Con­ser­va­tive Michi­gan con­sul­tants chal­lenge city’s po­lit­i­cal bias ban

The Washington Times Weekly - - National - BY ALEX SWOYER

A Michi­gan city’s anti-dis­crim­i­na­tion law would force po­lit­i­cal op­er­a­tives to work for can­di­dates with whom they ve­he­mently dis­agree, a con­sult­ing firm says in a law­suit chal­leng­ing Ann Ar­bor’s or­di­nance.

Grant Strobl and Ja­cob Ch­ludzin­ski, con­ser­va­tives who run ThinkRight Strate­gies LLC, said they fear hav­ing a so­cial­ist client come to them. Un­der the or­di­nance, which for­bids dis­crim­i­na­tion based on po­lit­i­cal be­liefs, they wouldn’t be per­mit­ted to refuse, they say.

Their law­suit is the lat­est to pit pub­lic ac­com­mo­da­tion laws against the First Amend­ment. Other chal­lenges in­volved florists and bak­ers who said their own rights to free speech were tram­pled when they were or­dered to par­tic­i­pate in ser­vices or ad­vo­cate ideas with which they dis­agree, such as same-sex mar­riage.

The con­sul­tants said they would even have to change their ad­ver­tis­ing strate­gies be­cause say­ing they work for con­ser­va­tive prin­ci­ples could be deemed ex­clu­sion­ary un­der the law.

“This is a con­sti­tu­tional anath­ema. Cit­i­zens should be free to choose for them­selves what they say and what they cel­e­brate — not the govern­ment,” they said in their 57-page com­plaint, filed in fed­eral court.

Of­fi­cials in Ann Ar­bor, a lib­eral col­lege town, didn’t re­spond to a re­quest for com­ment.

The law says “full and equal ac­cess” to all goods and ser­vices must be pro­vided with­out dis­crim­i­na­tion, and it de­fines dis­crim­i­na­tion as mak­ing a de­ci­sion — or re­frain­ing from mak­ing a de­ci­sion — based on a bevy of real or per­ceived char­ac­ter­is­tics.

They are “age, ar­rest record, color, dis­abil­ity, ed­u­ca­tional as­so­ci­a­tion, fa­mil­ial sta­tus, fam­ily re­spon­si­bil­i­ties, gen­der ex­pres­sion, gen­der iden­tity, ge­netic in­for­ma­tion, height, HIV sta­tus, mar­i­tal sta­tus, na­tional ori­gin, po­lit­i­cal be­liefs, race, re­li­gion, sex, sex­ual ori­en­ta­tion, source of in­come, veteran sta­tus, vic­tim of do­mes­tic vi­o­lence or stalk­ing, or weight.”

“Po­lit­i­cal be­liefs” are fur­ther de­fined as “one’s opin­ion, whether or not man­i­fested in speech or as­so­ci­a­tion, con­cern­ing the so­cial, eco­nomic, and gov­ern­men­tal struc­ture of so­ci­ety and its in­sti­tu­tions.”

Un­der the law, if the city deems a com­plaint valid, the vi­o­la­tor will be pe­nal­ized $500 per day.

The law specif­i­cally ex­cludes sit­u­a­tions in which em­ploy­ing some­one with a par­tic­u­lar po­lit­i­cal be­lief would “in­ter­fere or threaten to in­ter­fere with his or her job per­for­mance” and in­cludes a carve-out for poli­cies that in­volve “a bona fide busi­ness ne­ces­sity.”

The con­sul­tants’ law­suit says that def­i­ni­tion is too vague for them to know whether they are ex­empted. They also said the def­i­ni­tion of po­lit­i­cal be­liefs is so vague that it “can­not be un­der­stood by a per­son of or­di­nary in­tel­li­gence.”

Al­liance De­fend­ing Free­dom, a re­li­gious lib­erty law firm rep­re­sent­ing the con­sul­tants, asked a fed­eral judge to is­sue an in­junc­tion against the or­di­nance.

“The First Amend­ment pro­tects peo­ple’s free­dom to choose what to say and what to en­dorse, and Amer­i­cans don’t have to wait to be pun­ished to pro­tect this free­dom,” said Jonathan Scruggs, a se­nior coun­sel for Al­liance De­fend­ing Free­dom.

Pub­lic ac­com­mo­da­tion laws have come un­der scru­tiny at the high­est le­gal lev­els. The big­gest flashpoint has stemmed from clashes be­tween de­vout Chris­tian ar­ti­sans and same-sex cou­ples.

A baker in Colorado has been fight­ing for years to pre­serve his right to refuse to bake cakes cel­e­brat­ing same-sex wed­dings. He said he is will­ing to sell pre-made cakes but forc­ing him to bake a cake for some­thing he op­poses vi­o­lates his First Amend­ment rights.

His case made it to the Supreme Court, which re­turned it to Colorado with a warn­ing to the lo­cal board not to show an­tipa­thy to­ward re­li­gion when it re­views the case.

Robert Tut­tle, a law pro­fes­sor at Ge­orge Wash­ing­ton Univer­sity, drew a distinc­tion be­tween that case and case of the con­sul­tants, say­ing bak­eries and florist shops aren’t in the busi­ness of po­lit­i­cal mes­sag­ing.

He said Ann Ar­bor prob­a­bly doesn’t have the con­sult­ing firm in its sights. “I se­ri­ously doubt this or­ga­ni­za­tion has been threat­ened by en­force­ment,” he said.

Other cities across the coun­try, in­clud­ing the District of Columbia, put po­lit­i­cal be­liefs along­side race, sex and oth­ers among the pro­tected classes in pub­lic ac­com­mo­da­tions laws, said Josh Black­man, a pro­fes­sor at South Texas Col­lege of Law.

He said the laws are used to pre­vent restau­rants and shops from re­fus­ing to serve peo­ple over po­lit­i­cal dif­fer­ences.

If Vir­ginia had such a pro­tec­tion, Mr. Tut­tle said, it might have ap­plied when Sarah Huck­abee San­ders, the for­mer White House press sec­re­tary, was asked to leave the Red Hen restau­rant in Lex­ing­ton, Vir­ginia.

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