Court: Refusal to record same-sex wedding videos is protected

By Barbara L. Jones
bjones@minnlawyer.com

The latest Minnesota-based courtroom battle in the culture wars over same-sex marriage has been won by the side that wants to do business with the bride and groom, as long as they are of the opposite sex. The majority found that videos were protected speech.

The 8th U.S. Circuit Court of Appeals revived a lawsuit by Telescope Media Group, owned by Karl and Angel Larsen, who want to make wedding videos but only for opposite-sex marriages because same-sex marriages violate their religious beliefs. U.S. District Court Judge John Tunheim dismissed their lawsuit, but the 8th Circuit brought it back in an opinion written by Minnesota Judge David Stras. He was joined by Judge Bobby Shepherd, and Judge Jane Kelly concurred in part and dissented in part.

“Here, ‘the safe course’ for the Larsens would be to avoid the wedding-video business altogether. Yet this type of compelled self-censorship, a byproduct of regulating speech based on its content, unquestionably ‘dampens the vigor and limits the variety of public debate,” Stras wrote for the court.
The case is Telescope Media Group, et al. v. Rebecca Lucero, commissioner of the Minnesota Department of Human Rights, et al. The state is represented by the Office of the Attorney General, which was also a party. The department is considering legal options, said Taylor Putz, communications director.

After the decision, the MDHR issued a statement that said, “Minnesota is not in the business of creating second-class community members in our state. Time and again, Minnesotans have chosen love and inclusion in our communities in order to build a state where our laws lift up our beautiful and complex identities, not hold them down.”

The plaintiffs are represented by the Alliance Defending Freedom, a nonprofit headquartered in Scottsdale, Arizona. On its website it says, “If the government can force the Larsens to express messages that violate their beliefs, what’s to stop it from forcing you to violate your beliefs? On the other hand, if the Larsens are free to live and work according to their beliefs, that guarantees your freedom to do the same.”

Preliminary injunction likely

The plaintiffs seek injunctive relief preventing Minnesota from enforcing the Minnesota Human Rights Act (MHRA) against them. They argued that it is unconstitutional under the Free Speech Clause of the First Amendment for require them to make same-sex-wedding videos.

The defendants relied on Minn. Stat. § 363A.11, subdiv. 1(a)(1) and § 363A.17(3). Those sections of the MHRA prohibit discrimination in the use of public accommodation and prohibit the refusal to do business because of a person’s sexual orientation unless there is a legitimate business purpose.

“Minnesota reads these two provisions as requiring the Larsens to produce both opposite-sex and same-sex-wedding videos, or none at all. According to Minnesota, the Larsens’ duty does not end there. If the Larsens enter the wedding-video business, their videos must depict same- and opposite-sex weddings in an equally ‘positive’ light. (Cite omitted.) If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers ‘because of’ their sexual orientation,” Stras wrote.

The panel sent the case back down and instructed the District Court to “consider in the first instance whether the Larsens are entitled to a preliminary injunction, keeping in mind the principle that, “[w]hen a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.”

Standing

The court quickly disposed of the standing issue, determining that the plaintiffs had sustained an injury in fact even though they had not refused to make a video or been charged with violating the MHRA. “[A]ll a plaintiff must do at the motion-to-dismiss stage is allege ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder,’” the court said, relying on the 2014 Supreme Court decision in Susan B. Anthony List v. Driehaus. The court said such a threat exists.

Protected speech

The court then concluded that the plaintiffs’ videos are a form of speech that is entitled to First Amendment protection. The videos that the plaintiffs envision will be designed to affect public attitudes and behavior by depicting marriage as a divinely ordained covenant, the court said. “The videos themselves are, in a word, speech,” Stras wrote.

The Larsens, not the customers, will be in charge, the court explained. They intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control, the court said.

It does not matter that the videos are a for-profit enterprise, the court continued. “Other commercial and corporate entities, including utility companies and newspapers, have received First Amendment protection too,” the judge noted.

The court rejected the argument that the state is regulating conduct, not speech. Even if individual acts may be considered “conduct” and not speech, what matters is the activities come together to produce videos that are media for the communication of ideas. “Speech is not conduct just because the government says it is,” Stras said.

The state interferes with the plaintiffs’ speech by compelling them to speak favorably about same-sex marriage if they speak favorably about opposite-sex marriage and also by using the MHRA as a content-based regulation of free speech, the court said.

“To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the ‘cardinal constitutional command’ against compelled speech,” said the court, citing Janus v. Am. Fed’n of State, Ct., & Mun. Emps. Council 31.

Strict scrutiny

As compelling as the interest in preventing discrimination may be, the court continued, speech is treated differently under the First Amendment. The state did not satisfy the standard that the law must serve a compelling state interest. “[R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be,” Stras said.

The court rejected the state’s argument that only intermediate scrutiny should be applied because the regulation is really addressed to conduct and only incidentally to speech. But, the court repeated its conclusion that the videos are speech. “[O]ur holding leaves intact other applications of the MHRA that do not regulate speech based on its content or otherwise compel an individual to speak. But when, as here, Minnesota seeks to regulate speech itself as a public accommodation, it has gone too far under [case law] and its interest must give way to the demands of the First Amendment.”

The court also allowed the plaintiffs to proceed with their free-exercise claims because it is intertwined with the free-speech claim. It affirmed the dismissal of all other claims against the MHRA.

Dissent

Kelly said that the case should have been easily disposed of because “Although religious and philosophical objections to same-sex marriage are protected by the First Amendment, ‘such objections do not allow business owners … to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law,’”  citing Masterpiece Cakeshop v. Colo. Civil Rights Comm’n. The plaintiffs are not barred from communicating any message, only from operating a public accommodation that discriminates, the judge said.

Kelly warned about the future implications of the opinion. “By ruling that, under the Larsens’ allegations, the MHRA is subject to and fails strict scrutiny, the court carves out an exception [to the MHRA] of staggering breadth. Under its logic, any time that a state’s regulation of discriminatory conduct requires a person to provide services that ‘express’ something that they dislike, the law is invalid. That ruling cannot be easily limited.”

Kelly continued, “Nothing stops a business owner from using today’s decision to justify new forms of discrimination tomorrow. In this country’s long and difficult journey to combat all forms of discrimination, the court’s ruling represents a major step backward.”

Minnesota Human Rights Act

Minn. Stat. 363A.11

Subdivision 1. Full and equal enjoyment of public accommodations.
(a) It is an unfair discriminatory practice: to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of … sexual orientation.

Minn. Stat. 363A.17

It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service: to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person's …sexual orientation … unless the alleged refusal or discrimination is because of a legitimate business purpose.