By: Cat Ulrich, Volume 104 Staff Member
Minnesota has a long tradition of protecting minorities from discrimination, including those in the LGBTQ+ community. One of the most important tools Minnesota has to protect against discrimination is the Minnesota Human Rights Act (MHRA). MHRA states that it is the public policy of the state that persons should be free from discrimination in employment, housing, public accommodations, public services and education because of “race, color, creed, religion, national origin, sex, marital status, disability, status with regard to public assistance, sexual orientation, and age.” The MHRA has recently been undermined by a decision from the Eight Circuit, a decision which broadly extends First Amendment protections to a Christian-based company who refused to make wedding videos for same-sex couples. The Eight Circuit’s decision is a win for religious freedom activists. However, this decision ignores Supreme Court precedent, directly contradicts recent Supreme Court guidance, and has broad implications going forward.
I. MAJORITY HOLDING REGARDING THE FREE SPEECH CLAUSE: CREATING WEDDING VIDEOS FOR PROFIT IS A FORM OF EXPRESSION
Telescope Media Group (TMG) is a company operated by Carl and Angel Larson. TMG produces videos and wanted to expand into the wedding video business, however, as both the Larsen’s identify as Christians, they wanted to make wedding videos that promoted their view of marriage as between a man and a woman. Minnesota stated that TMG’s desire to produce opposite-sex wedding videos only is in violation of two provisions of the MHRA. The Larsen’s argued that, among other claims, the MHRA’s requirement that they make same-sex wedding videos violates the Free Speech Clause of the First Amendment. The majority agreed.
Writing for the majority, Judge Stras first held that wedding videos are a form of speech, comparing them to motion pictures. Wedding videos, while not feature films, convey a message of “healthy stories of sacrificial love and commitment between a man and a woman,” a message designed to “affect public attitudes and behavior.” The Larsens are similar to film makers even if their customers have some say over the finished product because the Larsens “retain ultimate editorial judgment and control”. The court held that First Amendment protections are not waived simply because TMG is making a profit off of the wedding videos, indeed feature films make profits. The court rejected Minnesota’s position that the MHRA regulates the Larsens’ conduct rather than speech, stating that if the court were to uphold Minnesota’s reasoning it would lead to the regulation of all types of protected speech such as painting because painting involves the physical movement of a brush.
The court held that: (1) MHRA interferes with free speech because it compels the Larsens to convey positive messages of same-sex marriage; and (2) the MHRA is a content-based regulation of speech. The court applied a strict scrutiny test, found that while antidiscrimination laws are critically important they “must yield to the Constitution.” Lastly, the court rejected Minnesota’s claim that intermediate scrutiny should apply because the MHRA regulates conduct and in the course of that regulation, incidentally burdens speech, again reiterating that making the videos themselves is speech. The court remanded the Larsens’ Free Speech Claim and Free Exercise claim to the district court.
II. JUDGE KELLY’S DISSENT: WHERE THE MAJORITY WENT VERY WRONG
Judge Kelly began her dissent claiming the case should have been dismissed based on the well-established principle: although religious and philosophical objections to same-sex marriage are protected by the First Amendment “such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodation law.”
Judge Kelly stated that a wedding video is not the expression of the Larsens because it reflects the view of the couple getting married, not the view of the videographer. Thus, TMG acts as a “conduit of speech” for the couple. Judge Kelly dispelled of the comparison of the Larsens to independent film makers because “Steven Spielberg is not a public accommodation, he does not make his filmmaking services generally available to the public” like TMG intends to do.
Judge Kelly conceded that the Larsens service is in some ways expressive but there is some form of expression in almost any activity a person undertakes. “Conduct does not become protected speech simply because the person is engaging in the conduct intends to express an idea.” Therefore, restrictions that have an incidental effect on expression, as the MHRA does here, are subject to intermediate scrutiny. This would not, as the majority warns, allow the government to regulate protected speech because the Larsens are free to use their talents to create films about marriage that express their views but what they cannot do is offer their wedding video services to the public.
Lastly, Judge Kelly argued that even if strict scrutiny applies to the MHRA, it passes this higher standard because the Supreme Court has already held that the MHRA is constitutional. Judge Kelly stated that the purpose of antidiscrimination statutes is not to ensure that minorities can access some public accommodations but that they can access all goods and services offered to the public because discrimination is about the “humiliation, frustration and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public . . . .” The MHRA is narrowly tailored to eradicate discrimination and targets only conduct, not speech. Thus, the MHRA survives any level of scrutiny.
Judge Kelly held that the majority’s opinion “carves out an exception [to the MHRA] of staggering breadth.” The majority’s logic states that any time a state regulates discriminatory conduct that requires a person to express something they dislike, the law is invalid. The court fails to draw any meaningful distinctions – does its ruling allow other professions such as bakers, florists, tattoo artists, musicians to deny services based on someone’s sexual orientation because it conflicts with their personal religious or philosophical beliefs? It also is not clear that this logic is cabined to sexual orientation, the majority’s logic applies with equal force to a business that desires to discriminate based on race, sex, religion or disability. For all of these reasons, Judge Kelly believes the Larsens’ claims must fail and the district court’s should be affirmed.
