Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.

2841 Filed 08/06/21 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Country Mill Farms, LLC and Case No. 1:17-cv-00487-PLM-RSK

Stephen Tennes,
Honorable Paul L. Maloney
Plaintiffs,
v. Memorandum in Support of
Plaintiffs Country Mill Farms, LLC,
City of East Lansing, and Stephen Tennes’s Motion for
Partial Directed Verdict
Defendant.
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2842 Filed 08/06/21 Page 2 of 15

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................................... ii

INTRODUCTION ........................................................................................................................ 1

BACKGROUND........................................................................................................................... 1

I. The Supreme Court’s decision in Fulton v. City of Philadelphia ........................ 1

II. The undisputed trial evidence regarding East Lansing’s discretion .................. 3

ARGUMENT ................................................................................................................................ 5

I. The City of East Lansing’s decision to exclude Country Mill from the
Farmer’s Market is unconstitutional for the same reasons as the City of
Philadelphia’s exclusion of CSS from the foster program. .................................... 5

II. The City’s responses to Country Mill’s arguments all fail. ................................... 6

CONCLUSION........................................................................................................................... 10

i
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2843 Filed 08/06/21 Page 3 of 15

TABLE OF AUTHORITIES

Cases

Braunfeld v. Brown,
366 U.S. 599 (1961) .................................................................................................... 7

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................................................................ 6, 7, 8

Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) .................................................................................................... 6

Employment Division, Department of Human Resources of Oregon v. Smith,

494 U.S. 872 (1981) ............................................................................................ 1, 2, 7

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .................................................................................... 1, 2, 3, 5

Gonzales v. O Centro Espirita Beneficente União do Vegetal,

546 U.S. 418 (2006) .................................................................................................... 2

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,

565 U.S. 171 (2012) .................................................................................................... 6

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,

138 S. Ct. 1719 (2018) ................................................................................................ 8

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) .................................................................................................... 9

Tandon v. Newsom,
141 S. Ct. 1294 (2021) .......................................................................................... 9, 10

United States v. Lee,

455 U.S. 252 (1982) .................................................................................................... 7

Other Authorities

Archdiocese of Philadelphia – Office for Financial Services, Financial Statements

and Report of Independent Certified Public Accountants (Nov. 13, 2020),
https://bit.ly/3xpm9ve. ............................................................................................... 6

ii
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2844 Filed 08/06/21 Page 4 of 15

INTRODUCTION

Consistent with the Court’s order from the bench on July 28, 2021 (the final

day of trial in this matter), Steve Tennes and Country Mill Farms file this

supplemental brief in support of their oral motion for partial directed verdict. As

explained in the oral motion and detailed below, the outcome of this case is

controlled by Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). Indeed, as the

Court observed while hearing the oral motion, if you substitute “Country Mill” and

“the City of East Lansing” everywhere that “Catholic Social Services” and “the City
of Philadelphia” appear in the Fulton opinion, it is difficult to see any difference

between the two cases. Accordingly, the Court should grant Plaintiffs a directed

verdict on the individualized-assessments portion of their Free Exercise Claim in

Count IV, then resolve Plaintiffs’ remaining claims through findings of fact and

conclusions of law.

BACKGROUND

I. The Supreme Court’s decision in Fulton v. City of Philadelphia

In Fulton, the City of Philadelphia terminated a contract with Catholic Social

Services (CSS) because CSS would not certify same-sex couples for foster place-

ments or place foster children with same-sex couples. Like the City of East Lansing,

Philadelphia said that policy was prohibited by its agreement with CSS, so it

terminated CSS’s license. The Court observed that it was “plain that the city’s

actions have burdened CSS’s religious exercise.” 141 S. Ct. at 1876.

Also like the City of East Lansing, Philadelphia argued that its agreement

was neutral and generally applicable under Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1981). But the Supreme Court

disagreed, holding that the contract was “not generally applicable as required by

Smith” because it allowed the City’s program director to grant an “exception.”

1
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2845 Filed 08/06/21 Page 5 of 15

Fulton, 141 S. Ct. at 1878. That one clause, said the Court, was a “system of

individual exemptions” or assessments. Id.

Philadelphia protested that it had never exercised that “exception” clause.

But the Supreme Court declared that “[t]he creation of a . . . mechanism for grant-

ing exceptions renders a policy not generally applicable, regardless of whether any

exceptions have been given.” Fulton, 141 S. Ct. at 1879. A discretionary provision

“invites the government to decide which reasons for not complying with the policy

are worthy of solicitude.” Id. (emphasis added) (citing Smith, 494 U.S. at 884).

