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Posts Tagged ‘Minnesota Department of Human Rights’

8th Circuit Revives Videographer’s 1st Amendment Claim Against Having to Make Same-Sex Wedding Videos

Posted on: August 29th, 2019 by Art Leonard No Comments

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?

Federal Court Ruling on “Religious Exemptions” from Anti-Discrimination Laws on Same-Sex Weddings May Preview Supreme Court Decision

Posted on: September 25th, 2017 by Art Leonard No Comments

 

Chief Judge John R. Tunheim of the U.S. District Court in Minnesota ruled in Telescope Media Group v. Lindsey, 2017 WL 4179899, 2017 U.S. Dist. LEXIS 153014 (D. Minn., Sept. 20, 2017), that for-profit businesses do not enjoy a constitutional right to refuse to provide their services for same-sex weddings on the same basis that they provide services for different-sex weddings.  Turning back a case brought by the anti-gay religious litigation organization, Alliance Defending Freedom (ADF), Judge Tunheim issued a comprehensive ruling that may provide a preview of what the U.S. Supreme Court will say in the Masterpiece Cakeshop case from Colorado during its forthcoming term, at least regarding the 1st Amendment issues common to both of the cases.

ADF immediately announced that it will appeal the court’s ruling to the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, Missouri.

Judge Tunheim’s ruling is particularly significant because it is the first by a federal court to address this issue. Since 2013, several state appellate courts have ruling against such exemptions from compliance with state anti-discrimination laws, rejecting appeals by defendants who sought to overturn rulings against them by state human rights agencies in cases involving wedding photographers, florists, bakers, and wedding venues.  In this case, however, a videography business that claimed to be planning to expand into the wedding video business sought an advance declaration from the federal court that they would be constitutionally protected if they were threatened with prosecution under Minnesota’s ban on public accommodations discrimination because of sexual orientation.

This issue has previously avoided litigation in the federal courts because there is no federal law prohibiting discrimination because of sex or sexual orientation by businesses providing goods or services to the public. When “sex” was added as a prohibited ground of discrimination through a floor amendment to the pending Civil Rights Act in Congress in 1964, the amendment was directed solely to the employment discrimination section of the bill.  The public accommodations section was not amended to include “sex”.  The Equality Act bill first introduced in Congress two years ago would add both “sex” and “sexual orientation” to that part of the Civil Rights Act.

The state rulings all came in cases where businesses were being prosecuted under a state law. Because these are local businesses operating in the same jurisdiction where the plaintiffs live, there was no basis for the defendants to remove them to federal court, since the federal constitutional arguments were raised as defenses, and federal “removal” jurisdiction is based either on diversity of citizenship of the parties or a federal question being raised by the plaintiff in the complaint.

This case was brought by ADF on behalf of Carl and Angel Larsen and their company, Telescope Media Group, which specializes in producing videos for a fee. They are interested in expanding their business to include wedding videos.  They strongly oppose same-sex marriage, and one of their goals in expanding their business is to propagate their view that only a marriage between a man and a woman is appropriate by including in every contract they make a provision by which the couple purchasing the video gives Telescope Media the right to provide public access to the video through their website and postings on social media.  Thus, their mission in expanding into the wedding video business is not just to make money but also to promote different-sex marriage, which they consider to be an institution that is endangered by social changes such as the marriage equality movement.  They also want to be able to include a notice on their website that they do not provide video services for same-sex marriages.

The Minnesota public accommodations law was amended in 1993 to add “sexual orientation” to the prohibited grounds of discrimination. After Minnesota’s legislature enacted a marriage equality law in 2013, the Minnesota Department of Human Rights (MDHR) published an “interpretive guidance” for businesses covered by the law, stating clearly that the state law “does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage.”  The guidance makes clear that people denied services by such businesses could file discrimination charges with the agency, which could result in penalties for violation of the law.

ADF alleged in its complaint that Telescope Media has already been contacted by at least one same-sex couple seeking video services for their wedding, but they were told that Telescope Media does not do wedding videos. This is legal, since they are not discriminating between same-sex and different-sex couples.  They claim they want to get into this potentially lucrative business, but are concerned about exposing themselves to legal liability, and seek the shelter of a declaratory judgment that they are privileged to turn down same-sex wedding business.

ADF came up with seven legal theories in support of their claim to constitutional protection, based on the 1st and 14th Amendments. They claimed that any legal requirement that they must provide services to same-sex couples would violate their rights to freedom of speech, expressive association, free exercise of religion, equal protection of the laws, and both procedural and substantive due process.  Their freedom of speech argument subdivides into the freedom to advertise their wedding video business as available only to different-sex couples, and their freedom not to be compelled to produce wedding videos that celebrate same-sex marriages and thus communicate a message of approval that contradicts their religious-inspired views.  The court rejected their argument that under the Minnesota law they could be compelled to display publicly any same-sex marriage videos that they might produce.

Judge Tunheim carefully and systematically rejected all of their arguments, citing extensively to U.S. Supreme Court decisions dealing with comparable situations. Before tackling the substantive issues, he had to deal with whether this lawsuit was an attempt to get an advisory opinion, which is beyond the jurisdiction of federal courts.  In this case, the fact that the MDHR has announced in advance its view that declining same-sex marriage business would violate the Human Rights Act helped to convince the court that prosecution of Telescope Media if it implemented its business plan was not merely theoretical.  If they have a constitutional right, the existence of the law and the agency’s intention to enforce it back their claim that they are being deterred from potentially exercising a constitutional right by expanding their business.  Thus, Tunheim rejected the argument by the state’s attorneys that the court had no jurisdiction over the case, since there is a real “case or controversy,” not a purely hypothetical case.

