Last winter, a St. Cloud couple sued the state of Minnesota in an attempt to overturn the Minnesota Human Rights Act. Passed in 1993, the Minnesota Human Rights Act bars discrimination based on sexual orientation and gender identity. On Wednesday, a federal judge dismissed that lawsuit.

In December, Carl and Angel Larsen who own Telescope Media Group, filed suit against the state of Minnesota, the Minnesota Department of Human Rights, and the office of Attorney General Lori Swanson alleging that the Minnesota Human Rights Act violated the Larson’s free speech and free exercise of religion rights because it would force the couple to film same-sex weddings if they decided to embark on a wedding videography business.

The suit was brought with the help of religious right legal outfit Alliance Defending Freedom.

The court found none of their argument to be in line with the law. The Larsen’s were concerned that they would be compelled to post videos of same-sex weddings on their social media channels, an argument the court rejected:

The fear that MDHR would ever take enforcement action against the Larsens for refusing to post videos of same-sex weddings online is “imaginary or speculative.” Younger v. Harris, 401 U.S. 37, 42 (1971). Thus, because the Larsens “do not claim that they have ever been threatened with prosecution [or civil enforcement], that a prosecution [or civil enforcement action] is likely, or even that a prosecution [or civil enforcement action] is remotely possible,” id., in relation to their plan not to post videos of same-sex weddings online, “they do not allege a dispute susceptible to resolution by a federal court.” Babbitt, 442 U.S. at 299.16
The Larsens also said they planned to post a statement to their website saying that they won’t film same-sex weddings. The court said that they cannot legally do that in Minnesota:
As an initial matter, the Larsens plan to post language on their website stating that they will not create wedding videos for same-sex couples. To the extent the Larsens argue such a statement is protected by the First Amendment, and thus the operation of the MHRA would unconstitutionally curtail such speech, the Court finds there is no constitutional problem. While carried out through language, the statement is conduct akin to a “White Applicants Only” sign that may be prohibited without implicating the First Amendment. See Rumsfeld, 547 U.S. at 62. Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment… the MHRA bans discrimination against customers as a way to combat invidious discrimination, not because the government “disagree[s] with the message” any expressive service might convey.

The Larsens also called the argument — that the law wouldn’t force people who support support same-sex marriage to make videos against same-sex marriage — inept:

The Larsens argue that the MHRA would not compel a wedding videographer supportive of same-sex marriage to create a video critical of same-sex marriage, and thus, the law is viewpoint-based. But this comparison is inapt, as Court cannot imagine any situation in which the MHRA would compel a wedding videographer to make a wedding video critical of any marriage. It would, however, compel a wedding videographer hostile to opposite-sex marriage to serve opposite-sex couples, which would incidentally require them to create videos depicting opposite-sex weddings. Thus, as applied to wedding videographers, the law incidentally requires creation of wedding videos for all customers regardless of the customers’ protected status or the message depicted in the resulting videos. The law also does not prohibit the creation of any videos, and thus does not “raise[] the specter that [Minnesota] may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). Contrary to the Larsens’ assertions, the MHRA does not amount to a state effort to stamp out expression opposing same-sex marriage or to privilege only pro-same-sex marriage views. 23

The court also answered the question of whose expression a wedding video is conveying:

First, speech-for-hire is commonly understood to reflect the views of the customer.30 Weddings are expressive events showcasing the messages and preferences of the people getting married and attendees, who do things like speak, dress, and decorate in certain ways. A video of a wedding depicts this expressive event, and while videographers may exercise creative license to fashion such a video, the videographer is a “conduit” for communication of the speech and expression taking place at the wedding. Thus, when a person views a wedding video, there is little danger that they would naturally attribute the video’s messages to the videographer.

It laid out how the Larsens could communicate their opposition to same-sex marriage while also not discriminating:

Second, the Larsens can easily disclaim personal sponsorship of the messages depicted in the wedding videos they create for clients. For example, the Larsens could post language on their website stating that while they follow applicable law, and thus serve couples regardless of protected status, they are opposed to same-sex marriage. The simple ability to disclaim support for same-sex marriage sets this case apart from Hurley, where there was not a practicable way to disclaim support of participants’ messages in the context of a moving parade.

The court also noted that nothing in Minnesota law compels the Larsens to publicize same-sex wedding videos:

Third, a major concern in the compelled speech cases is the notion that if a speaker is required to host the message of another, this will inhibit the speaker’s ability to communicate his or her own preferred message. E.g., Tornillo, 418 U.S. at 256-57. The Larsens’ planned wedding video business does not raise this concern, as the MHRA would leave the Larsens free to only publicize videos of opposite-sex weddings and to affirmatively communicate their views to the public in any manner they prefer

The Larsens argued that because they are a religious business, they should be allowed to discriminate. The court noted that most people understand that discriminating against someone has nothing to do with business.

Furthermore, persons of common intelligence can distinguish between legitimate business purposes, related to the functions of operating a business, and other purposes. Based on the plain meaning of the words “legitimate business purpose,” members of the public generally understand that a religiously-motivated desire to discriminate based on a protected status is not a legitimate business purpose, since this reason has nothing to do with business operations.

The court found that all arguments brought by the Larsens and the Alliance Defending Freedom failed as a matter of law:

Defendants have met their burden to demonstrate that Counts I-VII in the Amended Complaint all fail as a matter of law. The MHRA does not violate the Larsens’ First Amendment speech, association, or free-exercise rights. Nor does the MHRA implicate the unconstitutional conditions doctrine. The Larsens’ Fourteenth Amendment claims also fail because the Larsens have not alleged that they are treated differently than similarly-situated individuals, they have not alleged the infringement of a fundamental right, the MHRA is not unconstitutionally vague, and their First Amendment-related claims are not separately cognizable under the rubric of substantive due process.

Despite the loss in court, the Alliance Defending Freedom says it will appeal.

“Tolerance is a two-way street. Creative professionals who engage in the expression of ideas shouldn’t be threatened with fines and jail simply for having a particular point of view about marriage that the government may not favor,” ADF Senior Counsel Jeremy Tedesco said in a statement. “Public officials can’t censor filmmakers or demand that they tell stories in film that violate their deepest convictions.”

“People should have the freedom to disagree on critical matters of conscience, which is why everyone, regardless of their view of marriage, can support the Larsens,” Tedesco added. “The same government that can force them to violate their faith and conscience can force any one of us to do the same. That’s why we plan to appeal this ruling to the 8th Circuit.”

Download (PDF, 279KB)

The Column is a community-supported non-profit news, arts, and media organization. We depend on community support to continue the work of solid LGBT-centric journalism. If you like this article, consider visiting Give MN to make a contribution today.
SHARE
Previous articleAround the Region: PFLAG comes to Brookings, hate crimes debate grows in ND
Next articleControlled Burn: Queer Performance for a World on Fire starts burning on October 5th
Andy Birkey

Andy Birkey has written for a number of Minnesota and national publications. He founded Eleventh Avenue South which ran from 2002-2011, wrote for the Minnesota Independent from 2006-2011, the American Independent from 2010-2013. His writing has appeared in The Advocate, The Star Tribune, The Huffington Post, Salon, Cagle News Service, Twin Cities Daily Planet, TheUptake, Vita.mn and much more. His writing on LGBT issues, the religious right and social justice has won awards including Best Beat Reporting by the Online News Association, Best Series by the Minnesota chapter of the Society of Professional Journalists, and an honorable mention by the Sex-Positive Journalism awards.

LEAVE A REPLY