The Supreme Court also rejected Philadelphia’s plea for deference because

the case arose in a contracting context. “No matter the level of deference,” the Court

explained, “the inclusion of a formal system of entirely discretionary exceptions . . .

renders the contractual non-discrimination requirement not generally applicable.”

Fulton, 141 S. Ct. at 1878. And because Philadelphia’s agreement both imposed a

burden on CSS’s religious exercise and did not qualify as generally applicable,

Philadelphia’s exclusionary policy had to survive strict scrutiny, requiring proof of

government “interests of the highest order” and proof that the policy solution “is

narrowly tailored to achieve those interests.” Id. at 1881.

Philadelphia insisted that it had a compelling interest in preventing

discrimination based on sexual orientation. But the Supreme Court said that

objective was stated at too high a level of generality. Fulton, 141 S. Ct. at 1881.

Under Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418,

430–32 (2006), the Court instead asked whether Philadelphia had such an interest

in denying an exception to CSS in particular. Fulton, 141 S. Ct. at 1882. The Court

held, as a matter of law, that the City lacked a compelling interest in forcing CSS to
certify same-sex couples for foster placement because of Philadelphia’s discretion:

the “creation of a system of exceptions under the contract undermines the City’s

contention that its non-discrimination policies can brook no departures.” Id. In

2
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2846 Filed 08/06/21 Page 6 of 15

other words, the “City offer[ed] no compelling reason why it has a particular

interest in denying an exception to CSS while making them available to others.” Id.

II. The undisputed trial evidence regarding East Lansing’s discretion

The City of East Lansing’s vendor requirements—which appear at Exhibit 24

(2017 version) and 58 (2021 version)—create a system of individualized assessments

that far exceeds Philadelphia’s discretion. Section 6 gives the City discretion to

consider 14 different factors pertaining to how a vendor “will embody the spirit of

the market,” whatever that means. Vendor Requirements § 6. These factors include

the building of customer relationships, compliance with the City’s Human Rights

Ordinance, and “Having fun!” Id. City Manager Lahanas initially testified that the

Human Rights Ordinance was mandatory for vendors. But on cross-examination, he

was forced to admit that these are all just “factors,” and none of the factors are

mandatory, just “something to consider.” What’s more, City Manager Lahanas

confirmed, the City has complete discretion in how to weigh the 14 factors against

each other. See Daily Trial Transcript, Day 2 at 290:20–292:12, attached as Exhibit

B. And that testimony is in accord with the plain language of the contract document

itself, which places no limitations on how the City exercises its discretion.

The City’s Vendor License Agreement, Exhibit 4, confirms the City of East

Lansing’s discretion in § 12, regarding revocation. That provision says that “any

license may be revoked by the City for failure to comply with the guidelines.”

License Agreement § 12 (emphasis added). This is classic government discretion.

The City’s discretion broadens even more under the Human Rights Ordi-

nance (available at Exhibit 24 (2017), and online at https://bit.ly/3ypwLf3). The

Ordinance contains abundant exemptions, including:

• § 22-33(d) (employment of a close family member);

• § 22-33(e) (bona fide occupational qualifications, which former Mayor

Meadows confirmed can be given “at the option of the Commission”);

3
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2847 Filed 08/06/21 Page 7 of 15

• § 22-33(g) (City’s discretion to declare when a contractor has breached a

City contract by violating the Ordinance in its employment);

• § 22-34(c) (housing discrimination involving certain leases);

• § 22-37 (private clubs or other establishments that are not open to the

public are exempt from the Ordinance in its entirety);

• §22-38(d) (Commission has discretion to investigate alleged violations);

• § 22-38(g) (Commission discretion to refer a violator for further action);

• § 22-38(h) (all penalties under the Ordinance are optional, including

whether to impose fines or imprisonment under § 22-38(h)(11));

• § 22-40(b) (City has discretion whether to consider an Ordinance violation

to be a material breach of contract); and

• § 22-40(c) (eight-item list of secular exemptions for City contractors who

do not want to provide domestic partner benefits).

Any one of these exemptions would be enough under Fulton. But the

exemption for private clubs and other establishments not open to the public is

particularly striking. Mayor Meadows testified that a “private club” might include

the Kiwanis or the Rotary Club. And he testified that “other establishments” might

include the VFW. See Ex. B at 355:1–356:9. So if any one of these (or other,

similarly qualified) organizations hosted weddings at a venue but respectfully

declined to host same-sex weddings, the organizations and their venues would be

automatically exempt under the City’s own policies.