Turning to the merits, however, Judge Tunheim agreed with the growing body of state court appellate decisions that have rejected these constitutional arguments, for all the reasons that have been cited in those cases.

The court found that the MDHR is not a content-based regulation of speech, does not target religion, is subject only to intermediate scrutiny under 1st and 14th Amendment principles, and is sustained by the state’s important interest in preventing discrimination by businesses providing goods and services to the public.

Judge Tunheim rejected ADF’s argument that requiring a business to make wedding videos for same-sex couples if they make them for different-sex couples would violate the prohibition against government-compelled speech.   “Where a business provides a ‘conduit’ that allows others to pay for speech,” as in the case where the business makes an expressive product like a video for monetary compensation, “strict scrutiny is usually unnecessary because there is ‘little risk’ of compelled speech or that the public will attribute the message to that of the speaker,” he wrote.  “Further, courts generally do not find compelled speech where the speaker may easily disclaim the message of its customers.”

“The law does not compel the Larsens to speak a specific government message,” he continued, “unlike the message on the license plate in Wooley or the words of the pledge of allegiance in Barnette,” referring to cases where the Supreme Court held that a state cannot compel a person to display a political message on his license plate or to speak the flag salute against his will.  “The law does not dictate how the Larsens carry out any of their creative decisions regarding filming and editing.  While the law does incidentally require wedding videographers to make videos they might not want to make, the concerns undergirding the application of the compelled speech doctrine to instances of hosting another’s message are immaterial.”

At the heart of his analysis was the simple proposition that “speech-for-hire is commonly understood to reflect the views of the customer. Weddings are expressive events showcasing the messages and preference of the people getting married and attendees, who do things like speak, dress, and decorate in certain ways.  A video of a wedding depicts this expressive event, and while videographers may exercise creative license to fashion such a video, the videographer is a ‘conduit’ for communication of the speech and expression taking place at the wedding.”

Further, he pointed out, the Larsens can always post an announcement on their website stating that they are complying with the law by making videos of same-sex weddings, but that they are opposed to same-sex marriage. This sets their case apart from Hurley, the Supreme Court case holding that Massachusetts could not compel parade organizers to include a gay group if the organizers did not want to send a gay rights message through their parade.  Finally, he pointed out, making wedding videos for same-sex couples would not impede the Larsens’ ability to propagate their own message.  They would not be required to exhibit these videos on their website or place them on social media, as the court found that the MDHR would not be interpreted to impose such a requirement.

The court held that the ability of the MDHR to decide whom to prosecute under the statute did not destroy its content-neutral character, and that requiring Telescope Media to afford equal access to its services for same-sex weddings did not violate its right of expressive association. Indeed, ADF’s argument on this issue would undermine all anti-discrimination laws, were a court to accept the argument that every interaction with a potential customer could be avoided on grounds of “forced association.”  Historically-mind people may recall that then-Professor Robert Bork opposed the public accommodations provisions of the proposed Civil Rights Act in 1964 by describing the proposition that forcing businesses to provide services to people of color as one of “surpassing ugliness” because it would force people into unwanted personal associations.  These sorts of views led to the defeat of Bork’s nomination by President Reagan to the Supreme Court in 1987.

Because the judge found the Minnesota Human Rights Act to be content-neutral as far as religion goes, it easily rejected the idea that evenhanded application of the law would constitute a violation of free exercise, and it similarly rejected the argument that the law imposed an “unconstitutional condition” on the Larsen’s ability to conduct business in Minnesota. Because the law applied to all videography businesses, there was no viable Equal Protection claim.  Similarly, there was no viable procedural due process claim since the law’s prohibition was not unduly vague, and its use of the phrase “legitimate business purposes” to describe circumstances under which a business could refuse to provide a service to a consumer had a well-established legal meaning that would not leave reasonable people guessing as to the scope of their legal obligations.

Finally, having found that the law did not unconstitutionally abridge any of the Larsen’s substantive constitutional rights, the court easily concluded that it did not violate the 14th Amendment’s substantive due process protection for individual liberty. The court found that there is no recognized “fundamental right to work or operate a business free from regulations that one dislikes.  Absent some authority to the contrary, the Court declines to expand the reach of substantive due process to these facts, as the doctrine is ‘reserved for truly egregious and extraordinary cases,’” citing several U.S. Supreme Court decisions limiting the scope of substantive due process doctrine.

Judge Tunheim found that the state’s attorneys had “met their burden to demonstrate that Counts I-VII in the Amended Complaint all fail as a matter of law,” so there is nothing left to litigate and the court granted the state’s motion to dismiss the complaint.

ADF’s appeal to the 8th Circuit is unlikely to result in a quick decision, because the Supreme Court will soon schedule oral arguments in the Masterpiece Cakeshop case, which presents many of the same issues.  This is an appeal of a ruling by the Colorado Court of Appeals that the Cakeshop and its proprietor, Jack Philips, violated the state’s human rights law by refusing to make a wedding cake for a same-sex couple because of his religious objections to same-sex marriages.  The hearing will probably take place later this year, with a decision expected in the spring of 2018.

The 8th Circuit may decide to follow the same procedure it followed in 2014 and 2015 when it received state appeals from district court marriage equality rulings while a similar case from the 6th Circuit was pending in the Supreme Court. The 8th Circuit put the appeals “on hold” to see what the Supreme Court would do, and then after the Obergefell ruling it simply followed the Supreme Court’s lead, as it would be required to do by precedent.

However, because ADF has alleged various legal theories that were not advanced in the Masterpiece Cakeshop case, a Supreme Court ruling in that case may not definitively answer all the questions raised in Telescope Media, so it is possible that the 8th Circuit will find this case different enough to justify going forward without waiting for the Supreme Court’s ruling.