ST. LOUIS (CN) – The Eighth Circuit paved the way Friday for two Christian videographers to subvert a Minnesota nondiscrimination law that would make them film gay weddings.
Carl and Angel Larsen are the husband-and-wife team behind Telescope Media Group. Though they challenged the Minnesota Human Rights Act as unconstitutional, U.S. District Judge John Tunheim in Minneapolis dismissed their case after finding that their professional policy of promoting marriage as a bond between one man and one woman was akin to posting a sign that said “white applicants only.”
Reversing Friday, a divided three-judge panel of the Eighth Circuit emphasized that the Larsens have a First Amendment right “to choose when to speak and what to say.”
“Even antidiscrimination laws, as critically important as they are, must yield to the Constitution,” U.S. Circuit Judge David Stras wrote for the majority. “And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment.”
Stras cited the U.S. Supreme Court’s 1995 landmark decision in Hurley vs. Irish American Gay, Lesbian, and Bisexual Group of Boston, which held that private organizations, even if they were planning on and had permits for a public demonstration, were permitted to exclude groups if those groups presented a message contrary to the one the organizing group wanted to convey.
“In short, the court drew the line exactly where the Larsens ask us to here: to prevent the government from requiring their speech to serve as a public accommodation for others,” Stras concluded.
The Alliance Defending Freedom, which is representing the plaintiffs, lauded the decision out of St. Louis.
“This is a significant win. The government shouldn’t threaten filmmakers with fines and jail time to force them to create films that violate their beliefs,” ADF senior counsel Jeremy Tedesco said in a statement. “Carl and Angel work with all people; they just don’t create films promoting all messages. That’s why we’re pleased that the 8th Circuit has affirmed that the Larsens’ films are fully protected speech and that the state lacks a compelling interest to force them to express messages through their films that violate their deeply held convictions.”
Minnesota Attorney General Keith Ellison blasted the holding.
“This split decision today marks a shocking reversal of Minnesota’s evolution toward equality for LGBTQ people — with consequences for the entire country,” Ellison said in a statement. “A ruling that lets a business discriminate against LGBTQ folks today would let it discriminate on the basis of religion, race, gender, ability, or any other category it chooses tomorrow. The decision smacks of other dark moments in our nation’s history when courts have infamously upheld discrimination.”
Added that the decision offended him as a human being, Ellison vowed as state attorney general to “respond in the strongest and most strategic way possible to maximize human rights and dignity for LGBTQ people and for everyone — no exceptions.”
U.S. Circuit Judge Jane Kelley wrote in dissent Friday that her colleagues’ ruling marks the first time a court has “afforded ‘affirmative constitutional protections to private discrimination.”
While the First Amendment does protect religious and philosophical objections to same-sex marriage, Kelley said that right does not entitle business owners to deny protected personals equal access to goods and services.
“Instead, the court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree,” Kelly wrote. “Neither is true. The Larsens remain free to communicate any message they desire — about same-sex marriage or any other topic — or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.”
The Larsens claimed in their 2016 complaint that Minnesota’s law could put them behind bars for 90 days and saddle them with up to $25,000 in fines for refusing to film gay nuptials.
About four months before the federal appeals court heard oral arguments in the case, the U.S. Supreme Court ruled 7-2 in favor of Colorado cake baker Jack Phillips who did not want to make a cake for a gay couple.
The court’s narrow ruling focused on whether the Colorado Civil Rights Commission evinced bias toward Phillips in its decision and avoided the underlying issue in both the Colorado and Minnesota cases: whether a business can refuse to serve gay and lesbian customers.
U.S. Circuit Judge Bobby Shepherd joined the Eighth Circuit majority.