A federal judge in Minnesota just knocked down another attempt by the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, to justify anti-gay discrimination in the name of free speech. In his decision against a pair of St. Cloud videographers, Chief District Judge John Tunheim, a Clinton appointee, dismantled every argument ADF is making to the U.S. Supreme Court on behalf of Jack Phillips of Masterpiece Cakeshop.
Carl and Angel Larsen run a video production company called Telescope Media Group. They want to start selling their services for weddings, but they also want to be able to refuse same-sex couples in violation of the Minnesota Human Rights Act (MHRA), which bans discrimination by public accommodations on the basis of sexual orientation. Like several other suits ADF has filed elsewhere, the Larsens challenged the MHRA preemptively, meaning they hadn’t yet been found in violation of it but want it to be struck down because they believe it violates their freedoms of speech and religion.
Tunheim disagrees — vehemently. In his decision, he not only rejected all of their claims, he explained in detail — often in long footnotes — why the arguments just didn’t hold up. (Phillips’ arguments are nearly identical to ones he has made previously to justify why he should be able to refuse to sell wedding cakes to same-sex couples.)
It’s definitely discrimination based on sexual orientation
According to Tunheim, the Larsens’ plan to sell wedding recording services to different-sex couples only “would clearly violate” the state’s public accommodations nondiscrimination protections. In a footnote, he dismisses their argument that they are declining because of the message of the video instead of because of the customers’ sexual orientation.
“The Court does not find semantic distinctions about the reason for refusing service to be particularly useful,” he counters. “When the message of the speech-for-hire necessarily varies based on the customer’s protected characteristic, such a refusal is at least in part ‘because of’ the customer’s protected status, even if the decision is also ‘because of’ an objection to the message of the expressive product that will be created as a result of serving the customer with the ‘objectionable’ characteristic.”
In other words, there’s no way to refuse service to a same-sex couple because they’re a same-sex couple that isn’t inherently discriminatory and illegal.
Announcing an intent to discriminate illegally isn’t free speech
A common quality in ADF’s preemptive lawsuits challenging LGBTQ protections is a claim that the business wants to publicly announce on their website their intention not to sell wedding-related services to same-sex couples. The Larsens are no exception, proposing a statement indicating that they “cannot make films promoting any conception of marriage that contradicts its religious beliefs that marriage is between one man and one woman, including films celebrating same-sex marriages.” If they cannot publish this statement, they argue, it’s a violation of their free speech.
But “there is no constitutional problem” in prohibiting that speech, Tunheim writes. “[T]he statement is conduct akin to a ‘White Applicants Only’ sign that may be prohibited without implicating the First Amendment.” Language announcing an intent to discriminate is “part of the act of sexual orientation discrimination itself.”
Nondiscrimination laws do not implicate all speech-for-hire professionals
Tunheim doesn’t hide from the fact that the nondiscrimination law may require creative business owners to create work that they don’t want to make, but he rejects the argument that such a requirement burdens free expression. In a lengthy footnote, he counters:
For example, the Court does not understand the statute to mean that a ghost-writer operating as a public accommodation would be prohibited from turning down a request to write a book when the writer disagrees with the message the book would convey. This is true even if the book would be on a topic related to a protected status.
Thus, a writer personally opposed to same-sex marriage could decline to ghost-write a book detailing the societal benefits of same-sex marriage if that refusal is genuinely based on an objection to the book’s message. A customer of any sexual orientation could request such a book. Absent evidence demonstrating discrimination based on the customer’s protected status, the reason for declining the book deal would be “because of” the message of the book, not “because of” the sexual orientation of the customer.
There are only a “handful of rare circumstances” in which a customer’s protected status is “inextricably linked” to the content of the expressive product, such as when the customer is a man marrying another man, because “the wedding video would necessarily depict a wedding of a man marrying another man.”
“Another example,” Tunheim offers, “would be a videographer or photographer opposed to interracial marriage who is hired to document an interracial marriage or photograph an interracial family.”
Nondiscrimination protections do not unfairly target expressive businesses
Tunheim does not agree with ADF’s argument that the MHRA unfairly targets the Larsens because of the expressive nature of their product. It “applies to all public accommodations and businesses selling services regardless of the type of product or service sold,” he explains, including “all public accommodations selling expressive services to the public, regardless of the message expressed.”
In another footnote, he suggests that the Larsens (and ADF) simply do not understand how the law works:
The Larsens argue that “whether the MHRA applies depends on the content of the Larsens’ films,” noting that the law would not “require the Larsens to create films promoting the election of any Minnesota politician they dislike because political affiliation is not protected by the MHRA.”
But the Larsens misunderstand how the MHRA operates – it applies equally to public accommodation videographers creating wedding videos, political videos, or any other type of videos. A political candidate seeking a campaign video could not be lawfully turned away because of her race or sexual orientation, just as a couple looking to purchase wedding video services could not be lawfully turned away because of their race or sexual orientation. Thus, whether the law applies to an expressive business operating as a public accommodation clearly does not depend on “the content of the regulated speech,” as the law applies to all such businesses.
Nondiscrimination laws do not impose a double standard on those opposed to same-sex marriage
One of ADF’s primary arguments in these cases — and particularly in the Masterpiece Cakeshop case — is that sexual orientation nondiscrimination laws unfairly discriminate against those who oppose same-sex marriage. The argument is based on the claim that making a product for a same-sex wedding is somehow participation in and endorsement of the wedding.