The City’s Farmer’s Market Manager at the time, Ms. Majano, put a bow on

all this. She testified that the City has discretion to include or exclude a vendor

based on how “grumpy” they are. And when it came to the vendor improperly selling
non-Michigan cheese, or the vendor who drove his vehicle into another vendor’s

stand, likely due to his intoxication, Ms. Majano agreed the City “looked at it on a

4
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2848 Filed 08/06/21 Page 8 of 15

case-by-case basis” and did what they “thought was fair.” See Daily Trial

Transcript, Day 1 at 206:14–25, attached as Exhibit A.

ARGUMENT
I. The City of East Lansing’s decision to exclude Country Mill from the
Farmer’s Market is unconstitutional for the same reasons as the City
of Philadelphia’s exclusion of CSS from the foster program.
After Fulton, resolving Country Mill’s Free Exercise Claim based on

individualized assessments (Count IV) is straightforward. Under Fulton, it does not

matter why the City of East Lansing declined to allow Country Mill to return to the

Farmer’s Market after learning about the Tenneses’ Catholic marriage beliefs. It

doesn’t even matter if the City of East Lansing ever granted an exemption to

anyone else—though it clearly has, both expressly (private clubs or other establish-

ments not open to the public), and in practice (the non-Michigan cheese vendor and

the intoxicated vendor). The legal problem is that East Lansing’s policy “invites the

government to decide which reasons for not complying with the policy are worthy of

solicitude.” Fulton, 141 S. Ct. at 1879.

From there, the analysis is easy. Like Philadelphia, East Lansing lacks a

compelling reason to force the Tenneses to violate their religious beliefs on their
family farm more than 20 miles outside East Lansing’s city limits. Like the City of

Philadelphia, East Lansing’s unfettered discretion and individualized assessments

and exceptions “undermines the City’s contention that its non-discrimination

policies can brook no departures.” Fulton, 141 S. Ct. at 1882.

In sum, just as in Fulton, East Lansing has (1) burdened Country Mill’s

religious exercise, (2) reserved for itself discretion, assessments, and exceptions, and

(3) has proffered no compelling reason why it has denied an exception and failed to

exercise any discretion for Country Mill. So, like the Supreme Court in Fulton, this

Court should hold that the City of East Lansing’s actions toward Country Mill fail

5
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2849 Filed 08/06/21 Page 9 of 15

strict scrutiny. Like Philadelphia, East Lansing’s system of exemptions undermines

its contention that its non-discrimination policies can brook no departures.

II. The City’s responses to Country Mill’s arguments all fail.

At the hearing on Plaintiffs’ oral motion for directed verdict, the City of East

Lansing advanced several reasons in opposition. But these objections fail:

1. The City first represented that in Fulton, Catholic Social Services was just

an arm of the Archdiocese of Philadelphia and therefore was a “church.” But as the

Archdiocese of Philadelphia represents on its audited financial statements, CSS

(like Catholic Charities West Michigan) is operated separately and distinctly from

the Archdiocese itself. Archdiocese of Philadelphia – Office for Financial Services,

Financial Statements and Report of Independent Certified Public Accountants 10

(Nov. 13, 2020), https://bit.ly/3xpm9ve. Indeed, Catholic Charities of the

Archdiocese of Philadelphia, d/b/a Catholic Social Services, is an independently

incorporated non-profit business entity in Pennsylvania. 1

2. In any event, for-profit businesses enjoy Free Exercise rights, too. In

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), the Supreme Court

granted free-exercise protection to Hobby Lobby, a for-profit business. And while

the Court started with the definition of “person” under the Religious Freedom

Restoration Act, the majority then explained why recognizing corporate free-

exercise rights is consistent with that Court’s First Amendment precedents,

including O Centro (discussed above), Hosanna-Tabor Evangelical Lutheran Church

and School v. EEOC, 565 U.S. 171 (2012), and Church of the Lukumi Babalu Aye,

Inc. v. Hialeah, 508 U.S. 520 (1993). What’s more, explained the Court, a plaintiff

can exercise religion even while seeking profits, as in Braunfeld v. Brown, 366 U.S.

1
Commonwealth of Pennsylvania, Department of State,
https://www.corporations.pa.gov/search/corpsearch (search for entity number 59070 for Catholic
Charities, and entity number 2121323 for the Catholic Social Services dba).

6
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2850 Filed 08/06/21 Page 10 of 15

599 (1961) (plurality), a case involving “five Orthodox Jewish merchants who ran

small retail businesses” who challenged a “Sunday closing law as a violation of the

Free Exercise Clause.” Hobby Lobby, 573 U.S. at 705.

