluding plaintiffs from the
Farmers’ Market has exactly zero effect on the plaintiffs’ ability to freely exercise their
religion.
Additionally, the City of East Lansing’s Ordinance and Policy do not regulate beliefs,
nor do they seek to regulate beliefs. The Ordinance and Policy are addressed only to
conduct. The genesis of the plaintiffs’ discriminatory practices is of no concern whatsoever
to the City. Whether those beliefs are based on religion, moral compulsion, political dogma,
bare bigotry, ignorance or some other rationale is simply of no interest to the City. Indeed,
plaintiffs could renounce Catholicism/Christianity and declare themselves to be agnostic or

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atheists tomorrow2 and they still will be precluded from participating in the Farmer’s
Market if they persist in their action of discriminating on the basis of sexual orientation.
The fact this discriminatory conduct is based on sincerely held religious beliefs does not
insulate that conduct from anti-discrimination laws. This very point was the basis for the
Supreme Court’s decision in Employment Div., Dep't of Human Res. of Oregon v. Smith, 494
U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), overturned due to legislative action (Nov.
16, 1993): “We have never held that an individual's religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. On the contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition. . . . The mere possession of religious convictions
which contradict the relevant concerns of a political society does not relieve the citizen
from the discharge of political responsibilities.” Id. at 878-879.
Our constitutional history is replete with examples of religiously based conduct
being subject to regulation by the government. In rejecting a free exercise challenge to antipolygamy laws in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878), the Supreme
Court stated: “Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices. Suppose
one believed that human sacrifices were a necessary part of religious worship, would it be
seriously contended that the civil government under which he lived could not interfere to
prevent a sacrifice?” Id. at 166. (Emphasis added). Similarly, in Chaplinsky v. State of New
Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), the Supreme Court upheld the
conviction of a member of the Jehovah’s Witnesses for uttering “offensive, derisive or
It is not at all clear how an LLC can be a member of a particular religion, but the defendant will leave that
incongruity aside for the time being.
2

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annoying word[s] to any other person who is lawfully in any street or other public place.”
Id. at 571. In rejecting a free exercise argument the Court stated: ““But even if the activities
of the appellant which preceded the incident could be viewed as religious in character, and
therefore entitled to the protection of the Fourteenth Amendment, they would not cloak
him with immunity from the legal consequences for concomitant acts committed in
violation of a valid criminal statute.” Id.
Cox v. State of New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049 (1941),
affirmed the convictions of five Jehovah's Witnesses who, with sixty-three others of the
same faith, “were convicted in the municipal court of Manchester, New Hampshire, for
violation of a state statute prohibiting a ‘parade or procession’ upon a public street without
a special license.” Id. at 570-571. In rejecting plaintiff’s free exercise challenge the Supreme
Court held: “The argument as to freedom of worship is also beside the point. No
interference with religious worship or the practice of religion in any proper sense is shown,
but only the exercise of local control over the use of streets for parades and processions.”
Id. at 578. So too here, there is no interference with plaintiffs’ free exercise of religion;
there is only the exercise of local control over the discriminatory practices of vendors who
seek to make use of the City’s property.
More recently, and perhaps most significantly, the Supreme Court held the IRS could
disqualify nonprofit private schools that prescribed and enforced racially discriminatory
admissions standards on the basis of religious doctrine as tax-exempt organizations under
§ 501(c)(3) of the Internal Revenue Code. Bob Jones Univ. v. United States, 461 U.S. 574, 577,
103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983). The Supreme Court noted that while “[d]enial of
tax benefits will inevitably have a substantial impact on the operation of private religious
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schools, [it] will not prevent those schools from observing their religious tenets.” Id., at
603-604. The Court also stated: “Whatever may be the rationale for such private schools’
policies, and however sincere the rationale may be, racial discrimination in education is
contrary to public policy. Racially discriminatory educational institutions cannot be viewed
as conferring a public benefit within the ‘charitable’ concept discussed earlier, or within the
Congressional intent underlying § 170 and § 501(c)(3). v. United States Id. at 595-596.
There can be no constitutionally sound argument that sincerely held religious
beliefs would permit a secular business to avoid the prohibitions against racial
discrimination or gender discrimination found in Federal, State and local laws. The Bob
Jones Univ. decision put such an argument to rest. Similarly, other courts have held the
gender anti-discrimination provision of Title VII could be constitutionally enforced against
religious entities. E.E.O.C. v. Fremont Christian School, 781 F.2d 1362, 1369 (9th Cir.
1986)(“Because the impact on religious belief or practice is minimal and the interest in
equal employment opportunities is high, the balance weighs heavily in favor of upholding
Fremont Christian's liability under Title VII for its sexually discriminatory health insurance
compensation program.”); E.E.O.C. v. Tree of Life Christian Sch., 751 F. Supp. 700, 711 (S.D.
Ohio 1990)(“However, although the application of the Equal Pay Act would burden Tree of
Life's freedom to select the manner in which it will bear witness to the belief that the
husband is the head of the household, in the Court's view the burden imposed upon
defendant's central religious beliefs would be limited. . . . Congress' purpose to end
discrimination is equally if not more compelling than other interests that have been held to
justify legislation that burdened the exercise of religious convictions.”).

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One of the tenets of the religious group Nation of Islam is: “We believe that
intermarriage or race mixing should be prohibited.” www.noi.org/muslim-program There
can be doubt that if a member of that faith ran a business similar to the plaintiffs’ business,
but instead of refusing to accommodate same sex couples (or in addition to), refused to
accommodate interracial couples, such a refusal would be subject to the antidiscrimination
laws of the Federal, State and local governments. The other side of that discriminatory coin
is found on the website of the White Camelia Knights of the KKK, which is “a Texas based
KKK organization composed of White Christian Men and Women dedicated to the
advancement and protection of the same Christian beliefs that were the foundation of this
once great nation.” www.wckkk.org/index.html That group states: “The Klan has always
taken a strong stance against interracial marriage. What most people don't understand is
it's against our Heavenly Father's law.” www.wckkk.org/nature.html Again, an adherent of
that particular brand of Christianity who ran a business similar to the plaintiffs’ business
would not be able to invoke the free exercise clause to avoid the antidiscrimination
provisions of Federal, State and local laws that apply to public accommodations if
interracial couples were refused service.
Certain imams of the Islamic faith have opined that women may not drive
automobiles. Shaykh Ibn ‘Uthaymeen was asked to explain that ruling. His lengthy
response concluded: “Based on these two principles, the ruling on women driving should
be

clear,

because

women

driving

includes

a

number

of

evils

.

.

.”

https://islamqa.info/en/45880 If a practitioner of the Islamic faith who was a follower of
that rule operated a business that taught driver’s education, he could not refuse to accept a

