Last week, the 8th U.S. Circuit Court of Appeals issued a chilling opinion in a case called Telescope Media Group v. Lucero that at a minimum seems dismissive of our entire body of anti-discrimination law and at worst twists the holdings of those cases beyond their accepted application. The court’s reasoning could empower many businesses to discriminate against customers because of who they are.
Some background: The Minnesota Human Rights Act, like countless anti-discrimination laws across the country, prohibits businesses in the state from discriminating against customers based on their race, religion, sex and sexual orientation, among other protected characteristics.
Carl and Angel Larsen, the owners of a videography company called Telescope Media in St. Cloud, sued state officials to demand an exemption from that law. They asserted that due to their fundamentalist Christian beliefs, they could only film weddings for opposite-sex couples and would deny that same service to same-sex couples. A well-heeled Religious Right legal group, Alliance Defending Freedom, represented the Larsens in court.
If this sounds familiar, it’s because dozens of similar cases have cropped up in recent years, including Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the U.S. Supreme Court decided a little over a year ago. But while Justice Anthony M. Kennedy crafted a narrow ruling that refrained from creating a new right for religious business owners to ignore the anti-discrimination laws that apply to everyone else, Judge David Stras, the Trump-appointed jurist who wrote the Telescope opinion, exercised no such restraint.
Building on recent Supreme Court decisions, the 8th Circuit panel ruled that the company’s business of creating videos is, “in a word, speech.” And because it is speech, the owners have a First Amendment right to turn away any customer whose equal treatment would imply a message with which the owners disagree – here, the validity of a marriage that is not between one man and one woman. Like a newspaper or a feature film, the court said, the wedding-video company cannot be “coerce[d]” into “promoting ‘ideas they find objectionable.’”
Breaking from established anti-discrimination precedent, the court also rejected the idea that the state’s interest in extinguishing discrimination in public commerce was strong enough to justify the law’s effect on the company’s speech. As Judge Jane Kelly noted in her dissent, however, “caselaw has long recognized” just the opposite: that the First Amendment “‘do[es] not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’”
Kelly ably explained that this case was really about commerce, not speech. The Larsens, through their company, sell a service to the public. And the law is clear that once a person opens up their services to the public, they do not have a constitutional right to discriminate against their customers or employees. She also highlighted that the state’s interest in ensuring that no one suffers discrimination at the hands of public accommodations because of their sexual orientation was of utmost importance.
Though this case dealt only with a wedding-video company, the ruling may cause extensive harm in the states governed by the 8th Circuit. The logic would apply to any business whose service is “expressive,” and, as the dissent warns, “‘[i]t is possible to find some kernel of expression in almost every activity a person undertakes.’” What happens next may have implications for the rest of the country.
This decision is yet another example of how Religious Right legal groups – abetted by an increasingly receptive federal judiciary – are using notions of speech and religion to harm others, deprive them of full dignity and participation in public life and lay waste to our constitutional tradition of protecting vulnerable groups from discrimination.