Tunheim blatantly calls out the false positive inherent in this argument:
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.
Nothing about the law actually serves to “stamp out expression opposing same-sex marriage or to privilege only pro-same-sex marriage views.”
The Larsens also argued that their business was “similarly situated” to businesses that support same-sex marriage, and so it was unfair that one group can “express messages consistent with their beliefs about marriage” while the other can’t. Tunheim was unconvinced, noting that this proposed grouping based on a desire to express their personal beliefs “is unlike any the Court has encountered in precedent.”
Anti-gay wedding vendors are still free to express their opposition
The Larsens contend that if they aren’t able to violate the MHRA when they make their videos, they’ll be prevented “from celebrating and promoting their religious views about marriage. Tunheim takes ADF to task for this claim in yet another footnote:
The Court considers this a legal conclusion couched as a factual allegation, and finds the legal conclusion untenable. The MHRA does not prevent the Larsens from speaking out as widely as they please against same-sex marriage.
He goes on to explain that the Larsens “do not have a right to fund that speech through business activities for profit beyond the reach of otherwise valid regulation.” In other words, their right to express their opposition to same-sex marriage does not entitle them to operate their business in such a way that circumvents nondiscrimination laws.
A “free speech expression” would undermine the entire point of nondiscrimination laws
In ADF’s many challenges to nondiscrimination laws, they argue that if nondiscrimination laws are going to remain on the books, they should include an exemption for the kind of expression inherent in products vendors like Phillips and the Larsens sell. This is akin to asking that the law not apply to those most inclined to violate it, and Tunheim contends that would undermine the entire point of the law.
A “free speech expression,” he writes, “would leave a gaping hole in antidiscrimination law for expressive businesses.” Contrary to ADF’s claim that it would make the law more “narrowly tailored,” such an exception “would amount to the Court privileging the rights of expressive businesses to avoid any and all incidental burdens on their speech-for-hire over the rights of customers to be free from discrimination.”
Lawmakers could decide to create such an exception, but as the law is written, Tunheim believes the courts must respect that the law’s intent was to remedy exactly this kind of harm.
Speech-for-hire products reflect the views of the customer
ADF argues both on behalf of the Larsens and Phillips that being forced to produce a creative product for a same-sex couple’s wedding is “compelled speech.” They generally rely on two Supreme Court cases to make this case: West Virginia State Board of Education v. Barnette (1943), when the Court concluded a Jehovah’s Witness student should not be forced to recite the pledge of allegiance; and Wooley v. Maynard (1977), when the Court concluded a New Hampshire driver could cover up the “Live Free or Die” motto on a license plate.
Tunheim rejects these comparisons because “[t]he law does not dictate how the Larsens carry out any of their creative decisions regarding filming and editing.”
“Speech-for-hire is commonly understood to reflect the views of the customers,” he explains, adding in a footnote that ADF has not provided any caselaw to the contrary. “When a person views a wedding video, there is little danger that they would naturally attribute the video’s messages to the videographer,” he wrote.
The hypothetical of a wedding video makes this point far more clearly than a cake might. For example, wedding guests often share their thoughts about the marrying couple in a wedding video, but the videographer is not necessarily endorsing those perspectives simply by including them in the final product.
Another case ADF often cites to defend wedding vendors’ expressive content is Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, wherein the Supreme Court allowed the organizers of Boston’s St. Patrick’s Day parade to exclude a group advocating for LGBT equality. Besides the fact that the decision rested on determining that a parade was not a public accommodation, Tunheim offers another important distinction. He notes that the Larsens can easily post disclaimers indicating their opposition to same-sex marriage, which 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.”
In this particular case, ADF tried to circumvent this distinction with a novel approach: the Larsens intend to structure their wedding video contracts to require that all the videos they produce be posted online. Thus, they would have no choice but to publish videos of same-sex weddings, which would implicate their speech. In a footnote, Tunheim calls it “truly incredible” that they would voluntarily structure their contracts in such a way.
“In the Court’s view, the plan to structure contracts in a manner that obligates the Larsens to publicize these videos is a creative lawyer’s attempt to bring the facts of this case closer in line with the facts in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc.”
Tunheim nonetheless accepted the premise of such a contract, but still decided against the Larsens. A requirement that they post all wedding videos online “is not a provision that benefits customers,” because — as they argued — it reflects “their own personal goal of communicating with the public about their religious beliefs.” In a footnote, he reasons further that they are selling the service of creating the video and “the finished product — the video itself,” but the posting of the video online is not actually a service they are selling, however they choose to mandate it in their contracts. Moreover, ADF even conceded during the hearing that the MHRA would not require them to publish the videos.
It’s at least a little bit interesting that Tunheim issued this decision while the Masterpiece Cakeshop case is pending before the Supreme Court. When considering near-identical cases, it’s not uncommon for lower courts to wait for the Supreme Court to chime in so that it can then just follow that precedent instead of having to revisit the case if the ruling would change the outcome. It’s unclear if any of his ruling will convince the conservative justices who might be inclined to side with ADF and Phillips.
In the meantime, ADF has already announced its intentions to appeal the Larsens’ case to the U.S. Court of Appeals for the Eighth Circuit. “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,” offered ADF Senior Counsel Jeremy Tedesco in response to the opinion. “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.”