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female customer on the basis that doing so would interfere with his right to freely exercise
his religion.
None of these propositions are in any way remarkable from a constitutional
standpoint. Thus, the plaintiffs’ only response to why the City of East Lansing’s
antidiscrimination policy would not fall within this unremarkable constitutional
proposition must be that the subject of the nondiscrimination policy (sexual orientation) is
not worthy of the same level of protection as race or gender. Plaintiffs might well believe
that – and such a belief might be based on their religion – but those beliefs are certainly no
more sincere than the beliefs held by the religious adherents in the prior examples. The
plaintiffs’ beliefs themselves, or their degree of sincerety, cannot be the deciding factor.
Since the Supreme Court has explicitly stated the States (which includes local
governments) have the power to enact legislation banning sexual orientation
discrimination, Hurley, supra, it is difficult to conceive of a viable rationale that would
support plaintiffs’ position. In point of fact, there is no rationale that supports plaintiff’s
position. To the contrary, the courts have utterly rejected any suggestion that sexual
orientation is not entitled to the same level of protection as other protected classes:
The Council determined that a person's sexual orientation, like a person's
race and sex, for example, tells nothing of value about his or her attitudes,
characteristics, abilities or limitations. It is a false measure of individual
worth, one unfair and oppressive to the person concerned, one harmful to
others because discrimination inflicts a grave and recurring injury upon
society as a whole. To put an end to this evil, the Council outlawed sexual
orientation discrimination . . .
Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ. supra, 536 A.2d at 32.
“Even if strict scrutiny applied, the Court would find enforcement of the nondiscrimination
policy against an organization seeking to exclude individuals on the basis of such criteria as
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religion or sexual orientation to be no greater a restriction on that group's free speech or
free association rights than necessary to achieve the state's interest in prohibiting
discrimination.” Every Nation Campus Ministries at San Diego State Univ. v. Achtenberg, 597
F. Supp. 2d 1075, 1098 (S.D. Cal. 2009).
Moreover, when the plaintiffs’ situation is compared to that of the plaintiff in Trinity
Lutheran, supra, it is overwhelmingly clear the plaintiffs in this case have failed to state a
claim upon which relief can be granted. In Trinity Lutheran, Supreme Court invalidated
Missouri’s prohibition on religious groups being eligible to apply for grants. “[T]he
Department's policy puts Trinity Lutheran to a choice: It may participate in an otherwise
available benefit program or remain a religious institution. Of course, Trinity Lutheran is
free to continue operating as a church, just as McDaniel was free to continue being a
minister. But that freedom comes at the cost of automatic and absolute exclusion from the
benefits of a public program for which the Center is otherwise fully qualified.” Trinity
Lutheran, No. 15-577, 2017 WL 2722410, at *8.
Here, on the other hand plaintiffs were not “punished” for what they were
(Catholic), but for what they did (discriminate on the basis of sexual orientation). They
were not given the “Hobson’s choice” of renouncing Catholicism in order to participate in
the Farmer’s Market. The fact that the discriminatory conduct is based on sincerely held
religious beliefs does not insulate that conduct from anti-discrimination laws.
The Supreme Court then explained Trinity Lutheran was not claiming any
entitlement to a subsidy, rather it was asserting a right to participate in a government
benefit program without having to disavow its religious character. “The ‘imposition of such
a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise
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of First Amendment rights.’ Sherbert, 374 U.S., at 405. The express discrimination against
religious exercise here is not the denial of a grant, but rather the refusal to allow the
Church—solely because it is a church—to compete with secular organizations for a grant.”
Trinity Lutheran, No. 15-577, 2017 WL 2722410, at *9. In contrast, plaintiffs are not placed
at a disadvantage because of their status as Catholic or Christian. They are placed on the
same footing – and treated the same way – as every other participant in the Farmer’s
Market.
The Supreme Court then stated: “Here there is no question that Trinity Lutheran
was denied a grant simply because of what it is—a church.” Id. at *10. In this case plaintiffs
were not denied a spot in the Farmer’s Market because of who they were; they were
denied a spot because of what they announced they would do – discriminate against same
sex couples.
Finally, the Supreme Court stated: “In this case, there is no dispute that Trinity
Lutheran is put to the choice between being a church and receiving a government benefit.
The rule is simple: No churches need apply.” Id. at *11. That is not at all the situation here.
Plaintiffs are not put to the choice between being Catholic and receiving a spot at the
Farmer’s Market. Their choice is between engaging in discriminatory business practices
and a spot at the Farmers’ Market. The rule in this case is not: “No Catholics need apply.”
The rule is: “No discriminators need apply.”
‘The First Amendment ... gives no one the right to insist that in pursuit of their own
interests others must conform their conduct to his own religious necessities.’ Otten v.
Baltimore & Ohio R. Co., 205 F.2d 58, 61 (CA2 1953).” Estate of Thornton v. Caldor, Inc., 472
U.S. 703, 710, 105 S. Ct. 2914, 2918, 86 L. Ed. 2d 557 (1985). The City of East Lansing is not
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constitutionally required to forego enforcement of its policy of nondiscrimination because
plaintiffs’ religious beliefs inform them to engage in discriminatory conduct. Plaintiffs are
free to engage in that discriminatory conduct outside the City of East Lansing. However, the
Constitution does not require the City to accommodate that conduct by allowing plaintiffs
to use the City’s property to sell their produce. The Amended Complaint fails to state a
claim upon which relief can be granted on the basis of the Free Exercise Clause.
II.

THE PLAINTIFFS’ FIRST AMENDMENT CLAIM OF A VIOLATION OF
THE ESTABLISHMENT CLAUSE FAILS TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED.
“The language of the Establishment Clause is ‘at best opaque’ and, as the Sixth

Circuit has stated, ‘far from self-defining.’ ACLU v. DeWeese, 633 F.3d 424, 430 (6th
Cir.2011) (quotation omitted). Rather, ‘[t]he Clause erects a blurred, indistinct, and
variable barrier depending on all the circumstances of a particular relationship.’ Lynch v.
Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (quotation omitted).”
Jones v. Hamilton County, Tenn., 891 F. Supp. 2d 870, 876 (E.D. Tenn. 2012), aff'd sub nom.
Jones v. Hamilton County Gov't, Tenn., 530 F. App'x 478 (6th Cir. 2013).
“The long-standing (but not always applied) test for determining whether
government action violates the Establishment Clause was first articulated in Lemon v.
Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under the Lemon test,
government action is upheld unless it is shown not to satisfy any of three elements: “First,
the statute must have a secular legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion; finally, the statute must not foster
an excessive government entanglement with religion. Id. at 612-613 (citations and

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quotation marks omitted).” Am. Civil Liberties Union of Kentucky v. Grayson County, Ky., 591
F.3d 837, 844 (6th Cir. 2010).
The plaintiffs are apparently proceeding under the first and second prongs of the
Lemon test. “Defendant’s enforcement of its Policy to target and exclude Country Mill lacks
any secular purpose in singling out religious speech and belief for exclusion.” (Amended
Complaint, ¶ 330). “Defendant’s enforcement of its Policy to target and exclude Country
Mill also violates the Establishment Clause by singling out religious speech and belief for
hostility.” (Amended Complaint, ¶ 331). Plaintiffs’ factual allegations, taken as true, do not
meet the requirement that the challenged action lacks a secular purpose, nor do the factual
allegations satisfy the interrelated requirement that the challenged action inhibits religion.
The plaintiffs essentially advance the same allegations in support of their Establishment
Clause claim as they do in support of their Free Exercise Clause claim: the City of East
Lansing Ordinance and Policy are allegedly designed to make plaintiffs surrender their
religious beliefs. As a result, most of the same arguments that require dismissal of plaintiffs’
Free Exercise Clause claim apply and require dismissal of plaintiffs’ Establishment Clause
claim.
“Lemon said that government action must have ‘a secular ... purpose,’ 403 U.S., at
612, and after a host of cases it is fair to add that although a legislature's stated reasons will
generally get deference, the secular purpose required has to be genuine, not a sham . . .”
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864, 125 S. Ct. 2722,
162 L. Ed. 2d 729 (2005). “Purpose is determined from the perspective of an objective
observer. McCreary County, 545 U.S. at 862. The ‘objective observer’ is credited with
knowledge of ‘readily discoverable fact,’ including ‘the traditional external signs that show
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up in the “‘text, legislative history, and implementation of the statute’” or comparable
official act.’ Id. (quoting Santa Fe, 530 U.S. at 308). The evidence of purpose must be
external; it cannot involve ‘any judicial psychoanalysis of a drafter's heart of hearts.’ Id.”
Grayson County, supra, 591 F.3d at 848. However, the challenged action need not be
exclusively secular; all Lemon requires is that the action have a secular purpose. Lynch v.
Donnelly, 465 U.S. 668, 724, n. 6, 104 S. Ct. 1355, 1386, 79 L. Ed. 2d 604 (1984). Stated in
terms of the burden placed on the plaintiffs, the Supreme Court has held: “The Court has
invalidated legislation or governmental action on the ground that a secular purpose was
lacking, but only when it has concluded there was no question that the statute or activity
was motivated wholly by religious considerations.” Id. at 680.
When that question is asked in this case, it is clear East Lansing’s purpose in
adopting the Ordinance and Policy was not to inhibit religion, but to inhibit
discrimination. The City’s purpose was clearly not “motivated wholly by religious
considerations,” nor do the facts alleged support a conclusion that religious considerations
were a predominant reason for the City’s actions.3 To state the proposition is to dismiss it
as absurd. Plaintiffs’ insistence on attributing an anti-religious motivation to the City calls
to mind Abraham H. Maslow’s observation: “I suppose it is tempting, if the only tool you
have is a hammer, to treat everything as if it were a nail.” Toward a Psychology of Being.
(1962). Plaintiffs subjective belief they have been singled out for anti-religious treatment
There is dicta in McCreary County that suggests the inquiry is whether the government acted with a
“predominantly” religious purpose, in spite of quoting the language from Lynch that the purpose of the action
must be motivated wholly by religious considerations. See McCreary County, 545 U.S. at 862, (“predominantly
religious purpose”); Id. at 863, (“predominant purpose of advancing religion”); Id. at 881, (“predominantly
religious purpose”); Id. at 864, (secular purpose cannot be “merely secondary to a religious objective”). In this
case the possible conflict between the two concepts is meaningless as the plaintiffs cannot meet either
standard.
3

