Free Speech

Videographers Have First Amendment Right Not to Make Same-Sex Wedding Videos

|The Volokh Conspiracy |

From this morning's 2-to-1 Eighth Circuit decision in Telescope Media Group v. Lucero, written by Judge David Stras and joined by Judge Bobby Shepherd (Judge Jane Kelly dissenting in major part):

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 [which, given the majority's legal analysis, seems nearly certain (unless the Eighth Circuit rehears the case en banc or the Supreme Court agrees to hear it)-EV].

Here's the majority's explanation of the facts:

The Larsens, who own and operate Telescope Media Group, use their "unique skill[s] to identify and tell compelling stories through video," including commercials, short films, and live-event productions. They exercise creative control over the videos they produce and make "editorial judgments" about "what events to take on, what video content to use, what audio content to use, what text to use … , the order in which to present content, [and] whether to use voiceovers."

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."

The Larsens now wish to make films that promote their view of marriage as a "sacrificial covenant between one man and one woman." To do so, they want to begin producing wedding videos, but only of opposite-sex weddings. According to the Larsens, these videos will "capture the background stories of the couples' love leading to commitment, the [couples'] joy[,] … the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples' lives." The Larsens believe that the videos, which they intend to post and share online, will allow them to reach "a broader audience to achieve maximum cultural impact" and "affect the cultural narrative regarding marriage."

Minnesota authorities interpret the state's ban on sexual orientation discrimination in public accommodations as "requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all," and "[i]f the Larsens enter the wedding- video business, their videos must depict same- and opposite-sex weddings in an equally 'positive' light."

The majority held (correctly, I think) that applying this law to the Larsens would unconstitutionally compel speech, as well as unconstitutionally restricting speech:

[A.] The Larsens' videos are a form of speech that is entitled to First Amendment protection. The Supreme Court long ago recognized that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." …

Although the Larsens do not plan to make feature films, the videos they do wish to produce will convey a message designed to "affect public attitudes and behavior." According to their complaint, they will tell "healthy stories of sacrificial love and commitment between a man and a woman," depict marriage as a divinely ordained covenant, and oppose the "current cultural narratives about marriage with which [the Larsens] disagree." By design, they will serve as a "medium for the communication of ideas" about marriage. And like the creators of other types of films, such as full-length documentaries, the Larsens will exercise substantial "editorial control and judgment," including making decisions about the footage and dialogue to include, the order in which to present content, and whether to set parts of the film to music. The videos themselves are, in a word, speech….

The complaint makes clear that the Larsens' videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control.

[B.] It also does not make any difference that the Larsens are expressing their views through a for-profit enterprise. 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." …

[C.] Minnesota's position is that it is regulating the Larsens' conduct, not their speech. To be sure, producing a video requires several actions that, individually, might be mere conduct: positioning a camera, setting up microphones, and clicking and dragging files on a computer screen. But what matters for our analysis is that these activities come together to produce finished videos that are "medi[a] for the communication of ideas." See also Brown v. Entm't Merchs. Ass'n (2011) ("Whether government regulation applies to creating, distributing, or consuming speech makes no difference.").

If we were to accept Minnesota's invitation to evaluate each of the Larsens' acts individually, then wide swaths of protected speech would be subject to regulation by the government. The government could argue, for example, that painting is not speech because it involves the physical movements of a brush. Or it could claim that publishing a newspaper is conduct because it depends on the mechanical operation of a printing press. It could even declare that a parade is conduct because it involves walking. Yet there is no question that the government cannot compel an artist to paint, demand that the editors of a newspaper publish a response piece, or require the organizers of a parade to allow everyone to participate….

[D.] 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….

[1.] To apply the MHRA to the Larsens in the manner Minnesota threatens is at odds with the "cardinal constitutional command" against compelled speech. The Larsens do not want to make videos celebrating same-sex marriage, which they find objectionable. Instead, they wish to actively promote opposite-sex weddings through their videos, which at a minimum will convey a different message than the videos the MHRA would require them to make. Even if the Larsens' desire to selectively speak is "provocative" and "stirs people to anger," Minnesota cannot "coerce[ them] into betraying their convictions" and promoting "ideas they find objectionable." Compelling speech in this manner, as the Supreme Court made clear in Janus, "is always demeaning." This is especially true here, because Minnesota insists that the Larsens must be willing to convey the same "positive" message in their videos about same-sex marriage as they do for opposite-sex marriage.

