UPDATES & ANALYSIS

Appeals court sends wedding videographers’ case to trial on question of discrimination against same-sex couples

by Rox Laird | August 27, 2019

A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled 2-1 on Aug. 23 that Minneapolis filmmakers have a First Amendment right to “choose when to speak and what to say,” and should be allowed to proceed to trial on their claim that refusing to videotape weddings of same-sex couples does not violate the Minnesota Human Rights Act.

The majority opinion, written by Judge David Stras of Minneapolis and joined by Judge Bobby Shepherd of Arkansas, agreed with the plaintiffs’ claim that their wedding videos are a form of free expression protected by the First Amendment, and that Minnesota’s equal-rights statute interferes with their rights by regulating the content of that speech and by requiring that the videos be equally favorable to opposite-sex couples and same-sex couples.

Judge Jane Kelly of Cedar Rapids dissented, arguing that the plaintiffs are free to produce and sell films that express their views on any subject, including marriage, but when they offer their wedding-video services to the public, that amounts to a public accommodation and they must abide by Minnesota’s human-rights act.

The Eighth Circuit Court of Appeals based in St. Louis has jurisdiction over seven Midwest states, including Iowa. Iowa Attorney General Tom Miller signed onto a friend-of-the-court brief filed by 18 states in support of the defendant-appellants Minnesota Department of Human Rights and attorney general of Minnesota.

Carl and Angel Larsen own and operate Telescope Media Group that creates videos for commercials, short films, and live events, but as Christians they decline to provide services for anything that contradicts “biblical truth,” including their view that marriage is only “between one man and one woman.” Thus, they refuse to do videos of same-sex weddings.

The state of Minnesota argues that, under the Minnesota Human Rights Act (MHRA), it is a 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” on the basis of sexual orientation.

As applied in this case, the Eighth Circuit majority said, the statute means Larsens must produce wedding videos for both opposite-sex couples and same-sex couples, or none at all. Moreover, the court said, based on the state’s arguments, the Larsens’ wedding videos must depict same-sex weddings and opposite-sex weddings “in an equally ‘positive’ light.”

The majority said that raises two constitutional red flags.

“Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways,” Straus wrote. “First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech.”

That, Straus wrote, “is at odds with the U.S. Supreme Court’s ‘cardinal constitutional command’ against compelled speech.”

On remand, the trial court must judge the constitutionality of Minnesota’s application of its human-rights statute in this case using the legal standard of strict scrutiny. “Laws that compel speech or regulate it based on its content are subject to strict scrutiny,” the Eighth Circuit majority said, which will require Minnesota to prove that the application of the human-rights act to the Larsens is “narrowly tailored to serve a compelling state interest.”

The U.S. Supreme Court has said that antidiscrimination laws are well within the power of the states when they have reason to believe a group is the target of discrimination, the majority said, and “we have little doubt that Minnesota had powerful reasons for extending the MHRA to protect its citizens against sexual-orientation discrimination.”

“But that is not the point,” Stras wrote. “Even antidiscrimination laws, as critically important as they are, must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment.”

In her dissent, however, Kelly said the majority went too far.

“By ruling that, under the Larsens’ allegations, the MHRA is subject to and fails strict scrutiny, the court carves out an exception 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.”

While videography and other visual arts are easily seen as forms of expression, Kelly said, “what about bakers, fashion designers, florists, graphic designers, tattoo artists, calligraphers, jewelers, chefs, tailors, or musicians? Are all of those businesses allowed to refuse service to gays and lesbians whenever doing so would conflict with the business owner’s personal religious or philosophical beliefs?”

The majority opinion does not answer that, Kelly wrote, and it “invites a flood of litigation that will require courts to grapple with difficult questions about whether this or that service is sufficiently creative or expressive to merit a similar exemption.”