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dictates they will reach exactly that conclusion regardless of what the facts objectively
demonstrate. However, when an “objective observer” reviews the “objective evidence” and
the history of the City’s anti-discrimination enactments, there is no reasonable conclusion
to reach other than that there was a secular purpose for the City’s actions.
The City suggests the Ninth Circuit’s decisions in Catholic League for Religious & Civil
Rights v. City & Cty. of San Francisco, 567 F.3d 595, 599 (9th Cir. 2009), on reh'g en banc,
624 F.3d 1043 (9th Cir. 2010), are instructive. The City of San Francisco passed a nonbinding resolution, Res. No. 168-06, titled: “Resolution urging Cardinal Levada to withdraw
his directive to Catholic Charities forbidding the placement of children in need of adoption
with same-sex couples.” The Resolution provided:
Resolution urging Cardinal William Levada, in his capacity as head of
the Congregation for the Doctrine of the Faith at the Vatican, to
withdraw his discriminatory and defamatory directive that Catholic
Charities of the Archdiocese of San Francisco stop placing children in
need of adoption with homosexual households.
WHEREAS, It is an insult to all San Franciscans when a foreign country, like
the Vatican, meddles with and attempts to negatively influence this great
City's existing and established customs and traditions such as the right of
same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that “Catholic
agencies should not place children for adoption in homosexual households,”
and “Allowing children to be adopted by persons living in such unions would
actually mean doing violence to these children” are absolutely unacceptable
to the citizenry of San Francisco; and
WHEREAS, Such hateful and discriminatory rhetoric is both insulting and
callous, and shows a level of insensitivity and ignorance which has seldom
been encountered by this Board of Supervisors; and
WHEREAS, Same-sex couples are just as qualified to be parents as are
heterosexual couples; and

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WHEREAS, Cardinal Levada is a decidedly unqualified representative of his
former home city, and of the people of San Francisco and the values they hold
dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the
Catholic Charities of the Archdiocese of San Francisco to defy all
discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in
his capacity as head of the Congregation for the Doctrine of the Faith at the
Vatican (formerly known as Holy Office of the Inquisition), to withdraw his
discriminatory and defamatory directive that Catholic Charities of the
Archdiocese of San Francisco stop placing children in need of adoption with
homosexual households.
Catholic League, 567 F.3d at 597-598. The Board passed the resolution in response to a
then-recent directive from Prefect Cardinal William Levada, instructing the Archdiocese of
San Francisco that Catholic social services agencies should not place children in need of
adoption with gay or lesbian couples. Id. at 598.
Shortly after the Board adopted the Resolution, the plaintiff filed suit in the
Northern District of California, alleging the Resolution violated the Establishment Clause by
expressing disapproval of and hostility towards the Catholic Church and Catholic religious
tenets. The district court granted the defendants’ motion to dismiss, ruling the Resolution
did not have a purpose secondary to a predominant religious purpose nor a primary effect
of expressing hostility towards the Catholic religion. Catholic League v. City and County of
San Francisco, 464 F.Supp.2d 938 (N.D.Cal.2006).
On appeal a panel of the Ninth Circuit affirmed, finding the Resolution to be a
secular message promoting same-sex adoption. The panel noted courts “have long
recognized that certain secular beliefs, views, and positions coincide with religious beliefs,
views, and positions. In such cases, government speech or action with respect to a secular
issue is not considered endorsement of religion simply because the government's views are
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consistent with religious tenets.” Catholic League, supra, 567 F.3d at 603. Citing McGowan v.
Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) and Bowen v. Kendrick,
487 U.S. 589, 612-613, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), the panel held that if “mere
consistency with religious tenets is insufficient to constitute unconstitutional advancement
of religion,” inconsistency is not hostility to it. Catholic League, supra, 567 F.3d at 603.
The Ninth Circuit heard the case en banc and re-affirmed the district court’s ruling
dismissing the case pursuant to Rule 12(b)(6). Three members of the en banc court would
have reversed on the merits, but even the rationale of their dissent reveals the fatal flaws in
the plaintiffs’ Establishment Clause claim in this case. The dissent would have held the
Resolution had the primary purpose of attacking, or “inhibiting” the Catholic religion:
The municipality argues that its purpose was not to condemn Catholicism,
but rather to foster equal treatment of people who are gay and lesbian. That
is indeed a legitimate purpose, but we would not have this case before us if
that were all that the resolution said. The San Francisco government
would face no colorable Establishment Clause challenge had they
limited their resolution to its fourth ‘whereas, that ‘[s]ame sex couples
are just as qualified to be parents as heterosexual couples.’ San
Francisco is entitled to take that position and express it even though
Catholics may disagree as a matter of religious faith. But the title paragraph,
the other five ‘whereas’ clauses, and the ‘resolved’ language are all about the
Catholic Church, not same-sex couples.
Catholic League, supra, 624 F.3d at 1055 (Kleinfeld, J., dissenting)(Emphasis added). The
City of East Lansing’s Ordinance and Policy have no reference to religion or religious
beliefs. The Ordinance is quoted above. The policy provides:
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)
(Amended Complaint, Ex. 1, Policy, ¶ 6(m)). Neither the Ordinance nor the Policy mentions
religion or religious beliefs. They are what they purport to be by their explicit language:
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secular enactments prohibiting discrimination. The Amended Complaint fails as a matter of
law to demonstrate the City’s purpose in enacting or enforcing the Ordinance and Policy
was wholly or predominantly religious.
Also contained within the Establishment Clause is “the principle that the First
Amendment forbids an official purpose to disapprove of a particular religion or of religion
in general,” Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 532, because the “First
Amendment mandates governmental neutrality between religion and religion, and
between religion and nonreligion.” Epperson v. State of Ark., 393 U.S. 97, 104, 89 S. Ct. 266,
270, 21 L. Ed. 2d 228 (1968)(Footnote omitted). The Sixth Circuit has adopted the
“endorsement” analysis, first discussed by Justice O'Connor in Lynch v. Donnelly, 465 U.S.
668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Smith v. Jefferson County Bd. of Sch. Comm'rs,
788 F.3d 580 (6th Cir. 2015), cert. denied sub nom. Kucera v. Jefferson County Bd. of Sch.
Comm'rs, 136 S. Ct. 1246, 194 L. Ed. 2d 175 (2016). “As Justice O'Connor intended, Lynch,
465 U.S. at 688, (O'Connor, J., concurring), the Sixth Circuit ‘has treated the endorsement
test as a refinement or clarification of the Lemon test.’ Granzeier v. Middleton, 173 F.3d 568,
573 (6th Cir.1999) [Citations omitted]. . . . While the first Lemon prong is subjective, the
second is objective. It asks ‘whether, irrespective of government's actual purpose, the
practice under review in fact conveys a message of endorsement or disapproval.’ Id. If
either the purpose or effect of the government activity is to endorse or disapprove of
religion, the activity is unconstitutional. Id.” Smith v. Jefferson County Bd. of Sch. Comm'rs,
supra, at 587. This “purpose” or “effect” must be its principal or primary effect. Id. at 586587.