Why would this be so? Because the purpose of the corporate “fiction is to

provide protection for human beings.” Hobby Lobby, 573 U.S. at 706. “A

corporation,” said the Court, “is simply a form of organization used by human

beings to achieve desired ends.” Id. So, “[w]hen rights, whether constitutional or

statutory, are extended to corporations, the purpose is to protect the rights of these

people.” Id. at 706–07. These include, for example, Fourth Amendment rights of

privacy, and protections against government seizure of property without just

compensation. Id. at 707. Accordingly, when considering a for-profit corporation like

Country Mill, “[f]urthering [its] religious freedom also ‘furthers individual religious

freedom,’” i.e., that of the Tennes family. Id. at 709.

Focusing on the Jewish merchants in Braunfeld, the Court clarified that

“[b]usiness practices that are compelled or limited by the tenets of a religious

doctrine fall comfortably within [the] definition” of “exercise of religion.” Hobby

Lobby, 573 U.S. at 710 (relying on Smith, 494 US at 877, and United States v. Lee,

455 U.S. 252, 257 (1982)). “If, as Braunfeld recognized, a sole proprietorship that

seeks to make a profit may assert a free-exercise claim,” id., why can’t Country Mill

and Steve Tennes do the same?

In answering that question, the Supreme Court rejected the City of East

Lansing’s position that the purpose of businesses is just to make money. “[M]odern

corporate law,” said the Court, “does not require for-profit corporations to pursue

profit at the expense of everything else, and many do not do so.” Hobby Lobby, 573
U.S. at 711–12. Indeed, many for-profit corporations “further humanitarian and

other altruistic objectives,” such as preserving the environment, or fair wages and

benefits for foreign workers. Id. at 712. “If for-profit corporations may pursue such

7
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2851 Filed 08/06/21 Page 11 of 15

worthy objectives,” concluded the Court, “there is no apparent reason why they may

not further religious objectives as well.” Id. In sum, East Lansing cannot violate the

Tennes family’s right to live their faith while operating their business.

The City of East Lansing’s response to all this in open Court was to note that

the Lukumi case involved a church. But the Supreme Court applied its Lukumi

precedent in ruling in favor of master-cake baker and small-business owner Jack

Phillips in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.

Ct. 1719 (2018). In sum, the Supreme Court has consistently rejected the City’s

proposition that owners of for-profit companies have no free-exercise protections in

the way they live their faith through their businesses.

3. Next, the City tried to distinguish Fulton because CSS views foster-care as

part of its religious mission. But the evidence here was replete at trial that the

Tenneses, too, view their business as having a religious mission. From the Country

Mill mission statement to its articles of incorporation to the way Steve and Bridget

live out their faith in all their work, the whole enterprise exists to give glory to God.

What’s more, as the Court commented on this very point, the issue here “is

marriages, not apples.” And the Tenneses’ Catholic faith is what motivates them to

host weddings on their family farm in the first place. They are not shy about that

fact. As they explain on their wedding website, “Our mission of an Orchard Wedding

is to glorify God by hosting affordable wedding celebrations that create family

memories.” 2

In any event, the City is trying to draw a distinction that makes no legal

difference. For example, running small retail businesses is not inherently “religious

exercise,” yet the Court recognized the free-exercise rights of the Jewish merchants

who were adversely affected by Sunday closing laws. Nor is it inherently “religious

2
Orchard Wedding.com, https://www.orchardreception.com/ (emphasis added)

8
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2852 Filed 08/06/21 Page 12 of 15

exercise” for Jack Philips to create and sell art made of cake and other edibles. But

the Supreme Court protected Jack’s free-exercise rights because he lived out his

faith in the way he operated his business. The same is true of the Tenneses.

4. Finally, the City suggested that it has no exemptions to its Human Rights

Ordinance, generally or as applied to Farmer’s Market vendors. But that argument

is foreclosed by the Vendor Guidelines and the Ordinance itself. As the four corners

of both documents make clear, the Ordinance and the Guidelines are chock full of

outright exemptions and discretionary exceptions, all of which require the type of

individualized assessments that Fulton condemns. These documents give City

officials plenty of running room to exempt Country Mill. And in the end, Fulton

makes clear that the question presented is not whether Country Mill is eligible for

or should be given an exemption. The question is whether the City exempts or has

the discretion to except anyone else, even if that power has never been exercised.

And the answer to that question is indisputably “yes.”

