This decision should have been easy; it should not have has to go to an appeals court.
Carl and Angel Larsen (above) operate the Telescope Media Group, a Minnesota videography company. In 2016, they claimed Minnesota’s anti-discrimination laws required them to make videos of same-sex marriages, which they say their religious beliefs oppose. They challenged the Minnesota Human Rights Act as unconstitutional. The relevant provisions state,
“…It is an unfair 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 because of . . . sexual orientation.
…It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service . . . to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person’s . . . sexual orientation . . . , unless the alleged refusal or discrimination is because of a legitimate business purpose…”
The Larsens told the lower court that they wanted to make films that promote their view of marriage as a “sacrificial covenant between one man and one woman.” Thus they will only film heterosexual weddings, 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.” They also, they said, intend to post and share these videos online, in order to “affect the cultural narrative regarding marriage.”
U.S. District Judge John Tunheim dismissed their case, comparing their stated mission of promoting marriage as a bond between one man and one woman was comparable to posting a sign that said “white applicants only.”
Bad opinion, bad logic, bad judge. The couple made clear that they will “gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification.” However, as ” Christians who believe that God has called them to use their talents and their company to . . . honor God,” the Larsons decline any requests for their services that they feel conflict with their religious beliefs, and so state in their promotional materials.
In a 2-1 decision, the three-judge panel of the Eighth Circuit reversed, ruling that the Larsons have a First Amendment right “to choose when to speak and what to say.”
Of course. While one may argue whether a cake is “speech” under the First Amendment, there is no persuasive argument that a video or film is not protected communication and speech by definition. The opinion cited the U.S. Supreme Court’s 1995 landmark decision in Hurley vs. Irish American Gay, Lesbian, and Bisexual Group of Boston, noting that 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.”
As with the various baker and wedding photo cases, I find the Larson’s conduct obnoxious, divisive and unnecessary. How does simply filming a wedding—I don’t care if it’s between a man and a musk-ox—constitute an endorsement, support, or a violation of their religious beliefs? It doesn’t. It can’t. Refusing to make a video of a wedding is an insult to any couple that requests it, and cruelly implies that they are less than worthy of association. Sure, the videographers have a right to withhold their services, but they are being jerks to do so. This is a Golden Rule matter. A law shouldn’t be necessary.
However, the Larsons should have the choice of whether to be good, ethical members of the community, fair and compassionate, and not be forced to act the way the State thinks they should act, even if the State happens to be correct, under threat of 90 days in jail and up to $25,000 in fines.
Naturally the Minnesota Attorney General couldn’t fathom the core Constitutional principle involved. You may remember him as the former co-head of a national political party that has been tipping toward totalitarianism of late: Keith Ellison, previously co-chair of the Democratic National Committee. Ellison fumed, saying that the decision “offended him as a human being”….
“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.”
Thus the question must be asked: is Ellison so dumb, so unqualified for his position, that he really believes this is what the decision says? My guess, having observed Ellison for years and found him to be a relentless agenda-driven partisan to whom facts and law mean little, I would guess that he made this statement without reading the opinion thoroughly, if at all. The ruling isn’t about discrimination, and it doesn’t encourage or enable discrimination. It isn’t even a freedom of religion case; this is mainstream First Amendment freedom of speech all the way.
A videography business isn’t a “public accommodation.” Nobody needs a particular professional videographer for a wedding or any other event. A professional videographer is an artist as well as a service-provider, and since the service includes expression and speech, it cannot be compelled.
Thought experiment: what if Germany had the U.S. Constitution in the 1930’s, with the current line of SCOTUS cases, including one that confirmed that a state can make it a crime for a “public accommodation” to refuse service based on political affiliation. (California has such a law.) Hitler, in this imaginary pre-war Germany, wants the brilliant director Leni Riefenstahl to film the upcoming 1936 Olympics. She refuses because, she says, he’s head of a party she despises.
Would the courts in this fictional Germany say she should be compelled to make her typical brilliant film making Hitler and the Nazis look like godlike heroes? No, they would not. She could not be forced to use the communicative nature of her art to express any thought or position she did not choose to. The issue, as in the Minnesota case, isn’t discrimination. It’s the right to free speech.
The national party Ellison helped corrupt and now represents on the state level no longer respects free speech when it gets in the way of its efforts to allow certain favored groups to trample the rights of others for their own benefit, including the bedrock American right to be a jerk.
By the way, I highly recommend reading the opinion by Judge Stras. It is interesting and well-reasoned.
Then you can explain it to Keith Ellison.