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Once again the Amended Complaint fails as a matter of law. There is simply no
principled argument that can be advanced that the facts alleged in the Amended Complaint
would allow an objective observer to conclude the principal or primary effect of the City of
East Lansing’s actions was to convey a message of disapproval of religion. The City’s
correspondence to plaintiffs makes no reference to religion or religious beliefs:
“It was brought to our attention this winter that your facebook post dated December
12, 2016 outlines a business practice that would be considered 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.” (March 15, 2017 Letter from City of East
Lansing, Amended Complaint, Ex. 1)(Emphasis added).
The plaintiffs’ Facebook post referred to in the City’s letter states in part:
“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. . . . lt 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.”
(December 12, 2016 Facebook Post, Amended Complaint, Ex. 1)(Emphasis added). While
the plaintiffs explained the rationale for the discriminatory manner in which they chose to
operate their business, the City made no comment on their rationale – only on their actions.
Given these facts – coupled with the fact that the City has included sexual orientation as a
protected class in its Ordinance since 1974 – no reasonable observer could conclude the
principal or primary effect of the City’s action was to convey a message of disapproval of
religion. As the Sixth Circuit explained in Satawa v. Macomb Cty. Rd. Comm'n, 689 F.3d 506
(6th Cir. 2012):
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Nor, by the same token, would a reasonable observer find that the Board's
action had the purpose or effect of endorsing or disapproving of religion, or
that denying the permit created any kind of entanglement. Rather, on this
record, a reasonable observer would take Hoepfner at his written, and
spoken (at the board meeting), word: he was trying to obey the law. Fear of
violating the Constitution, not Satawa's religion, motivated his decision.
Nothing about that fear suggests any view about, or involvement with,
religion at all, short of a desire simply to act lawfully. The district court was
correct to grant summary judgment for the Board on Satawa's Establishment
Clause claim.
Id. at 528. The plaintiffs’ Establishment Clause claim fails as a matter of law.
III.

THE PLAINTIFFS’ FIRST AMENDMENT CLAIMS OF VIOLATION OF THE
RIGHT OF FREEDOM OF SPEECH AND FREEDOM OF THE PRESS FAIL
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
Although the plaintiffs have brought two separate claims alleging violation of

freedom of speech and freedom of the press, the defendant will address the claims
together, as the two claims merge under the facts as alleged in the Amended Complaint. For
purposes of this motion the City of East Lansing will assume plaintiff qualifies for
protection under the freedom of the press clause of the First Amendment for his Facebook
post. While the Supreme Court has not explicitly stated whether the freedom of the press
affords greater protections than that of speech or association, two leading First
Amendment scholars have opined that the Press Clause provides no greater rights. 2
Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, § 22:10 (2002) (“Does the
Press Clause today have jurisdictional significance distinct from the Speech Clause? For the
most part, the answer appears to be ‘no.’ ”); see also Laurence H. Tribe, American
Constitutional Law § 12–1, at 785 n. 2 (2d ed.1988). “Part of the problem, as Professor
Smolla has observed, is that ‘in modern First Amendment jurisprudence, the Press Clause
has largely been subsumed into the Speech Clause.’ Id. at § 22:6.” McConnell v. Fed. Election
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Comm'n, 251 F. Supp. 2d 176, 234–235 (D.D.C.), judgment entered, 251 F. Supp. 2d 948
(D.D.C. 2003), aff'd in part, rev'd in par on other grounds, 540 U.S. 93, 124 S. Ct. 619, 157 L.
Ed. 2d 491 (2003), and aff'd in part, rev'd in part on other grounds, 540 U.S. 93, 124 S. Ct.
619, 157 L. Ed. 2d 491 (2003). Thus, the analysis of the Speech Clause claims will
simultaneously address the Press Clause claim.
The plaintiffs have asserted three distinct claims under the Speech Clause: (1)
content and viewpoint based discrimination; (2) overbreadth; and (3) speech retaliation.
The City will address those claims in that order.
A. Content and Viewpoint Based Discrimination
The plaintiffs allege the City’s Ordinance and Policy are content-based on their face
and as applied to plaintiffs’ conduct “because [they] regulate[ ] speech about a handful of
topics—specifically ‘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’— while leaving unregulated speech
on the virtually unlimited number of other topics not listed in the Policy. East Lansing,
Michigan, Mun. Code § 22-31, 22-35.” (Amended Complaint, ¶ 238). Plaintiffs go on to
allege: “For example, the Policy allows citizens to speak freely on the issue of politics
because political affiliation is not a protected characteristic but restricts speech like
Plaintiffs’ statement of their religious beliefs about marriage because sexual orientation is a
protected characteristic.” (Amended Complaint, ¶ 239). Plaintiffs then allege: “The Policy is
also viewpoint-discriminatory on its face and as applied because it regulates speech based
on the viewpoint expressed.” (Amended Complaint, ¶ 241), and: “the Policy prohibits
speech that makes anyone feel ‘unwelcome,’ ‘objectionable, unacceptable, and undesirable’
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based on one of the enumerated classifications but allows speech expressing the opposite
viewpoint, speech that would make someone feel welcome, accepted, or desired based on
one of the enumerated characteristics.” (Amended Complaint, ¶ 242).
Not satisfied with this Kafkaesque rendition of the case, the plaintiffs plunge headfirst down the rabbit hole by then alleging: “Defendant excluded Plaintiffs from the East
Lansing Farmer's Market because they expressed a religious viewpoint that marriage is
exclusively a union between one man and one woman, while other vendors have been
allowed to freely express viewpoints in support of LGBT issues, such as same-sex
marriage.” (Amended Complaint, ¶ 244).
The problem that plaintiffs face is that these conclusory assertions do not comport
with the actual facts plaintiffs are forced to acknowledge in their Amended Complaint. The
plaintiffs’ conclusions are at best fantastic (i.e. “existing in the imagination; imaginary;
unreal” – Webster’s New World College Dictionary, 4th Ed.) and at worst mendacious. In
spite of attaching the Ordinance and Policy to the Amended Complaint, the plaintiffs refuse
to acknowledge that neither addresses speech in the constitutional sense; they both
address conduct. Plaintiffs have not been denied a spot in the Farmers’ Market because of
what they say (our religion requires us to discriminate), but because of what they do
(discriminate in the operation of their business). This would be a different case if the
plaintiffs did not discriminate in their business practices but instead had displayed their
religious views at the Farmers’ Market and were barred from the Market by the City for
posting their views on same-sex marriage. But this is not that case. This is a case where the
City is reacting to the plaintiffs’ conduct – not to their speech.

