In what can charitably be described as an idiosyncratic reading of the First Amendment, a George W. Bush-appointed federal judge in western Michigan held that businesses can discriminate against LGBTQ customers so long as they explain why they did so on Facebook.
Prior to Judge Paul Maloney’s Friday opinion in Country Mill Farms v. City of East Lansing, it was well understood that the First Amendment does not protect business owners who post signs announcing “blacks need not apply” or “we don’t serve women here.” As the Supreme Court once explained in a related case, “discrimination in employment is not only commercial activity, it is illegal commercial activity,” and “we have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.”
Yet Judge Maloney’s opinion does not simply disregard this longstanding rule, it suggests that a business that is actively engaged in discrimination can immunize itself from the law simply by writing about its discrimination on Facebook.
Country Mill Farms involves a farm in Charlotte, Michigan, about half-an-hour’s drive from East Lansing. The owner of the farm, Stephen Tennes, wished to sell his goods at a farmer’s market in East Lansing, but was denied permission to do so because his business discriminates against same-sex couples, in violation of an East Lansing ordinance.
In addition to selling goods, Tennes’ farm also rents space out to couples wishing to get married. Yet Mr. Tennes objects to same-sex marriages and will only rent this space to opposite-sex couples. It a Facebook post, Tennes explained that he engages in such discrimination because “it remains our deeply held religious belief that marriage is the union of one man and one woman.”
In fairness, there is a potentially difficult legal issue looming behind this case. Though Tennes discriminates at his Charlotte facility, he agreed not to discriminate against LGBTQ customers at the East Lansing market. There may be a plausible legal argument that East Lansing cannot extend its local anti-discrimination ordinance to sanction activity that takes place outside of East Lansing, so long as Tennes complies with the law within the city’s borders.
But Judge Maloney went much further than that, handing down a sweeping decision that, if taken seriously by higher courts, would have a devastating impact on laws banning discrimination.
Even if Tennes’ discrimination against same-sex couples is not protected by the Constitution, Maloney wrote, “Plaintiffs still engaged in protected activity when Tennes communicated his religious beliefs on Facebook in August and December. Even if the City is correct that talking about discrimination is not protected, Plaintiffs also talked about their religious beliefs, which is a protected activity.”
Had Tennes’ merely engaged in discrimination and said nothing about it, his activity may not have been protected, according to the judge. But because he wrote a Facebook post about it, Tennes is now allowed to discriminate. In essence, Maloney holds that Tennes’ discrimination became legal because Tennes posted the equivalent of a “we don’t serve your kind” sign online — or, at least, because that sign also incorporated a reference to Tennes’ religion.
Judge Maloney also holds, in a separate part of his opinion, that Tennes has a right to engage in discrimination because his beliefs were motivated by faith. This claim is also wrong, but it is, at least, a claim that is widely accepted by the judiciary’s right flank. Maloney’s suggestion that discrimination can become lawful so long as a business writes about it on Facebook is much more unusual — and possibly entirely novel.