A three-judge panel of the U.S. Court of Appeals for the 8th Circuit ruled by a vote of 2-1 on August 23 that a commercial videographer could assert a 1st Amendment claim that it was privileged to refuse to make wedding videos for same-sex couples, as an exemption from compliance with Minnesota’s Human Rights Act, which expressly forbids public accommodations from discrimination because of a customer’s sexual orientation. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320, 2019 WL 3979621. The court reversed a decision by U.S. District Judge John R. Tunheim, which had dismissed the videographer’s suit seeking a declaratory judgment and injunctive relief against Minnesota’s Department of Human Rights. See Telescope Media Group v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017).
Circuit Judge David Stras, an appointee of President Donald Trump, wrote for the majority, which included Circuit Judge Bobby Shepard, an appointee of President George W. Bush. The dissent was by Circuit Judge Jane Kelly, who was appointed by President Barack Obama, and is the only Democratic appointee now sitting on the 8th Circuit in either an active or senior capacity. District Judge Tunheim was appointed by President Bill Clinton.
Carl and Angel Larsen, who make commercial videos under the corporate name of Telescope Media Group, decided they wanted to expand their business into wedding videos, but because of their religious beliefs, they did not want to get into this line of work if they would be required to make videos for same-sex weddings. Anticipating that a refusal to make such videos would bring them into conflict with Minnesota’s Human Rights Law, the filed an action in federal district court seeking a ruling that they had a 1st Amendment right to refuse such business. They argued that making wedding videos is an expressive activity protected by the Free Speech Clause, and that, although the Supreme Court has ruled that people are not excused from complying with neutral state laws of general application based on their religious beliefs, there was an argument that when a religious free exercise claim is intermingled with a claim based on another constitutional right (in this instance, free speech), the state may be required to accommodate the person claiming constitutional protection against enforcement of the state law.
Judge Tunheim rejected their constitutional arguments, dismissing their lawsuit, and they appealed to the 8th Circuit. Their case presents a parallel to one of the earliest appellate rulings rejecting a constitutional exemption from complying with a state public accommodations law on similar facts: Elane Photography, LLC v. Willock, 309 P. 3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (2014). In that case, the New Mexico Supreme Court ruled that a commercial wedding photographer who refused to make a photo album for a lesbian couple celebrating their commitment ceremony did not enjoy a 1st Amendment free speech or free exercise exemption from a state law banning sexual orientation discrimination. That court also rejected the photographer’s claim under New Mexico’s Religious Freedom Restoration Act, finding that complying with the state’s anti-discrimination law would not substantially burden the photographer’s freedom of religion. The U.S. Supreme Court denied Elane Photography’s petition to review the New Mexico court’s ruling.
Judge Stras’s opinion based its conclusion on a conflation of the Larsens’ business with the film studies that make movies for public exhibition. During oral argument, it was reported, the Larsen’s activities in making a video were likened to the work of prominent film producers/directors like Steven Spielberg. This was a specious comparison, not because Spielberg is a great filmmaker, but because the Larsen’s do not produce feature films or documentaries aimed at a public market, in which the content of the film is the speech of the filmmaker. Rather, they make films for hire, in order to communicate the message of the customer who hires them.
Stras wrote: “The Larsens . . . use their ‘unique skills to identify and tell compelling stories through video,’ including commercials, short films and live-event productions. They exercise creative control over the videos they produce and make ‘editorial judgments’ about ‘what events to take on, what video content to use, what audio content to use, what text to use . . ., the order in which to present content, whether to use voiceovers.” In other words, they exercise their professional judgment to make the films ordered by their customers, but the customers who are paying to have the films made ultimately determine what the message of the film will be. The Larsens’ role is to translate that message into an effect filmic presentation.
In describing their contemplated move into making wedding videos, they want these videos to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy . . . the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.”
“The Larsens believe that the videos, which they intend to post and share online, will allow them to reach ‘a broader audience to achieve maximum cultural impact’ and ‘affect the cultural narrative regarding marriage.’” Presumably, they hoped to tap into the burgeoning on-line phenomenon of shared wedding videos, which seem to have a considerable audience. But their representation by Alliance Defending Freedom suggests an ulterior motive, that the Larsens have volunteered (or were recruited) to be plaintiffs as part of ADF’s strategy to get a case to the Supreme Court in hopes of broadening the rights of religious business owners to avoid complying with anti-discrimination laws, and perhaps even getting the Court to overrule its precedents denying religious free exercise exemptions from anti-discrimination laws, while at the same time creating a constitutional wedge issue for businesses whose goods or services might be characterized as “expressive.”
Even though the Larsens do not presently make wedding videos, and they do not claim that they have ever been approached to make a video of a same-sex wedding or threatened with prosecution for refusing to do so, the court first determined that they have standing to seek their declaratory judgment, because when the proposition was presented to officials of the Minnesota Department of Human Rights, they made clear that a refusal to provide videography services to same-sex couples would be considered a violation of the state’s anti-discrimination law. Thus, the Larsens claimed to the satisfaction of the 8th Circuit panel that they faced a credible threat of prosecution and had standing to bring the case.