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The plaintiffs’ attempted legerdemain of turning conduct into speech has been
repeatedly rejected by the Supreme Court for decades. In Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), the Supreme Court held that Missouri
could apply its antitrade restraint law to labor union activities and could enjoin union
members from peaceful picketing carried on as an essential and inseparable part of a
course of conduct which is in violation of the state law. In rejecting a claim Missouri’s
actions violated the First Amendment – similar to the claim plaintiffs assert in this case –
the Supreme Court held: “But it has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means of language, either spoken, written,
or printed.” Id. at 502 (Emphasis added).
The Supreme Court followed this holding in Cox v. State of Louisana, 379 U.S. 536,
555, 85 S. Ct. 453, 465, 13 L. Ed. 2d 471 (1965): “We reaffirm the statement of the Court in
Giboney v. Empire Storage & Ice Co., supra, 336 U.S., at 502, that ‘it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.’”
In Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S. Ct. 1912, 56 L. Ed. 2d 444
(1978), the Supreme Court held that banning in-person solicitation of potential clients by
attorneys was not a First Amendment violation. The Supreme Court stated:
Numerous examples could be cited of communications that are regulated
without offending the First Amendment, such as the exchange of information
about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert.
denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), corporate proxy
statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24
L.Ed.2d 593 (1970), the exchange of price and production information among
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competitors, American Column & Lumber Co. v. United States, 257 U.S. 377, 42
S.Ct. 114, 66 L.Ed. 284 (1921), and employers' threats of retaliation for the
labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89
S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969). See Paris Adult Theatre I v. Slaton,
413 U.S. 49, 61-62, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973). Each of these
examples illustrates that the State does not lose its power to regulate
commercial activity deemed harmful to the public whenever speech is a
component of that activity.
Id. at 456 (Emphasis added).
The Supreme Court, relying heavily on Ohralik, subsequently upheld a state athletic
association’s rules prohibiting high schools from using “undue influence” in recruiting
middle school students for their athletic programs, including direct solicitation by coaches,
against a First Amendment challenge. Tennessee Secondary Sch. Athletic Ass'n v. Brentwood
Acad., 551 U.S. 291, 298–299, 127 S. Ct. 2489, 168 L. Ed. 2d 166 (2007).
More recently the Supreme Court reiterated these holdings in Rumsfeld v. Forum for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006), with
language directly applicable to this case: “Congress, for example, can prohibit employers
from discriminating in hiring on the basis of race. The fact that this will require an
employer to take down a sign reading ‘White Applicants Only’ hardly means that the law
should be analyzed as one regulating the employer's speech rather than conduct.” Id.
at 62 (Emphasis added).
Most recently in Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1150–51,
197 L. Ed. 2d 442 (2017), the Supreme Court again explained:
But § 518 is not like a typical price regulation. Such a regulation—for
example, a law requiring all New York delis to charge $10 for their
sandwiches—would simply regulate the amount that a store could collect. In
other words, it would regulate the sandwich seller's conduct. To be sure, in
order to actually collect that money, a store would likely have to put “$10” on
its menus or have its employees tell customers that price. Those written or
oral communications would be speech, and the law—by determining the
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amount charged—would indirectly dictate the content of that speech. But
the law's effect on speech would be only incidental to its primary effect
on conduct, and “it has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.” Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 62, 126 S.Ct. 1297, 164 L.Ed.2d 156
(2006) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69
S.Ct. 684, 93 L.Ed. 834 (1949); internal quotation marks omitted); see also
Sorrell v. IMS Health Inc., 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544
(2011).
Id. at 1150-1151(Emphasis added). The circuit court and district court cases applying this
holding are legion. The irrefutable conclusion that must be reached is that plaintiffs have
failed to state a claim for relief under the Speech Clause. The City of East Lansing did not,
and does not seek to regulate speech – only conduct the City has determined to be injurious
to the public welfare. The fact that speech is used as a means of carrying out that conduct
does not transmogrify this case into a Speech Clause case.
B. Overbreadth
Plaintiffs allege the City’s Policy violates the overbreadth prohibition of the First
Amendment because “in many instances it bans protected speech, particularly speech on
controversial topics, like Plaintiffs' statement of the religious belief that marriage is a union
between one man and one woman.” (Amended Complaint, ¶ 251). As has just been
discussed, the Policy does not ban any speech at all; it is directed at conduct, not speech.
Plaintiffs then allege the Policy is overbroad because it interprets the term “general
business practices to include business owners’ religious statements, beliefs and practices.”
(Amended Complaint, ¶ 254). While that conclusion certainly comports with plaintiffs’
worldview, it bears no relationship to the actual facts alleged in the Amended Complaint.
Conspicuous by its absence is any attempt by plaintiffs to cite any language in either the
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Policy or the Ordinance that the City seeks to regulate anyone’s religious statements,
beliefs or practices. The City cares not a whit about anyone’s religious statements, beliefs or
practices – as is constitutionally required. What the City cares about is conduct – as is
constitutionally permitted.
Plaintiffs then assert the use and definition of the term “harassment” is
constitutionally overbroad, but provides not even a hint as to why that is the case.
Finally, plaintiffs go through a litany of terms from the Policy and Ordinance,
including “discriminate,” “unwelcome,” “objectionable,” “unacceptable,” and “undesirable,”
and claim that because the terms are undefined the City is given “unbridled discretion” to
punish disfavored speech. (Amended Complaint, ¶ 260). It can fairly be said that plaintiffs
have “aim[ed] in the general direction of the federal Constitution with buckshot.” Coogan v.
City of Wixom, 820 F.2d 170, 174 (6th Cir. 1987), quoting Chiplin Enterprises v. City of
Lebanon, 712 F.2d 1524, 1526 (1st Cir.1983). Defendant will attempt to address each of the
pellets fired by plaintiffs.
In a First Amendment case, “a law may be invalidated as overbroad if ‘a substantial
number of its applications are unconstitutional, judged in relation to the statute's plainly
legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d
435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449
n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008))(Emphasis added); United States v. Williams,
553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). “Even in free-speech cases, however,
facial invalidation of a statute remains ‘strong medicine that is not to be casually
employed.’” Williams, 128 S.Ct. at 1838 (internal quotation marks omitted).” Connection
Distrib. Co. v. Holder, 557 F.3d 321, 336 (6th Cir. 2009). “[T]he burden of demonstrating ...
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substantial overbreadth” is on the claimant. Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct.
2191, 156 L.Ed.2d 148 (2003); Connection Distrib. Co., supra, 557 F.3d at 336.
“The first step in overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the
statute covers.” United States v. Williams, supra, 553 U.S. at 293. After construing the
statute, the Court must determine whether it “criminalizes a substantial amount of
protected expressive activity.” See Id. at 297. This requires comparing the likely number of
unconstitutional applications of the statute with the plainly legitimate applications. United
States v. Stevens, 559 U.S. at 473. “The overbreadth doctrine prohibits the Government from
banning unprotected speech if a substantial amount of protected speech is prohibited or
chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S. Ct. 1389,
152 L. Ed. 2d 403 (2002).
Plaintiffs do not allege any facts that address their burden of demonstrating the
Policy “criminalizes a substantial amount of protected expressive activity.” This is probably
due to the fact that the Policy does not criminalize, penalize or otherwise address any
protected activity. As has been repeatedly demonstrated, the policy addresses conduct, not
speech. Moreover, there is no constitutionally protected right to engage in discriminatory
practices that conflict with laws prohibiting such practices. Roberts v. U.S. Jaycees, 468 U.S.
609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), construed the Minnesota Human Rights Act,
which is strikingly similar to the City of East Lansing’s enactments:
“It is an unfair discriminatory practice:
“To deny any person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of a place of public
accommodation because of race, color, creed, religion, disability, national
origin or sex.” Minn.Stat. § 363.03, subd. 3 (1982).
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The term “place of public accommodation” is defined in the Act as “a
business, accommodation, refreshment, entertainment, recreation, or
transportation facility of any kind, whether licensed or not, whose goods,
services, facilities, privileges, advantages or accommodations are extended,
offered, sold, or otherwise made available to the public.” § 363.01, subd. 18.
Id. at 615. The Supreme Court noted that “[o]n its face, the Minnesota Act does not aim at
the suppression of speech, does not distinguish between prohibited and permitted activity
on the basis of viewpoint, and does not license enforcement authorities to administer the
statute on the basis of such constitutionally impermissible criteria.” Id. at 623. “Instead, as
the Minnesota Supreme Court explained, the Act reflects the State's strong historical
commitment to eliminating discrimination and assuring its citizens equal access to publicly
available goods and services. See 305 N.W.2d, at 766–768. That goal, which is unrelated to
the suppression of expression, plainly serves compelling state interests of the highest
order.” Id., at 624. The Court then held: “As we have explained, acts of invidious
discrimination in the distribution of publicly available goods, services, and other
advantages cause unique evils that government has a compelling interest to prevent—
wholly apart from the point of view such conduct may transmit. Accordingly, like violence
or other types of potentially expressive activities that produce special harms distinct from
their communicative impact, such practices are entitled to no constitutional
protection.” Id. at 628.
When the City of East Lansing’s enactments are examined the only answer to the
question