Minnesota attempts to downplay this injury by pointing out that the MHRA would not require the Larsens to convey any specific message in their videos. Even if the Larsens must be willing to produce "positive" videos about same-sex marriage, Minnesota argues, they need not actually do so unless a customer requests a film with this point of view.

Even aside from its implausibility—for it seems unlikely that any same-sex couple would request a video condemning their marriage—this argument does not get Minnesota far under First Amendment doctrine. The Supreme Court has recognized that the government still compels speech when it passes a law that has the effect of foisting a third party's message on a speaker. In Hurley, for example, it held that Massachusetts could not use its public-accommodation law to require the sponsors of a private parade to include a group of gay, lesbian, and bisexual individuals who wished to march while "carrying [their] own banner." The Court explained that compelling the inclusion of others impermissibly "declar[ed] the sponsors' speech itself to be [a] public accommodation" in a way that "alter[ed] the expressive content of their parade."

Similarly, in Tornillo, the Supreme Court addressed a Florida statute that required newspapers that published attacks on the "personal character or official record" of political candidates to publish the candidates' responses too, free of cost. Forced inclusion, the Court reasoned, "fail[ed] to clear the barriers of the First Amendment" because it impermissibly "intru[ded] into the function of the editors." The lesson from Tornillo is that the First Amendment is relevant whenever the government compels speech, regardless of who writes the script.

[2.] The MHRA also operates in this case as a content-based regulation of the Larsens' speech, even if, as the Supreme Court has recognized, the MHRA does not, "[o]n its face, … aim at the suppression of speech."  A content-based regulation "[m]andat[es] speech that a speaker would not otherwise make" or "exacts a penalty on the basis of the content of" speech. By treating the Larsens' choice to talk about one topic—opposite-sex marriages—as a trigger for compelling them to talk about a topic they would rather avoid—same-sex marriages—the MHRA does both at once.  In fact, by requiring the Larsens to convey "positive" messages about  same-sex weddings, it even goes a step further.

The Supreme Court's decision in Tornillo highlights the problems with content-based regulations. Even if a regulation that requires speech does not directly "prevent[ speakers] from saying anything [they] wish[]," it still exacts a penalty. In Tornillo, the penalty threatened to drive "editors [to] conclude that the safe course [was] to avoid controversy" and to simply not "publish[] news or commentary arguably within the reach of the … statute." Here, "the safe course" for the Larsens would be to avoid the wedding-video business altogether. Yet this type of compelled self-censorship, a byproduct of regulating speech based on its content, unquestionably "dampens the vigor and limits the variety of public debate."

{The allegations here may well be more troubling from a First Amendment perspective than the facts of Tornillo. In that case, all the newspaper had to do was reproduce verbatim an opinion piece written by someone else. The MHRA, in contrast, would require the Larsens to use their own creative skills to speak in a way they find morally objectionable.}

[E.] Laws that compel speech or regulate it based on its content are subject to strict scrutiny, which will require Minnesota, at a minimum, to prove that the application of the MHRA to the Larsens is "narrowly tailored to serve [a] compelling state 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. For example, the Supreme Court has said that antidiscrimination laws typically "are well within the State's … power to enact when a legislature has reason to believe that a given group is the target of discrimination." Indeed, the MHRA itself withstood a constitutional challenge after Minnesota applied it to compel a "large and basically unselective" social club to accept female members. And like the dissent, we have little doubt that Minnesota had powerful reasons for extending the MHRA to protect its citizens against sexual-orientation discrimination.

But that is not the point. Even antidiscrimination laws, as critically important as they are, must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment. See Hurley ("While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."). 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."

Hurley is particularly instructive. When Massachusetts forced the organizers of a private parade to include a group that wished "to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals," the Supreme Court concluded that applying the State's public-accommodation law in this way violated the organizers' freedom of speech. Although antidiscrimination laws are generally constitutional, the Court reasoned, a "peculiar" application that required speakers "to alter the[ir] expressive content" was not. In short, the Court drew the line exactly where the Larsens ask us to here: to prevent the government from requiring their speech to serve as a public accommodation for others.

