D.C. Bar Exam The bar exam will be administered remotely on October 5 and 6. The bar exam is managed exclusively by the D.C. Court of Appeals Committee on Admissions. For questions or concerns, please visit or email [email protected].



First Amendment Fight Brews in ‘Practicing Christians-Only’ Michigan Summer Resort

By Tracy Schorn

March 23, 2018

Bay View, Michigan
Full Disclosure: The author’s parents own a summer home in Bay View, Michigan, and her father is a former Bay View Association board member in favor of inclusion.

Bay View, Michigan, is an idyllic place, complete with gazebos, croquet on the verdant green, and gingerbread clapboard Victorian cottages. You can stroll through the manicured gardens overlooking Lake Michigan, go sailing, take a watercolor class, or attend a summer concert at its renowned music hall.

A National Historic Landmark, the resort began in 1875 as part of the Methodist Chautauqua movement focused on the Victorian ideals of self-improvement and moral uplift. William Jennings Bryan, Helen Keller, and Booker T. Washington were among the speakers who came to this picturesque community on the northernmost shores of the Lower Peninsula.

Lately, however, Bay View has come to be known for another sort of anachronism—its historic bylaws preserving its Christian heritage. Non-Christians can visit Bay View or rent cottages, but they may not own or inherit property.

In June 2017, these bylaws were challenged by the Bay View Chautauqua Inclusiveness Group, which includes a group of Bay View residents, people denied membership, and those who sold their homes because their children couldn’t inherit them. The group filed a religious discrimination and civil rights lawsuit against the Bay View Association of the United Methodist Church before the U.S. District Court for the Western District of Michigan, drawing national and international attention and dividing the close-knit, private community.

Backed by the national American Civil Liberties Union (ACLU) and its Michigan affiliate, the Bay View Chautauqua Inclusiveness Group is expected to file a motion for judgment on the pleadings in April.

A Religious Test?

At the heart of the debate is the nature of Bay View itself. Is it an exempt, private religious organization, as its board of trustees argues, or is it a municipality governed by the federal Fair Housing Act of 1968?

The community’s strict membership policy has repercussions for residents who wish to leave their cottages to non-Christian or non-practicing Christian heirs, for potential buyers who cannot qualify for membership, and for potential sellers who have a limited pool of prospective buyers.

To own or to inherit property in Bay View, applicants must become members of the Bay View Association. In addition to the usual sorts of association fees and ability to finance a summer home, prospects must be “of good moral character” and “of Christian persuasion,” and must provide references, as well as a letter from a pastor attesting to church membership or attendance.

A personal identification with Christianity (culturally or spiritually) won’t cut it; applicants must provide documentation that they are “practicing Christians.”

“We have a situation here where people want to be members, but [do] not declare themselves Christians. This is not a new rule,” says Richard Chambers, who’s owned a cottage in Bay View for 18 years. “From its earliest beginnings, faith has been the underlying foundation.”

“No one is discriminating against anyone,” says Chambers. “Our association has activities that are open to anyone who chooses to visit. The only thing we require [to become a Bay View member to own property] is that you have to declare your faith in a statement.” In this way, argues Chambers, it’s no different than joining a church.

But Bay View is not a religious organization, argues civil rights attorney Sarah Prescott of Salvatore, Prescott & Porter PLLC, who is representing the plaintiffs. The lawsuit argues that Bay View is organized under the Summer Resort and Assembly Associations Act of 1889, which gives the association some governmental powers. Therefore, Bay View must abide by the laws that prohibit religious discrimination. The association cannot have both religious exemption and governmental powers, says Prescott.

“Our defendants are trying to be both a town and a religious organization at once. They are wrong to suggest that they are like a bunch of parade organizers in cases like Hurley,” Prescott says. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), the U.S. Supreme Court upheld the First Amendment right of parade organizers to exclude groups whose message they disagreed with.

“[The Bay View defendants] decide who owns homes in this community, what rules everyone must follow, what fines may be charged for failure to follow the rules, and if they want to deputize someone to assess a fine or take you to the nearest jail, they can,” says Prescott.

The Michigan chapter of the ACLU has consulted on the lawsuit. “It’s hard to imagine a more blatant violation of the First Amendment’s protection against religious discrimination than a Christians-only home ownership policy. This should be an open-and-shut case,” says Michael Steinberg, ACLU legal director in Michigan.

