by Kevin Daley
A federal appeals court has revived a legal challenge to the Minnesota Human Rights Act (MHRA), ruling for the first time that religious business owners can invoke free speech rights when refusing to service a same-sex wedding.
The 8th U.S. Circuit Court of Appeals sided with Carl and Angel Larsen, a Christian couple who operate a video production company called Telescope Media Group. The Larsens want to expand their business to include weddings, but state officials say the MHRA requires the Larsens to accommodate both same-sex and opposite-sex partners.
“Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways,” Judge David Stras wrote for a divided three-judge panel. “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.”
The decision is particularly significant in view of the Supreme Court’s 2018 Masterpiece Cakeshop decision, which involved a Christian baker who declined to make custom weddings cakes for same-sex marriages. Though the baker prevailed in that dispute, the high court did not decide whether religious conservatives can use the First Amendment to skirt anti-gay discrimination laws.
The Alliance Defending Freedom (ADF), which represented the baker in the Masterpiece case, also represents the Larsens. ADF is a public interest law practice that litigates around religious liberty issues.
The Larsens sued state officials in December 2016, saying the MHRA prevented them from operating their business consistent with their religious beliefs. U.S. District Judge John Tunheim sided with the state and dismissed their lawsuit in September 2017.
On appeal, the 8th Circuit said that Telescope’s videos are the Larsens’s personal speech. The Larsens’s exercise significant editorial discretion over its media productions and promote a particular message about the sanctity of marriage, the panel said.
As such, the majority said the MHRA forces the Larsens to defy their religious beliefs and create speech that is favorable to same-sex marriage. Citing the Supreme Court’s 2018 Janus decision, the 8th Circuit said that “compelling individuals to mouth support for views they find objectionable,” is a core First Amendment violation. In Janus, the high court said that unions could not collect mandatory dues from non-members for First Amendment reasons.
Elsewhere in the decision, Stras wrote that the MHRA regulates speech based on content, another violation. The majority said the safer course for the Larsens would be to avoid the wedding business altogether, a type of “compelled self-censorship” that violates free speech rights.
The 8th Circuit also allowed the Larsens’s to proceed with their claim that the MHRA interferes with their right to practice religion. Stras said the couple is in a unique “hybrid situation” in which they can use their free exercise concerns to “reinforce their free speech claim.”
Judge Bobby Shepard joined Stras’s opinion. President Donald Trump included Stras on his list of prospective Supreme Court nominees.
Minnesota counters that the MHRA regulates conduct, not speech, and that any burden on the Larsens’s free speech rights is merely incidental. Rules or regulations that have unintentional effects on speech rights are generally lawful.
In a series of tweets following the 8th Circuit’s decision, Minnesota Attorney General Keith Ellison promised to bring a strong, strategic legal response, and said he was offended by the decision.
(7/7) I’ve fought alongside the LGBTQ community for years. As a human, I’m offended by the majority’s ruling. As Attorney General, I’m going to respond in the strongest & most strategic way possible to maximize human rights and dignity for LGBTQ people & everyone—no exceptions.
— Attorney General Keith Ellison (@AGEllison) August 23, 2019
In dissent, Judge Jane Kelly warned that the majority’s thinking could be used to evade civil rights laws that bar race and sex discrimination. Kelly is considered a contender for a Supreme Court appointment under a Democratic president.
“Its logic would apply with equal force to any business that desires to treat customers differently based on any protected characteristic, including sex, race, religion, or disability,” Kelly wrote. “In this country’s long and difficult journey to combat all forms of discrimination, the court’s ruling represents a major step backward.”
The case will now return to a federal trial court for further proceedings.
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Kevin Daley is a reporter for the Daily Caller News Foundation.
Photo “Carl and Angela Larsen” by ADF.