of

“what

constitutionally

protected

expression

would

be

criminalized/banned/impacted by the enactments?” is: none. Contrary to the plaintiffs’
rote repetition that the City acted in response to their speech, that contention is
demonstrably untrue. The City acted in response to the plaintiffs’ stated intent to act in
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violation of the City’s Ordinance and Policy. The City is constitutionally entitled to do so. To
demonstrate the fallacy of plaintiffs’ argument consider the following situation. The
plaintiffs have announced they are unwilling to accommodate same sex couples in their
business practices because same sex marriage is contrary to their religious beliefs. Another
vendor announces she is unwilling to accommodate same sex couples in her business
practices due to her belief that same sex marriage is scientifically unsound and therefor
“unnatural.” Under the plaintiffs’ view of the Constitution the City could apply the
Ordinance and Policy to the other vendor, but not to plaintiffs. It simply cannot be the law
that when two people discriminate in violation of legislation and one announces he does it
for religious reasons that person gains a constitutional safe haven for his conduct while the
secular discriminator does not. If this were the law everyone could legally commit
discrimination by simply announcing, “God made me do it.” (Or in the case of a Satanist,
“The devil made me do it.”)
The plaintiffs’ overbreadth challenge cannot overcome the Supreme Court’s
decisions in Roberts v. U.S. Jaycees, supra, at 630-631, (“The state court's articulated
willingness to adopt limiting constructions that would exclude private groups from the
statute's reach, together with the commonly used and sufficiently precise standards it
employed to determine that the Jaycees is not such a group, establish that the Act, as
currently construed, does not create an unacceptable risk of application to a substantial
amount of protected conduct.”), and N.Y. State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1, 14,
108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988) (“To succeed in its challenge, appellant must
demonstrate from the text of Local Law 63 and from actual fact that a substantial number
of instances exist in which the Law cannot be applied constitutionally. Yet appellant has not
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identified those clubs for whom the antidiscrimination provisions will impair their ability
to associate together or to advocate public or private viewpoints.”) The plaintiffs’ only
allegation regarding other protected conduct is the allegation that “in many instances [the
Policy] bans protected speech, particularly speech on controversial topics, like Plaintiffs'
statement of the religious belief that marriage is a union between one man and one
woman.” (Amended Complaint, ¶ 251). But the Policy, of course, does no such thing. It bans
no speech at all. It is addressed to conduct.
Dambrot v. Cent. Michigan Univ., 55 F.3d 1177, 1182 (6th Cir. 1995), held Central
Michigan University’s antidiscrimination policy unconstitutional under the overbreadth
doctrine. A comparison of the two enactments demonstrates the City of East Lansing’s
Ordinance and Policy do not suffer from the infirmities as the CMU policy did. The CMU
policy defined racial and ethnic harassment as “any intentional, unintentional, physical,
verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or
offensive educational, employment or living environment by ... (c) demeaning or slurring
individuals through ... written literature because of their racial or ethnic affiliation; or (d)
using symbols, [epithets] or slogans that infer negative connotations about the
individual's racial or ethnic affiliation.” Id. at 1182. (Emphasis added). This policy,
without any question, was explicitly designed to regulate speech.
In contrast, East Lansing’s Ordinance prohibiting discrimination in public
accommodations or services, § 22-35, quoted above, prohibits certain practices – that is,
conduct. It simply does not address speech. To the extent plaintiffs attempt to argue § 2235(a)(2) regulates speech, they would once again be wrong. That section provides that a
person shall not: “Print, calculate, post, mail, or otherwise cause to be published a
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statement, advertisement, notice, or sign which indicates that the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service will be refused, withheld . . .” While at first blush it
might appear that section of the Ordinance addresses speech, it does not. It prohibits
people from conveying the fact that they engage in discriminatory practices. This is
precisely the same example the Supreme Court addressed in in Rumsfeld v. Forum for Acad.
& Institutional Rights, Inc., supra: “Congress, for example, can prohibit employers from
discriminating in hiring on the basis of race. The fact that this will require an employer
to take down a sign reading ‘White Applicants Only’ hardly means that the law should be
analyzed as one regulating the employer's speech rather than conduct.” Id., 547 U.S. at 62
(Emphasis added).
As previously discussed at length, the Ordinance prohibits discriminatory conduct,
not protected speech. As also previously discussed, one cannot avoid the effect of
discriminatory conduct by announcing the discrimination will take place. In addition to the
previous Supreme Court decisions that hold discriminatory conduct is not entitled to
constitutional protection, the Supreme Court has also rejected constitutional protection to
discriminatory messages in advertising. See Pittsburgh Press Co. v. Pittsburgh Comm'n on
Human Relations, 413 U.S. 376, 388, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (finding that
municipal human rights ordinance that prohibited newspaper from classifying employment
advertisements on the basis of sex did not violate the First Amendment). In fact, the
government is constitutionally permitted to regulate or completely ban speech proposing
illegal conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
496, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982)(“The ordinance is expressly directed at
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commercial activity promoting or encouraging illegal drug use. If that activity is deemed
‘speech,’ then it is speech proposing an illegal transaction, which a government may
regulate or ban entirely.”) Kiser v. Kamdar, 831 F.3d 784, 788 (6th Cir. 2016)(“The correct
inquiry for determining the illegal-activity exception's applicability is whether the
advertised conduct is illegal.”) Here, even assuming the Ordinance regulates speech (which
it does not), it is a permissible regulation because it prohibits conveying the intent to
engage in illegal conduct.
A plaintiff who engages in some conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the conduct of others. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362
(1982); Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S. Ct. 2908, 2913–14, 37 L. Ed. 2d 830
(1973) (“Moreover, even if the outermost boundaries of § 818 may be imprecise, any such
uncertainty has little relevance here, where appellants' conduct falls squarely within the
‘hard core’ of the statute's proscriptions . . .”). In this case the plaintiffs’ conduct “falls
squarely within the hard core of the [Ordinances] proscriptions.” As a result, plaintiffs
cannot argue the Ordinance is constitutionally overbroad because of how it might affect
others.
“Finally, it is irrelevant whether the ordinance has an overbroad scope
encompassing protected commercial speech of other persons, because the overbreadth
doctrine does not apply to commercial speech. Central Hudson, supra, at 565, n. 8.” Village
of Hoffman Estates, supra, 455 U.S. at 496-497. Again, to the extent § 22-35 is found to
regulate speech it does so in the context of public accommodations – purely commercial