According to Steinberg, the Bay View lawsuit differs in a “stark way” from other well-publicized cases in which courts are being asked to consider if religious freedom is being used as a smokescreen for discrimination. “Unlike Masterpiece Cakeshop v. Colorado Civil Rights Commission, Bay View is a public entity, not a private one, like a bakery. [As a] public entity, Bay View is bound by the Constitution and cannot favor one religion over another, or religion over non-religion.”

Bay View Association attorney Michael Bogren and the association’s board of trustees declined to comment on this story.

A History of Housing Bylaws

What may be unique about Bay View is not that it has exclusionary bylaws, but that they’re still enforced.

“There are racial and religious covenants on many properties,” says Florence Roisman, a national authority on housing discrimination and a law professor at Indiana University.

“They were put on the properties as early as the 19th century, but became very common in the early part of the 20th century, particularly after the Supreme Court held that racial zoning ordinances were unconstitutional,” says Roisman, citing Buchanan v. Warley (1917) and several subsequent cases. “It’s fairly easy to remove these covenants from deeds, but most people don’t bother to do so.”

In Roisman’s reading of the Bay View lawsuit, “the religious restrictions seem to me plainly to violate the federal Fair Housing Act, most obviously 42 U.S.C. § 3604(c).” The provision prohibits making any statement “with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”

It’s difficult to trump the federal Fair Housing Act, says Roisman. “There’s a very limited exemption that’s basically to protect the First Amendment right to free exercise of religion, but it’s hard for me to imagine that such restrictions as these could meet the high bar of the Fair Housing Act exemption or the First Amendment itself.”

“They run this place for profit as a summer resort town. This isn't the Sisters of Mercy wanting to live together near the convent,” adds Prescott, the plaintiffs’ lawyer. “This place is filled with landlords who are fine having Jewish or atheist renters there all summer, if the price is right—they just want to hold ownership.”

Don Duquette, a Bay View member and a retired law professor at the University of Michigan who is one of the plaintiffs in the lawsuit, believes that Bay View’s historic affiliation with the United Methodist Church will not exempt it from federal housing laws. “The [church] does not provide any operational oversight or appoint members to the Bay View Association,” he says. In this way, Bay View is similar to other organizations that have historic ties to the church, such as hospitals, colleges, and retirement communities.

Not a Slam-Dunk Case

Walter Olson, a legal scholar and senior fellow at the CATO Institute, wonders if a successful lawsuit against the Bay View Association would result in a banal community devoid of distinctive character and faith identity.

Olson doesn’t think the plaintiff’s case for inclusion is slam dunk, either.

“The plaintiffs argue that deputizing a private religious community to enforce laws violates the Establishment Clause. It's not as open and shut as that, however, because courts have upheld many instances of such deputization,” says Olson.

People v. Van Tubbergen in 2002 was one such case, where a Michigan appeals court rejected the argument that it was unconstitutional to deputize Hope College, a Christian institution, with the power to arrest drunk driving offenders on public streets. “In other words, in Michigan it was not found that by accepting the role of deputy Hope was obliged to yield up its specifically religious governance structure, which, like Bay View’s, required that a controlling number of board members be of a certain faith,” Olson says.

What about allegations of violation against the federal Fair Housing Act? Olson says Bay View might offer in its defense 42 U.S.C. § 3607(a), which provides that:

Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.

“Plaintiffs may challenge whether this language covers Bay View; perhaps it will be argued that the association does not own or operate the dwellings for other than a commercial purpose,” says Olson. “And many courts have read Fair Housing Act exemptions narrowly, viewing the elimination of housing discrimination as a higher aim than the protection of religious association interests.”

“Certainly, Bay View is out of step with modern sentiment, and I can't predict to what extent the courts will tolerate that. I will say this, however: If the courts turn Bay View into just another secular homeowner's association, the result will be not more but less diversity overall in Michigan and in resort options.”

What Would Jesus Do?

At present, diversity at Bay View consists of practicing Christians who agree with the bylaws and practicing Christians who do not. For nearly a decade, the association has struggled to come up with a resolution, but could not reach the two-thirds majority required to overturn the bylaws.

The dispute, says Duquette, comes down to different views of Christianity: exclusion versus inclusion, privacy versus engagement.

“Some characterize this dispute as between Christians and secularists who wish to remove all religion from Bay View. This couldn't be further from the truth. Nearly all the members of the plaintiff group are Christians,” says Duquette. “But we believe that the message of Jesus Christ is a welcoming one.”

Even as people in the community have taken sides, Duquette still characterizes Bay View as “family.”