Monday, September 25, 2017

Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act

by Prof. Jeremiah Ho


Image1 Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights.  In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”).   The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages.  To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings.  That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000.  In addition, Minnesota legislatively recognized same-sex marriages in 2013.  Hence, their challenge arose. 

Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised.  But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.  

The challenges under the First Amendment were untenable.  For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny.  The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine.  Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible.  For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous.  The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability.  Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored. 

Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments. 

Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.”  No doubt, this lawsuit is likely to be appealed.  The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall.  That case involved a professional wedding cake provider’s refusal of business to same-sex couples. 

Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well.  I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies.  At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values.  Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights.  Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.

Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights.  Minnesota was where one of the earliest episodes of the struggle for marriage equality took place.  In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis.  After their application was denied, they sued.  Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”

Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.

You may read the judgment here.  

 

 

 

 

http://lawprofessors.typepad.com/human_rights/2017/09/keep-the-cameras-rolling-photographers-lose-in-challenge-over-refusal-to-service-same-sex-weddings-under-minnesotas-human.html

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