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undertakings. Thus, the plaintiffs are foreclosed from advancing an overbreadth claim
based on how the Ordinance might be applied to others.
Plaintiffs have failed to identify unconstitutionally broad applications of the City’s
Ordinance and Policy, let alone demonstrate that a substantial number of such applications
exist. The plaintiffs’ overbreadth claim fails to state a claim upon which relief can be
granted.
Plaintiffs also assert an overbreadth claim on the basis that various undefined terms
give the City “unbounded discretion to punish disfavored speech on marriage and other
topics of public concern.” (Amended Complaint, ¶ 260). Once again, plaintiffs’ claim fails as
a matter of law. “’[T]here are limitations in the English language with respect to being both
specific and manageably brief, and it seems to us that although the prohibitions may not
satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest.'” Broadrick v. Oklahoma, supra, 413 U.S. at 608,
quoting U. S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578579, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973). Language is an imperfect medium. See Grayned
v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (“Condemned to
the use of words, we can never expect mathematical certainty from our language.”).
Therefore, “perfect clarity and precise guidance have never been required even of
regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781,
794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (rejecting facial challenge to statute even
though standards were “undoubtedly flexible, and the officials implementing them w[ould]
exercise considerable discretion”).
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In this case plaintiffs cannot assert an overbreadth claim on the basis the words
“discriminate,” “unwelcome,” “objectionable,” “unacceptable,” and “undesirable,” are
undefined and give the City “unbridled discretion to punish disfavored speech.” Since
plaintiffs’ conduct “falls squarely within the ‘hard core’ of the [Ordinance’s] proscriptions,”
the plaintiffs may not challenge the Ordinance on its potential application to others.
”Village of Hoffman Estates, supra; Broadrick, supra. But even if the plaintiffs could
challenge the Ordinance, the challenge fails as a matter of law.
It is literally incredible plaintiffs would contend the word “discriminate” is
constitutionally infirm. The word has a common-sense meaning that anyone of average
intelligence can understand. In the event plaintiffs are confused about its meaning, it is
defined as: “to make distinctions in treatment, show partiality (in favor of) or prejudice
(against).” Webster’s New World College Dictionary, 4th Ed. See Mattei v. Mattei, 126 F.3d
794, 804 (6th Cir. 1997)(“The definitions of “discriminate” and “discrimination” relied on
by the district court are: “to distinguish; to make distinctions in treatment; show partiality
or prejudice” (Webster's New World Dictionary); and “a failure to treat all persons equally
where no reasonable distinction can be found between those favored and those not
favored” (Black's Law Dictionary). Unlike the district court, we do not find the estate's
action to be necessarily outside the dictionary definitions of ‘discrimination.’”). The use of
the word “discriminate” does not cause the Ordinance to be unconstitutional.
Similarly,

the

words

“unwelcome,”

“objectionable,”

“unacceptable,”

and

“undesirable,” have a commonly understood meaning. These are not terms or art – they are
common words in every-day usage. Although each word conveys a slightly different
meaning, the words are all synonymous and should be clearly understood in context. The
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Supreme Court has rejected similar disingenuous attempts to create uncertainty and
ambiguity where none exists. “In context, however, those meanings are narrowed by the
commonsense canon of noscitur a sociis—which counsels that a word is given more precise
content by the neighboring words with which it is associated.” United States v. Williams,
553 U.S. 285, 294, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008).
The common-sense meaning of the Ordinance is quite simple: One is prohibited
from conveying that a customer will not be served because of his or her sexual orientation.
It is frankly insulting that plaintiffs would feign ignorance over this language. The plaintiffs’
claim of overbreadth fails as a matter of law.
C. Speech Retaliation
There are three elements to a retaliation claim: (1) the plaintiff was engaged in a
constitutionally protected activity; (2) the defendant’s adverse action caused the plaintiff to
suffer an injury that would likely chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the adverse action was motivated at least in part as a
response to the exercise of the plaintiff's constitutional rights. Jenkins v. Rock Hill Local Sch.
Dist., 513 F.3d 580, 585–86 (6th Cir. 2008).
The plaintiffs’ claims of retaliation fail on the first element: plaintiffs did not engage
in a constitutionally protected activity, as discussed at length in the preceding arguments.
“Accordingly, like violence or other types of potentially expressive activities that produce
special harms distinct from their communicative impact, such practices are entitled to no
constitutional protection.” Roberts v. U.S. Jaycees, supra, 468 U.S. at 628.
IV.

THE PLAINTIFFS’ CLAIM OF UNCONSTITUTIONAL CONDITIONS FAIL
TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

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An overarching principle, known as the unconstitutional conditions doctrine,
vindicates the Constitution's enumerated rights by preventing the government from
coercing people into surrendering those constitutional rights. Koontz v. St. Johns River
Water Mgmt. Dist., 133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013). The plaintiffs allege that
the City “has violated the unconstitutional conditions doctrine by pressuring Plaintiffs to
give up their constitutional rights to free speech and free exercise of religion by
conditioning Plaintiffs' receipt of the benefit of continuing to participate in the East Lansing
Farmer's Market on Plaintiffs' willingness to relinquish their free speech, flee press, and
free exercise of religion by publishing Plaintiffs' religious viewpoint on marriage.”
(Amended Complaint, ¶ 287). The most obvious response to the plaintiffs’ contention is the
City of East Lansing is not providing a “benefit” to any vendor at the Farmers’ Market. It is
engaging in a commercial transaction. On that basis alone, the plaintiffs’ claim fails.
At the risk of sounding like the proverbial broken record (which is quickly becoming
an anachronistic term) the City has not “pressured” the plaintiffs to do anything. The City
has no interest in what plaintiffs believe or what plaintiffs say. The City’s only concern is
compliance with its nondiscrimination policy. Prohibiting a vendor from utilizing City
property because the vendor violates the City’s nondiscrimination Ordinance does not
impose an unconstitutional condition. “The Solomon Amendment neither limits what law
schools may say nor requires them to say anything. Law schools remain free under the
statute to express whatever views they may have on the military's congressionally
mandated employment policy, all the while retaining eligibility for federal funds. . . . As a
general matter, the Solomon Amendment regulates conduct, not speech. It affects
what law schools must do—afford equal access to military recruiters—not what they
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may or may not say. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. supra,, 547 U.S.
at 60 (Emphasis added).
The plaintiffs continue to misconstrue the nature of the City’s actions – and the
nature of their own. The City is refusing to enter into a commercial relationship with the
plaintiffs because the plaintiffs refuse to comply with the City’s nondiscrimination
Ordinance. The City is constitutionally permitted to do so. “An exchange of economic
benefits such as this franchise represents underlies every commercial contract and the
Supreme Court has left no doubt that the Federal Government enjoys power to conclude
commercial bargains. Further, it may employ the remedies available to private citizens in
enforcing a contract. Rex Trailer Co., v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed.
149 (1956); Perkins v. Lukens Steel Co., 310 U.S. 133, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). The
states enjoy a parallel power. United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137
(1938). The doctrine of unconstitutional conditions does not strip state and federal
governments of this indispensible and long acknowledged power. Honolulu Rapid Transit
Co. v. Dolim, 459 F.2d 551, 553 (9th Cir. 1972). See also Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1007, 104 S.Ct. 2862, 2875, 81 L.Ed.2d 815 (1984) (rejecting the argument that a
company was forced into accepting an unconstitutional condition where the company was
aware of the conditions and the conditions were rationally related to a legitimate
government interest).
As a general matter, if a party objects to a condition on the receipt of federal
funding, its recourse is to decline the funds. This remains true when the objection is that a
condition may affect the recipient's exercise of its First Amendment rights. See, e.g., United
States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221
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(2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for
Internet access on the libraries' installing filtering software violated their First Amendment
rights, explaining that “[t]o the extent that libraries wish to offer unfiltered access, they are
free to do so without federal assistance”); Regan v. Taxation With Representation of Wash.,
461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (dismissing “the notion that First
Amendment rights are somehow not fully realized unless they are subsidized by the State”
(internal quotation marks omitted)). Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 133
S. Ct. 2321, 2328, 186 L. Ed. 2d 398 (2013). Here, no benefit is being withheld from
plaintiffs; the City is simply enforcing its Ordinance. The plaintiffs’ claim of unconstitutional
conditions fails as a matter of law.
V.

