Saturday, September 23, 2017

Farmer Tennes, East Lansing, Free Speech and Gay Marriage

We previously have discussed many times that the First Amendment does not protect you from dealing with the consequences of your speech visited upon you by a private entity. If I shared derogatory, confidential, proprietary or private employer information in any of these blog posts, my company would immediately walk me out of the door. I would have no recourse. Many people have used Twitter, Facebook or other social media to share ideas or images that their employer and/or other people found hateful. Often, these people have been fired or have faced calls from the public to lose their job. For many of us I would bet it depends on just whose ox is being gored before we decide if we will join the latest digital mob howling for blood. That's just human nature. I am more sympathetic to some "victims" than I am to others. You probably are as well. There often is a First Amendment issue when the government attempts to punish you or harm your livelihood just because of your speech. That's usually not allowed. Although the Supreme Court has legalized same sex marriage throughout the land, it emphatically did not make anti-gay discrimination illegal to the same extent as racial or gender discrimination. 

The 1964 Civil Rights Act doesn't include gays. And Congress has until now resisted calls to change the law. Some states have made laws against gay discrimination; see the lawsuits over religious bakers refusing to cater gay weddings. But many others have refused to do so.

Michigan is a state without a statewide law forbidding discrimination against gays. Some municipalities do have such laws. East Lansing is one. When Catholic farmer/orchard owner Steve Tennes wrote a Facebook post explaining that he wasn't going to host any same sex marriages any time soon on his farm thank you very much he was probably operating within state and perhaps federal law. But certain people in East Lansing decided otherwise. East Lansing hosted a Farmers Market, at which Tennes sold his products. The city kicked Tennes out and prevented him from returning, claiming that his statements against same sex marriage violated the city ordinance. Tennes fought back and recently won a preliminary injunction in federal court.
For much of this year, Tennes, owner of the Country Mill orchard in Charlotte, has been fighting the city over whether he can sell at the city-run farmers market — something he’d done every year previously since 2010. Tennes’ error was writing about his beliefs on marriage in a Facebook post last year. As Catholics, he and his family believe marriage is between a man and woman, and he wanted to explain (thoughtfully) why he wouldn’t host same-sex weddings on his farm.

East Lansing officials caught wind of this post and didn’t invite Tennes back to the farmers market this year. And they denied his application, specifically stating his post and religious beliefs about marriage. That went against the city’s anti-discrimination ordinance, officials claimed, and they even broadened its definition to include all of a business’ practices — thereby excluding Country Mill, even though it’s 22 miles outside East Lansing’s limits.

Tennes sued the city in May. A federal judge granted the family a preliminary injunction Friday to start selling at the farmers market as the case progresses — just two days after hearing initial arguments. “Because the Court finds that Tennes and Country Mill have a substantial likelihood of success on at least one of their claims brought under the First Amendment, the Court will grant the motion for a preliminary injunction,” wrote Judge Paul Maloney. Kate Anderson, an attorney with the Alliance Defending Freedom who is representing Tennes, was pleased with the decision, and thinks it bodes well for the case’s future, given Maloney’s attention to the First Amendment issues at stake: both freedom of speech and freedom to express religious beliefs.

States in color have anti discrimination laws for LGBT people
I can understand the impulse to hurt people who have hurt you. But it is not currently illegal in Michigan for someone to decline to host a gay wedding. It is illegal to attempt to use the government to force acceptance of a particular worldview or to limit people's economic opportunities based on their religious or political beliefs. People being who they are, I am certain that if I perused the Facebook accounts of many of the people selling goods at the East Lansing Farmers Market I would find many Bad Thoughts. But should I be able to use the government to hurt those people? Well maybe. Maybe not. I would feel a little differently if we were talking about someone's statements that directly impact his or her job or call for violence: a fireman who says he won't save [racial slurs] or a school employee who hopes for dead gays. But that's not what Tennes said. He didn't threaten violence or advocate illegal activity. So I think the judge made the right decision to let Tennes sell his goods at the Farmers Market without having to disavow his private beliefs. But I know some good decent people who vehemently disagree with this position.

What's your call?

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