Carl and Angel Larsen wish to make wedding videos. Can Minnesota require them to produce videos of same-sex weddings, even if the message would conflict with their own beliefs? The district court concluded that it could and dismissed the Larsens’ constitutional challenge to Minnesota’s antidiscrimination law. Because the First Amendment allows the Larsens to choose when to speak and what to say, we reverse the dismissal of two of their claims and remand with instructions to consider whether they are entitled to a preliminary injunction. [My underlines]In short, can a/the state pass a law that abridges the 1st Amendment rights of citizens? The short answer is (and should have been) no. Except in very extreme circumstances the state has no such power.
The Larsens “gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification.” But because they “are Christians who believe that God has called them to use their talents and their company to . . . honor God,” the Larsens decline any requests for their services that conflict with their religious beliefs. This includes any that, in their view, “contradict biblical truth; promote sexual immorality; support the destruction of unborn children; promote racism or racial division; incite violence; degrade women; or promote any conception of marriage other than as a lifelong institution between one man and one woman.”This is identical to the situation that was in play with Masterpiece. It was not a rejection of the homosexual customer, it was a rejection of the particular service requested. I find it "interesting" that these homosexuals find their way to Christian establishments rather than say Whahabist Muslim ones. But that's not within the scope of this post. So Minnesota tried to get at Telescope via it's "Human Rights Law":
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.Recall that Telescope said it would engage with homosexual customers within the parameters of their Christian business model So, had the couple 9(or individual) asked Telescope to video the wedding of one of their heterosexual friends, Telescope would have contracted with the homosexual customer because the request fell within the parameters of their business model. In other words, Telescope is partially in the business of making videos of heterosexual weddings, asking it to do otherwise is asking it do so something outside it's business parameters.
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 "legitimate business purpose" is that it is beyond the scope of the business to do videos of homosexual weddings. Minnesota takes it to another level though:
Minnesota reads these two provisions as requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all. According to Minnesota, the Larsens’ duty does not end there. If the Larsens enter the wedding- video business, their videos must depict same- and opposite-sex weddings in an equally “positive” light. Oral Argument at 26:08–27:15. If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers “because of” their sexual orientation. [my underlines]Let me take out that underlined portion just so you see how far this rabbit hole goes:
their videos must depict same- and opposite-sex weddings in an equally “positive” light. Oral Argument at 26:08–27:15. If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers “because of” their sexual orientation.You must approve. Says the state. For those of you who are too young to have witnessed the "progress" of this nonsense, I'll lay it out. It went like this: 1) Stop harassing us where we congregate.
2) Stop criminalizing what we do in private.
3) Stop denying us benefits of marriage
4) We need to be included in anti-discrimination laws
5) We need better representation in the media
6) You will approve of our marriages.
7) This man is a woman. This woman is a man.
8) We will indoctrinate your children.
9) If you resist we'll have the state deal with you. <-- we are here. There is no "slippery slope fallacy". It's a logical fallacy *only* because it's premises cannot be proven. Hence the slippery slope is a predictive model. Anyway. So we're at the point where a state has decided that it's citizens not only *have to* participate in events and speech they do not approve of, but if they don't engage in that speech or event in such a way that meets the approval of the state they can be sanctioned. This passed multiple legislative sessions. Think about that. In discussing the previous court ruling, the 8th said:
According to the court, the Larsens’ free-speech claim failed as a matter of law because the MHRA serves an important governmental interest— preventing discrimination—without limiting more speech than necessary to accomplish this goal. It also ruled that the MHRA did not violate any of the other constitutional rights identified by the Larsens.The state interest in "preventing discrimination" involves "limiting speech as necessary to accomplish that goal." Can we say expansive? As we have seen the left expand the list of The Aggrieved and what words and deeds it considers "discriminatory", "white supremacist" and the like, why should the state be given such power?
The First Amendment, which applies to the states through the Fourteenth Amendment, prohibits laws “abridging the freedom of speech.” U.S. Const. amend. I. It promotes the free exchange of ideas by allowing people to speak in many forms and convey a variety of messages, including those that “invite dispute” and are “provocative and challenging.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). It also prevents the government from “[c]ompelling individuals to mouth support for views they find objectionable.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). As the Supreme Court has made clear, “[t]here is no room under our Constitution for a more restrictive” approach because “the alternative would lead to standardization of ideas . . . by legislatures, courts, or dominant political or community groups.” Terminiello, 337 U.S. at 4–5. [my underlines]So "provocative and challenging" speech is protected.