THE PLAINTIFFS’ CLAIM OF AN EQUAL PROTECTION VIOLATION
FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
Plaintiffs allege they are similarly situated to other vendors (Amended Complaint, ¶

342) and they have been treated differently than other vendors, “For example, Defendant
permits East Lansing Farmer's Market vendors like Good Bites to express messages
promoting LGBT issues, including same-sex marriage.” (Amended Complaint, ¶ 344).
Plaintiffs are not similarly situated to other vendors. Moreover, plaintiffs have never been
prohibited from expressing any message whatever.
“The Equal Protection Clause of the Fourteenth Amendment protects against
invidious discrimination among similarly-situated individuals or implicating fundamental
rights.” Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012). Contrary to
plaintiffs’ continued protestations to the contrary, this is not a case implicating
fundamental rights. The City’s actions were the result of the plaintiffs’ conduct of
announcing they would discriminate in violation of the City’s Ordinance. Committing acts of
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discrimination is not protected conduct and does not implicate fundamental rights. Roberts
v. U.S. Jaycees, supra, 468 U.S. at 628. Indeed, the Sixth Circuit has held the state commits an
equal protection violation itself when it practices discrimination on the basis of sexual
orientation. Id. (“We have previously held that ‘the desire to effectuate one's animus
against homosexuals can never be a legitimate governmental purpose, [and] a state action
based on that animus alone violates the Equal Protection Clause.’ Stemler v. City of Florence,
126 F.3d 856, 873–74 (6th Cir.1997)”).
In typical equal protection cases, plaintiffs “generally allege that they have been
arbitrarily classified as members of an ‘identifiable group.” Pers. Adm'r of Mass. v. Feeney,
442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). When plaintiffs do not claim
membership in a group the Supreme Court has recognized a “class-of-one” theory of equal
protection. Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060
(2000). In “class-of-one” claims, the plaintiff simply “alleges that she has been intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Olech, 528 U.S. at 564. “‘[T]he hallmark of [a ‘class-of-one’] claim is
not the allegation that one individual was singled out, but rather, the allegation of arbitrary
or malicious treatment not based on membership in a disfavored class.’ Aldridge v. City of
Memphis, 404 Fed.Appx. 29, 42 (6th Cir.2010).” Davis v. Prison Health Servs. supra, 679 F.3d
at 441. In order to prevail on a class-of-one claim the plaintiffs must show (1) the City
treated them differently from a similarly situated party, and (2) the City had no rational
basis to do so. EJS Properties, LLC v. City of Toledo, 698 F.3d 845, 864-865 (6th Cir. 2012).
“When evaluating whether parties are similarly situated, ‘courts should not demand exact

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correlation, but should instead seek relevant similarity.’ Perry v. McGinnis, 209 F.3d 597,
601 (6th Cir.2000).” EJS Properties, 698 F.3d at 866.
The plaintiffs have not identified any similarly situated parties for purposes of the
equal protection claim. The plaintiffs are the only vendor that announced it would
discriminate in violation of the City’s Ordinance. If the plaintiffs could identify another
vendor that discriminates but has not been excluded from the Farmers’ Market, they might
have a colorable claim. However, they have not done so and cannot do so.
Finally, the City has what all courts have recognized to be a compelling interest in
prohibiting discrimination on the basis of sexual orientation. The plaintiffs’ equal
protection claim fails as a matter of law.
VI.

THE PLAINTIFFS’ CLAIM OF AN SUBSTANTIVE DUE PROCESS
VIOLATION FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED.
In language that is directly applicable to this case, the Sixth Circuit in Kiser v.

Kamdar, supra, held that a substantive due process claim failed as a matter of law:
To the extent that the Board has limited Kiser's ability to practice dentistry, it
has done so on the basis of his advertisement's contents. The Supreme Court
has repeatedly held that where a particular amendment “provides an explicit
textual source of constitutional protection” against a particular sort of
government behavior, “that Amendment, not the more generalized notion of
‘substantive due process,’ must be the guide for analyzing such a claim.”
Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)
(quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989)). Therefore, this case is properly framed as a commercial-speech
case, rather than an economic-liberty case.
Id. 831 F.3d at 791. The plaintiffs’ claims are based on the First Amendment, and they have
asserted those claims. They are not allowed to regurgitate them as substantive due process
claims. In any event, the claim would fail as a matter of law for the reasons the plaintiffs’
overbreadth claim fails.
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VII.

THE PLAINTIFFS’ CLAIM THE CITY’S ACTIONS VIOLATED THE HOME
RULE CITY ACT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN
BE GRANTED.

The plaintiffs allege the City’s action of enforcing its nondiscrimination Ordinance
violated the Home Rule City Act, M.C.L. 117.1, et. seq. This claim is based on what the
plaintiffs characterize as the limited authority under granted to cities under the Home Rule
City Act. Assuming for purposes of this motion the plaintiffs are correct that the City cannot
enforce its ordinances outside the geographic boundaries of the City, the plaintiffs’ claim
still fails as a matter of law. The plaintiffs’ claim is based on an unsupportable syllogism:
(A) The City cannot legally act outside its geographic boundaries; (B) the plaintiffs’ will
violate the City’s nondiscrimination policy while operating their business outside the City’s
geographic boundaries; (C) therefore the City has illegally acted outside of its geographic
boundaries by enforcing its nondiscrimination policy against the plaintiffs. Once again,
while the plaintiffs’ syllogism has surface appeal, it is not valid.
The plaintiff’s syllogism is based on either one of two false premises: (1) the City’s
action takes place outside the City’s geographic boundaries, or (2) the City cannot take
action inside the City for conduct that occurs outside of the City. Both of these premises are
false and therefore the plaintiffs’ entire syllogism is false. The first alternative premise is
false on its face. The City has never taken action outside its geographic boundaries.
Presumably the plaintiffs will concede that irrefutable point. That would mean the plaintiffs
are relying on the second alternative premise: the City cannot take action inside the City for
conduct that occurs outside the City. There is no law to support this contention and
common sense and decades of real-life experience refute it. As discussed above, the City
can place conditions on its commercial endeavors. One of the conditions the City placed on
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the vendors at the Farmers’ Market was that they comply with the City’s nondiscrimination
ordinance in their general business practices. When plaintiffs failed to do so they were not
issued a citation by the City; the City did not come to their property; the City did not direct
plaintiffs to alter their speech or their beliefs. All the City did was to refuse to allow
plaintiffs to make use of the City’s property to sell its produce – and at the same time forgo
any fee from the plaintiffs for the use of the City’s property.
Everything the City has done is constitutional, legal and permissible under Federal
and State law. The plaintiffs’ claim fails as a matter of law.
VIII.

THE PLAINTIFFS’ CLAIM THE CITY’S ACTIONS VIOLATED THE
MICHIGAN CONSTITUTION FAILS TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.

Without repeating the extensive arguments made earlier in this brief, the plaintiffs’
claims under the Michigan Constitution fail as a matter of law for the same reasons their
claims fail under the United States Constitution. The City does not dispute that “The
Michigan Constitution also contains its own guarantee of religious freedom, see Const.
1963, art. 1, § 4, which ‘is at least as protective of religious liberty as the United States
Constitution.’ People v. DeJonge (After Remand), 442 Mich. 266, 273 n. 9, 501 N.W.2d 127
(1993).” Winkler by Winkler v. Marist Fathers of Detroit, Inc., _____ Mich. _____, (No. 152889,
2017 WL 2800040 June 27, 2017) at *6 . However, all of the shortcomings that apply to the
plaintiffs’ claims under the United States Constitution apply with equal force to the claims
under the Michigan Constitution. Simply put: the City of East Lansing was responding to
plaintiffs’ conduct. It did not attempt to alter plaintiffs’ beliefs. It did not regulate plaintiffs’
speech. It did not burden plaintiffs’ religious practices. It did what the government has

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always been empowered to do: enforce its lawfully enacted ordinances and policies for the
protection and well-being of its citizens.
Plaintiffs’ claims under the Michigan Constitution fail as a matter of law.

RELIEF REQUESTED
Defendant requests the Court dismiss the plaintiffs’ Amended Complaint in its
entirety with prejudice pursuant to Fed. R. Civ. P. 12(b)(6) as it fails to state a claim upon
which relief can be granted.
Respectfully submitted,
DATED: July 14, 2017

PLUNKETT COONEY
BY:__ /s/Michael S. Bogren ____________________
Michael S. Bogren (P34835)
Attorney for Defendant
BUSINESS ADDRESS:
950 Trade Centre Way, Suite 310
Kalamazoo, Michigan 49002
(269-226-8822)
mbogren@plunkettcooney.com

Open.26408.72010.18705968-1

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