A federal appeals court in late August ruled that a Minnesota firm that videotapes weddings and other events may cite religious beliefs in refusing to serve LGBTQ people.
The 8th U.S. Circuit Court of Appeals ruled 2-1 in Telescope Media Group v. Lucero that the firm’s work is “expressive,” and thus protected by the First Amendment right to free speech.
The case came about after Carl and Angel Larsen, the owners of a videography company called Telescope Media in St. Cloud, sued in opposition to the Minnesota Human Rights Act, legislation that protects customers from businesses discriminating against them based on their race, religion, sex and sexual orientation, among other protected characteristics.
The owners asserted that due to their fundamentalist Christian beliefs, they could film weddings for opposite-sex couples only and would deny that same service to same-sex couples. A well-heeled Christian nationalist legal group, Alliance Defending Freedom (ADF), represented the Larsens in court.
Last year, the U.S. Supreme Court ruled in Masterpiece Cakeshop v. Colorado Civil Rights Commission that a state agency had engaged in religious discrimination when it fined a baker who refused to make wedding cakes for LGBTQ couples. But that opinion, authored by former Justice Anthony M. Kennedy, was narrow and did not craft a new right for religious business owners to discriminate on the basis of their faith.
By contrast, the Telescope ruling, written by Judge David Stras, an appointee of President Donald Trump, was much broader. Stras 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.’”
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.
Judge Jane Kelly dissented, noting that “caselaw has long recognized” 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 asserted that the case was really about commerce, not speech. She noted that the owners, through their company, sell a service to the public; and that the law is clear that once vendors offer their services to the public, they have no constitutional right to discriminate against their customers or employees. She also emphasized that the state’s interest in ensuring that no one suffers discrimination in public accommodations because of her/his sexual orientation was of the utmost importance.
Patrick Grubel, a legal fellow at Americans United, analyzed the ruling for AU’s “Wall of Separation” blog and observed, “This decision is yet another example of how extremist 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.”