It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. See post at 48. In fact, in holding that motion pictures are protected by the First Amendment, the Supreme Court explicitly rejected the idea that films do not “fall within the First Amendment’s aegis [simply] because” they are often produced by “large-scale business[es] conducted for private profit.” Joseph Burstyn, 343 U.S. at 501; see also Masterpiece Cakeshop, 138 S. Ct. at 1745 (Thomas, J., concurring) (“[T]his Court has repeatedly rejected the notion that a speaker’s profit motive gives the government a freer hand in compelling speech.”). Other commercial and corporate entities, including utility companies and newspapers, have received First Amendment protection too. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion) (collecting cases); Tornillo, 418 U.S. at 258; see also Citizens United v. FEC, 558That said "provocative and challenging" speech is done for profit does not strip 1st amendment protection.
Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech.This is the most obvious thing. As pointed out above, it represents a great overstep of power by the state and should not be taken lightly. The second part is of interest:
The State asserts an interest in ensuring “that all people in Minnesota [are] entitled to full and equal enjoyment of public accommodations and services.” (internal quotation marks and citation omitted). This interest has a substantial constitutional pedigree and, generally speaking, we have no doubt that it is compelling....Later:But that is not the point. Even antidiscrimination laws, as critically important as they are, must yield to the Constitution...
As the Supreme Court has explained, even if the government may prohibit “the act of discriminating against individuals in the provision of publicly available goods, privileges, and services,” it may not “declar[e] [another’s] speech itself to be [a] public accommodation” or grant “protected individuals . . . the right to participate in [another’s] speech.” Id. at 572–73 (emphasis added).
As these cases demonstrate, regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be. It is a “bedrock principle . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989); see also Masterpiece Cakeshop, 138 S. Ct. at 1731 (“[I]t is not . . . the role of the State or its officials to prescribe what shall be offensive.”). After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, see Snyder v. Phelps, 562 U.S. 443, 448– 49, 460–61 (2011), the Nazis could march in areas heavily populated by Jewish residents, see Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977) (per curiam), and an activist could burn the American flag as a form of political protest, see Johnson, 491 U.S. at 399.Judge Kelly's dissent should be of interest to the reader. As dissents go it is pretty strong. I disagree with it, but I think it is strong and it points to the fundamental problem: th 1964 Civil Rights act and its creation of "protected classes". When that law was passed the primary concern was "Negroes". Black people were generally barred outright from certain businesses or afforded limited accommodation. I don't think anyone at the time even thought that protected classes would be made of persons who's behavior was not only agreed to be immoral by those persons who the law sought to protect but that the behavior of these new protected classes was illegal country wide at the time. I'm pretty certain that had someone gone back in a time machine and said that homosexuals would be covered under the act being considered, they would have probably added language that expressly limited the ability to expand the classes or would have scrapped the entire thing. That said, once homosexuals became a protected class, it put the state on a direct collision course with the 1st amendment and the idea of freedom of (and from) association. One of the items of interest in Kelly's dissent is the following:
Likewise, regardless of who asks TMG to create the wedding video, if the Larsens refuse to provide the service because of the sexual orientation of the video’s subjects, that is discrimination “because of” sexual orientation.This goes to my earlier argument in regards to a heterosexual person asking for a video for their homosexual friends. The heterosexual couple are the customers but under the Minn. law it would still be discriminatory to the non-customer subject. Ultimately Kelly believes that the state should and can override a citizen's conscience because the state disagrees with it:
I recognize that the complaint alleges that the reason for the Larsens’ differential treatment of same-sex couples is not because of prejudice against homosexuals, but because they disagree with the message that a video of a same-sex marriage would convey. But that does not make their intended conduct nondiscriminatory under the law. They want TMG to offer different services to customers based on sexual orientation, running afoul of the MHRA. Whatever the Larsens’ motivations, the premise of this lawsuit is that TMG would violate the MHRA if it engages in the conduct described in the complaint.Kelly even brought up separate but equal:
Thus, TMG cannot avoid violating the MHRA by providing other types of non-wedding services to gay and lesbian clients, nor can it provide services to same-sex couples that are inferior to those that it provides to heterosexual couples. Courts have long rejected the notion that the provision of “separate but equal” services is anything but discrimination by another name. Brown v. Bd. of Ed., 347 U.S. 483, 495 (1954); see also Katzenbach v. McClung, 379 U.S. 294, 296–99 (1964) (concluding that a restaurant that provided “a take-out service for Negroes” but “refused to serve Negroes in its dining accommodations” violated Title II’s public accommodations provision).I don't think this argument stands. Even the example given is not analogous. "Negroes" made to go to the pick up window" are being denied entrance to the establishment. No such thing is present in this case. Secondly there is no "separate" service whatsoever in discussion here. There is no service where the subject is a homosexual wedding. A better "Negro" example would be a venue that refuses to sell the Negro a particular product in it's store that it sells to non-Negroes. What Kelly and the state of Minn. is saying is that you will do business in the way that Minn. decides (with the very real chance that some new protected class will show up) or you do no business whatsoever. It is the very definition of compelled speech. Do this or do not work...and die.
