Sunday, September 17, 2017


The United States Supreme Court has taken up a case out of Colorado in which a baker refused to make a wedding cake for a gay couple. The merchant bases his refusal to bake the cake upon a strongly held religious belief that marriage is a contract between a male and a female.

A decision by the high court is expected in October.

There have been a number of similar cases decided in various State courts.

Typically, these disputes arise in the context of State laws which prohibit invidious discrimination in the market place. These are the so called “civil rights “ laws which originally provided that businesses open to and serving the general public are prohibited from discriminating on the basis of race, color or creed.

The Michigan law expands on that, prohibiting discrimination based on religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.

When I was in law school, we learned in the Contracts course that agreements to buy or sell things were based upon the free choices and decisions of the buyers and sellers. Only enterprises known as public utilities were obligated to deal with everyone and to do so without discrimination.

Candidly, I wish the question of religious freedom were not being injected into these cases. Freedom of contract is perhaps the most fundamental and unequivocal liberty known to mankind. Unless there is a valid, constitutional statute prohibiting or limiting our freedom to buy or sell as we choose, no court should ever interfere with our freedom of contract.

Economic boycotts are classic exercises of political choice in the marketplace. In a free country people have a right to hinge their economic decisions on their political sentiments.

Weddings are expensive. For most of us, a wedding is an orgy of major spending decisions. Cakes, flowers, gowns, musicians, venue rental, the list goes on and on, and every nickel of it is the occasion of a buyer and a seller exercising his or her freedom of contract.

Vendors in the wedding business have become particularly susceptible to and capable of political boycotts since marriage has emerged as one of the most divisive political issues of our time.

In the Obergefell  case, the Supreme Court claimed to discover a constitutional right of same sex marriage. It did not decree that same sex marriage must be approved and abetted by all wedding vendors.

The civil rights statutes in Michigan and elsewhere, protect various classes of people. They do not protect conduct. They prohibit discrimination against people based upon who they are, not what they do.

Michigan farmer Steve Tennes, owner of Country Mill Farms, in Charlotte, rents his barn as a wedding venue. But not for same sex marriages. The City of East Lansing, presumably based upon someone’s complaint, revoked Tennes’ permit to sell his apples at its Farmers’ Market.

A Michigan Court promptly issued an injunction against the City, so Tennes is back in business. At least that’s where the matter stands today.

Again, and unfortunately, Mr. Tennes argues that gay marriage is not approved by his church, and he attributes his barn ban to his Catholic faith.

Too bad. I can’t help wishing that he had just said “It’s my barn, and nobody is a going to tell me who I can rent it to.”

The Obergefell decision opened a can of worms. Its fuzzy notion of a constitutional right to marry is a judicial intrusion into an area that is peculiarly entrusted to the elected legislatures of our nation. Marriage laws typically require a license to marry and spell out who can and who cannot be licensed.

Age, relationship, marital status, mental competence, physical health and residence are all matters that legislatures have regarded as important in the marriage licensing process.  

Does Obergefell sanction incest or child marriage? Nobody knows. One thing is certain: you can’t do it at Country Mill Farms.

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