Turning to the merits, Stras wrote, “The Larsens’ videos are a form of speech that is entitled to First Amendment protection. . . although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to ‘affect public attitudes and behavior.’ According to their complaint, they will tell ‘healthy stories of sacrificial love and commitment between a man and a woman,’ depicting marriage as a divinely ordained covenant, and oppose the ‘current cultural narratives about marriage with which they disagree.’ By design, they will serve as a ‘medium for the communication of ideas’ about marriage. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial ‘editorial control and judgment.’” He concluded, “The videos themselves are, in a word, speech.”
Stras insisted that applying the Minnesota Human Rights Act to the Larsens’ business “is at odds with the ‘cardinal constitutional command’ against compelled speech. The Larsens to not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make.”
Stras insisted that this case fell into line with various U.S. Supreme Court precedents blocking the government from compelling a private actor to express a message they don’t want to express, citing, among other cases, Boy Scouts of America v. Dale, where the Court recognized the Scouts’ 1st Amendment right to ban gay men from serving as volunteer leaders of Scout troops. In that case, the Court said that requiring the Scouts to let out gay James Dale be an assistant scoutmaster would be compelling them to communicate a message of approval for homosexuality. The ruling in that case was by a vote of 5-4, overruling a 4-3 decision by the New Jersey Supreme Court. Stras also placed great weight on the Supreme Court’s ruling in Hurley v. GLIB, holding that Massachusetts could not compel the Catholic veterans association that ran Boston’s St. Patrick’s Day Parade to include a gay Irish organization marching with a banner proclaiming their identity, because that would be forcing a message on to the parade that the organizers did not want to communicate.
The consequence of Stras’s analysis was not only that the Larsens can assert their free speech claim, but that the court must subject the application of the MHRA to strict scrutiny, placing the burden on the state to prove that requiring the Larsens to made same-sex wedding videos is necessary to fulfill a compelling government interest.
The court also accepted the Larsens’ argument that they should be allowed to assert a free exercise of religion claim “because it is intertwined with their free speech claim,” constituting a so-called “hybrid rights claim.” The Supreme Court has mentioned that possibility in some cases, although it remains more theoretical than precedential at this point because most legal analysts have considered these mentions as not part of the holdings in the opinions where they appear. But Stras pointed out two 8th Circuit decisions where that court has used the hybrid rights theory, making it fair game for litigation within the circuit. The Supreme Court had articulated it as a possible exception to the general rule in Employment Discrimination v. Smith, speculating that had the plaintiff been able to claim a violation of some other constitutional right in addition to free exercise of religion, he might have a valid claim. But Stras insisted that the Court’s comments actually related to the holdings in some prior cases. However, he noted, “it is not at all clear that the hybrid-rights doctrine will make any real difference in the end” because the Court was already holding that the Larsens’ free speech claim “requires the application of strict scrutiny.”
The court did reject the Larsens’ alternative theories of freedom of association and equal protection. The former claim, if recognized, would render anti-discrimination laws virtually unenforceable, and the latter defeated by the general application of the MHRA, which did not on its face single out any particular group for disfavored treatment. The court also rejected the Larsens’ argument that the law was unconstitutionally vague, or imposed unconstitutional conditions upon the operation of a business in the state.
The court sent the case back to the district with directions to “consider in the first instance whether the Larsens are entitled to a preliminary injunction, keeping in mind the principle that ‘when 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.”
Judge Kelly’s dissent was several pages longer than the majority opinion. “No court has ever afforded ‘affirmative constitutional protections’ to private discrimination,” she wrote. “Indeed, caselaw has long recognized that generally applicable laws like Minnesota’s may limit the First Amendment rights of an individual in his capacity as the owner of a business serving the public.” On this point, she cited Justice Anthony Kennedy’s opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), in which the reluctant baker had refused to make a wedding cake for a same-sex couple. In that opinion, Kennedy acknowledged that religious and philosophical objects to same-sex marriage enjoy First Amendment protection, but “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.” Judge Kelley observed, “That well-established principle should have easily disposed of this case.”
She contested Judge Stras’s attempt to “recharacterize Minnesota’s law as a content-based regulation of speech.” She argued that the law does not compel the Larsens to communicate any particular message about marriage. “What they cannot do,” she wrote, “is to operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake,” she continued, “that is what today’s decision affords them license to do.” She asserted that the conduct in which the Larsens wish to engage if they expand into the wedding video business would involve denying services based on the sexual orientation of customers. “That the service the Larsens want to make available to the public is expressive does not transform Minnesota’s law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation.” The rest of her opinion takes much inspiration from Justice Ruth Bader Ginsburg’s dissent from the Court’s holding in Masterpiece.
Pointing to an earlier ruling, she wrote, “The Supreme Court has already health that the MHRA is constitutional, in the process rejecting many of the same arguments that the court adopts today. Just recently, it reaffirmed that, although ‘religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’ The Supreme Court is free to revise or overturn its precedents,” she continued. “We are not. Rather than disturb bedrock principles of law, I would affirm the district court’s order in full.”
The state can seek review of this decision by the full bench of the 8th Circuit, but that circuit has an overwhelmingly Republican/conservative tilt at present. Of the eleven active judges, only one, Judge Kelly, was appointed by a Democratic president. Trump has managed to place four judges on the court, where all but one of the other judges was appointed by George W. Bush, with the senior-most of the active judges having been appointed by the first President Bush. Clinton’s appointees have all died or retired. Perhaps the state should apply directly to the Supreme Court for review, but who is to say that Justice Kennedy’s comments, relied upon by Judge Kelly, would find majority support on the Court now that Neil Gorsuch has replaced Kennedy?