Similarly, in Dale, the Supreme Court held that the Boy Scouts had the right to expel a gay-rights activist, despite a New Jersey antidiscrimination law that otherwise prohibited the action. The reason, the Court said, was that the Boy Scouts' opposition to homosexuality was expressive and "the forced inclusion of [the activist] would [have] significantly affect[ed] its expression." Like Hurley, Dale makes clear that once conduct crosses over to speech or other expression, the government's ability to regulate it is limited.

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." After all, the Westboro Baptist Church could carry highly inflammatory signs at military funerals, the Nazis could march in areas heavily populated by Jewish residents, and an activist could burn the American flag as a form of political protest….

Indeed, if Minnesota were correct, there is no reason it would have to stop with the Larsens. In theory, it could use the MHRA to require a Muslim tattoo artist to inscribe "My religion is the only true religion" on the body of a Christian if he or she would do the same for a fellow Muslim, or it could demand that an atheist musician perform at an evangelical church service. In fact, if Minnesota were to do what other jurisdictions have done and declare political affiliation or ideology to be a protected characteristic, then it could force a Democratic speechwriter to provide the same services to a Republican, or it could require a professional entertainer to perform at rallies for both the Republican and Democratic candidates for the same office….

[F.] Even so, Minnesota argues that we should apply intermediate scrutiny based on a theory that, once again, turns on the distinction between conduct and speech. Specifically, when "'speech' and 'nonspeech' elements are combined in the same course of conduct" and the government seeks to neutrally regulate the non-speech element, intermediate scrutiny applies under the incidental-burden doctrine. According to Minnesota, the MHRA only incidentally burdens speech because it neutrally regulates "commercial conduct and economic activity" and requires the Larsens to do nothing more than provide "services to customers regardless of their sexual orientation."

The problem with this theory, even aside from the fact that the MHRA is not content neutral, is that Minnesota does not actually seek to regulate non-speech activity. The "commercial conduct" and "economic activity" to which Minnesota refers is the making of the videos themselves, which, as we have already explained, are speech. Indeed, Minnesota cannot specifically identify anything else, meaning that this is just a repackaging of its theory that making the videos is conduct, not speech.

Importantly, the fact that Minnesota is not shy about its belief that it can regulate the videos themselves distinguishes this case from other applications of antidiscrimination laws that actually do target conduct, which are generally constitutional even when they incidentally affect speech. An employment-discrimination law, for example, can unquestionably "require an employer to take down a sign reading 'White Applicants Only.'" And a public-accommodation law requiring a restaurant to serve people of all races, genders, and sexual orientations will have the incidental effect of requiring servers to speak to customers to take their orders. But these consequences are incidental because the relevant laws target the activities of hiring employees and providing food, neither of which typically constitutes speech. Here, by contrast, Minnesota is targeting speechitself.

{In fact, Minnesota's position intrudes on the Larsens' speech in yet another way. In its view, the MHRA would not allow the Larsens to even advertise what they have in mind for their wedding videos. The district court upheld this limitation on the theory that "telling potential customers that a business will discriminate … is part of the act of … discrimination itself."

This analysis, however, rests on a faulty premise. If creating videos were conduct that Minnesota could regulate, then the State could invoke the incidental- burden doctrine to forbid the Larsens from advertising their intent to engage in discriminatory conduct. But in this case, Minnesota cannot compel the Larsens to speak, so it cannot force them to remain silent either.}

Minnesota also suggests that a lesser form of scrutiny is appropriate because the Larsens can say that they disapprove of same-sex marriage in some other way. But just like New Hampshire could not "require [drivers] to display the state motto" Live Free or Die on their license plates, even if they could disavow the motto through "a conspicuous bumper sticker," so too would a disclaimer here be inadequate. The reason is that the constitutional "protection of a speaker's freedom would be empty" if "the government could require speakers to affirm in one breath that which they deny in the next." …

[G.] [In Rumsfeld v. FAIR, l]aw schools, which invited and hosted recruiters of all types, objected to hosting the military because of a disagreement with policies that excluded gays and lesbians from serving. Federal law, however, required the schools to give equal access to military recruiters or risk losing federal funding. The schools sued, claiming that they had a First Amendment right to exclude military recruiters from campus. The Supreme Court disagreed, even if the schools had to "send e-mails [and] post notices on bulletin boards on [the recruiters'] behalf"—both "elements of speech."