III. IMPLICATIONS MOVING FORWARD
As Judge Kelly indicates, the Eight Circuit’s decision has broad implications for the validity of antidiscrimination statutes nationally. Under the majority’s logic, any business can claim to deny services because their religious or philosophical beliefs conflict with that person’s membership in a protected class. The Eighth Circuit’s decision goes much farther than the recent decision from the Supreme Court in Masterpiece Cakeshop, a narrow decision allowing a baker to deny his services to a same-sex couple. In Masterpiece Cakeshop, the Court actually affirmed the principle that a business may not deny someone goods and services based on their religious beliefs under a neutral public accommodation law.
This case provides a framework for religious freedom advocates to use to undermine the force of antidiscrimination laws. This is concerning considering two important developments: (1) while Telescope Media has not been appealed to the Supreme Court, the Court recently granted cert to a very similar case; and (2) since Masterpiece Cakeshop the composition of the Court has changed with Justice Kennedy, a Justice whose pro-LGBTQ+ decisions have been transformative, being replaced with Justice Kavanaugh, a Justice without a similar record. This case paves the way for the Court to, like the Eight Circuit, prioritize the right to religious freedom over the right to be free from discrimination. Hopefully, the Court will not be so persuaded by the Eight Circuit’s flawed legal argument and will instead, understand the grave issues at stake that Judge Kelly considered in her dissent.
 See An Act to Protect All Citizens in Their Civil and Legal Rights, ch. 224, § 1, 1885 Minn. Laws 295, 296 (the first Minnesota Human Rights Act).
 See Minnesota Human Rights Act, ch. 22, 1993 Minn. Laws 121–22 (amending the Minnesota Human Rights Act to protect against discrimination on the basis of sexual orientation); Emma Margolin, How Minneapolis Became the First City in the Country to Pass Trans Protections, MSNBC (Jun. 3, 2016, 1:25 PM), http://www.msnbc.com/msnbc/how-minneapolis-became-the-first-city-the-country-pass-trans-protections [https://perma.cc/R22U-UJHL](discussing how the Minneapolis city council, in 1974, voted to ban discrimination on the basis of “affectional or sexual pleasure).
 Minn. Stat. § 363A (2019).
 Id. at § 363A.02(5).
 Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019).
 Kate Anderson, Eight Circuit Rules Government Can’t Force Christians to work Same-Sex Ceremonies, The Federalist, (Sept. 16, 2019), https://thefederalist.com/2019/09/16/eighth-circuit-rules-gay-couples-cant-force-christians-work-ceremonies/ [https://perma.cc/6DRF-KL6Q].
 Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984).
 Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018).
 Telescope Media, 936 F.3d at 748.
 Id. at 747–48.
 Id. at 748 (citing Minn. Stat. §§ 363A.11(1)(a)(1), 363A.17(3)).
 Id. at 749.
 Id. at 747.
 Id. at 750.
 Id. at 751 (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952).
 Id. at 752 (holding further that “[s]peech is not conduct just because the government says it is.).
 Id. at 752–54 (holding that the MHRA is content-based because it mandates speech regarding same-sex marriage that the Larsens would otherwise not speak or by producing only opposite-sex wedding videos it exacts a penalty based on the content of the speech, namely that they must make same-sex wedding videos).
 Id. at 755 (drawing guidance from Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grop. Of Bos., Inc., 515 U.S. 557, 572–73 (1995), the court found that the MHRA is unconstitutional because the government is requiring the Larsens’ speech to serve as a public accommodation for others).
 Id. at 757 (here the court distinguishes between certain conduct that can be regulated by an antidiscrimination statute such as an employer hanging a “White Applicants Only” sign).
 Id. at 758. Note, the author has decided to focus solely on the Free Speech Clause claim.
 Id. at 763 (citing Masterpiece Cakeshop, 138 S. Ct. at 1723–24).
 Id. at 775 (stating that reasonable observers would not perceive the provision of the Larsens services to the same-sex couple as an endorsement of same-sex marriage).
 Id. (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 629 (1994)).
 Id. at 776.
 Id. (citing Roberts, 468 U.S. at 623–24 which held that “the MHRA serves Minnesota’s compelling interest in eradication discrimination against its female citizens which [the Supreme Court] characterized as a compelling state interest of the highest order . . . .”).
 Id. (citing Heart of Atlanta Motel v. United States, 379 U.S. 241, 292 (1964)).
 Id. at 778.
 Id. at 779.
 Id. at 780.
 Id. (stating that a business owner could easily say “we don’t film Jewish ceremonies.”)
 Masterpiece Cakeshop, 138 S. Ct. at 1724 (holding that the Colorodo Civil Rights Commission’s consideration of a claim where a baker denied to make a wedding cake for a same sex couple violated the Free Exercise Clause and its order must be set aside).
 Id. at 1727.
 Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019) (a case discussing whether a Catholic adoption agency can turn away same-sex couples).
 See US Justice Kennedy’s Legacy on Gay Rights, Human Rights Watch (July 8, 2018, 12:01 AM), https://www.hrw.org/news/2018/07/08/us-justice-kennedys-legacy-gay-right# [https://perma.cc/R5VT-AERX].
 See Margaret Hoover & Tyler Deaton, What LGBT Supporters Need to Know About Kavanaugh, CNN (Oct. 16, 2018, 9:30 AM), https://www.cnn.com/2018/10/16/opinions/kavanaugh-lgbt-rights-matthew-shepard-20-years-later-hoover-deaton/index.html [https://perma.cc/R2SW-3H6Z] (stating that Justice Kavanaugh’s record on LGBT issues is unclear).