Fulton is limited in that it does not apply to laws that are truly generally

applicable. For example, if there is a zoning law that requires buildings to be set

back 20 feet from a property line, no exceptions, Fulton is not implicated. But

whenever the government retains exemptions, exceptions, or discretion, then the

government must satisfy strict scrutiny if it declines to exempt a religious

organization or religiously motivated conduct, as the Supreme Court’s Covid cases

explain at length. E.g., Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per

curiam) (citing Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67–68,

(2020) (per curiam)) (“Government regulations are not neutral and generally

applicable, and therefore trigger strict scrutiny under the Free Exercise Clause,
whenever they treat any comparable secular activity more favorably than religious

exercise.”). And “whether two activities are comparable for purposes of the Free

9
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2853 Filed 08/06/21 Page 13 of 15

Exercise Clause must be judged against the asserted government interest that

justifies the regulation at issue.” Tandon, 141 S. Ct. at 1298.

Here, the City of East Lansing’s asserted interest is preventing discrimi-

nation based on sexual orientation. Taking the City at its word, then every

exception, exemption, and exercise of discretion involving the Human Rights

Ordinance implicates the exact same interest. As in Fulton, strict scrutiny applies

to the City’s decision to exclude Country Mill from the Farmer’s Market. And as in

Fulton, the City’s exclusion cannot satisfy strict scrutiny because East Lansing’s

system of exemptions and individual assessments undermines any contention that

its non-discrimination policies brook no departures.

CONCLUSION

Plaintiffs ask that the Court grant them a direct verdict on the individualized-

assessments portion of their Free Exercise Claim in Count IV.

Respectfully submitted this 6th day of August, 2021.

By: s/ Katherine L. Anderson

Katherine L. Anderson (AZ Bar No. 033104)* James R. Wierenga (P48946)

Ryan J. Tucker (AZ Bar No. 034382)* Jeshua T. Lauka (P71958)
Jonathan A. Scruggs (AZ Bar No. 030505)* David & Wierenga, P.C.
Alliance Defending Freedom 99 Monroe Avenue, N.W.
15100 N. 90th Street Suite 1210
Scottsdale, AZ 85260 Grand Rapids, MI 49503
Telephone: (480) 444-0020 Telephone: (616) 454–3883
Fax: (480) 444-0028 Fax: (616) 454–3988
kanderson@adflegal.org jim@dwlawpc.com
rtucker@adflegal.org jeshua@dwlawpc.com
jscruggs@adflegal.org

10
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2854 Filed 08/06/21 Page 14 of 15

David A. Cortman (GA Bar No. 188810)* John Bursch (P57679)

Alliance Defending Freedom Bursch Law PLLC
1000 Hurricane Shoals Rd. NE 9339 Cherry Valley Avenue, SE
Suite D-1100 Suite 78
Lawrenceville, GA 30043 Caledonia, MI 49316
Telephone: (770) 339-0774 Telephone: (616) 450-4235
Fax: (770) 339-6744 jbursch@burschlaw.com
dcortman@adflegal.org

Rachel Csutoros (MA Bar No. 706225)*

Hailey Vrdolyak (IL Bar No. 6333515)*
Alliance Defending Freedom
440 First Street NW, Suite 600
Washington, D.C. 20001
Telephone: (202) 393-8690
Fax: (202) 347-3622
rcsutoros@adflegal.org
hvrdolyak@adflegal.org

ATTORNEYS FOR PLAINTIFFS

11
Case 1:17-cv-00487-PLM-RSK ECF No. 134, PageID.2855 Filed 08/06/21 Page 15 of 15

CERTIFICATE OF SERVICE

I hereby certify that on August 6, 2021, I electronically filed the foregoing

document with the Clerk of Court using the CM/ECF system which will send

notification of such filing to the following counsel of record who are registered users

of the ECF system:

Michael S. Bogren
Plunkett Cooney
333 Bridge St. NW, Ste. 530
Grand Rapids, MI 49504
269-226-8822
mbogren@plunkettcooney.com

Audrey J. Forbush
Plunkett Cooney
Plaza One Financial Ct.
111 E. Court St., Ste. 1B
Flint, MI 48502
269-226-8822
aforbush@plunkettcooney.com

Thomas M. Yeadon
McGinty Hitch Housefield Person
Yeadon & Anderson PC
601 Abbott Rd.
P.O. Box 2502
East Lansing, MI 48826
517-351-0280
tomyeadon@mcgintylaw.com
By: s/ Katherine L. Anderson
Katherine L. Anderson (AZ Bar No. 033104)*
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, Arizona 85260
Telephone: (480) 444-0020
Fax: (480) 444-0028
kanderson@adflegal.org

ATTORNEY FOR PLAINTIFFS

12