The Supreme Court upheld the law because it did not interfere with the law schools' expression or coopt their speech. Simply hosting recruiters was not speech, according to the Court, so the "accommodation of a military recruiter's message" did not "sufficiently interfere with any message of the school[s]." Besides, just like the mall owner in PruneYard, the schools "remain[ed] free … to express whatever views they may have [had] on the military's congressionally mandated employment policy." Cases like Hurley, by contrast, involved unconstitutionally compelled speech because "the complaining speaker's own message was affected by the speech it was forced to accommodate."

The facts of the case, as pleaded by the Larsens, are much closer to Hurley than to … FAIR. Rather than serving as a forum for the speech of others, the Larsens' videos will carry their "own message." The MHRA interferes with their message by requiring them to say something they otherwise would not. The Larsens, then, lose "the autonomy to choose the content of [their] own message," which violates the "cardinal constitutional command" against compelled speech….

[H.] Consistent with the Supreme Court's instruction that antidiscrimination laws "do not, as a general matter, violate the First … Amendment[],"our holding leaves intact other applications of the MHRA that do not regulate speech based on its content or otherwise compel an individual to speak. But when, as here, Minnesota seeks to regulate speech itself as a public accommodation, it has gone too far under Hurley and its interest must give way to the demands of the First Amendment.

Judge Jane Kelly dissented, arguing among other things:

[T]he court tries to recharacterize Minnesota's law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others.

And make no mistake, that is what today's decision affords them license to do. The Larsens concede that they want to operate a public accommodation that serves only opposite-sex couples. Minnesota's law prohibits that conduct just as it would prohibit any hotel from denying its services to an individual based on race, any store from refusing to sell goods to a person based on religion, or any restaurant from charging higher prices to women than to men. That the service the Larsens want to make available to the public is expressive does not transform Minnesota's law into a content-based regulation, nor should it empower the Larsens to discriminate against prospective customers based on sexual orientation….

It is well established that videos are a form of speech protected by the First Amendment. But the First Amendment's right of free speech is "not unlimited." "[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." Such restrictions on speech are valid, "provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information."

Courts draw a clear line "between content-based and content-neutral regulations of speech." "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." A content-based law "'on its face' draws distinctions based on the message a speaker conveys," or has the purpose of suppressing speech "because of disagreement with the message it conveys." Regulations that "target speech based on its communicative content … are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Similarly, when the government compels an individual to engage in speech the individual otherwise would find objectionable, this ordinarily constitutes a content-based regulation triggering strict scrutiny.

By contrast, a law is content neutral if it "serves purposes unrelated to the content of expression … even if it has an incidental effect on some speakers or messages but not others." "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'" A content-neutral regulation is subject to intermediate scrutiny, meaning it must merely be "narrowly tailored to serve a significant governmental interest." In general, statutes "directed at commerce or conduct" do not violate the First Amendment, even if they impose "incidental burdens" on speech or inherently expressive conduct.

The MHRA neither compels speech nor targets speech based on its content. In fact, the law says nothing about speech at all. The Public Accommodations Provision prohibits "deny[ing]" individuals the full and equal enjoyment of goods and services; the Business Accommodation Provision speaks of "refus[ing] to do business with" or "discriminat[ing]" against persons based on a protected characteristic. Neither provision "on its face" regulates speech or draws distinctions based on a speaker's message. Instead, the law "regulates conduct, not speech." "It affects what [businesses] must do—afford equal [treatment] to [customers]—not what they may or may not say." …

By the court's logic, because the MHRA prohibits the Larsens from operating their public accommodation to provide only services to opposite-sex couples, it "compel[s] them to talk about a topic they would rather avoid—same-sex marriages." The court attempts to analogize the MHRA to the statute challenged in Tornillo, a law that required newspapers to print a free reply to any candidate "assailed" by the paper. But that analogy fails from the start. That a law regulating the content of a newspaper was deemed a content-based regulation of speech has no bearing on whether a law regulating discrimination in places of public accommodation also so qualifies.

The court's opinion relies extensively on Hurley, which dealt with application of Massachusetts's public accommodations law to a privately organized parade. But the court's discussion of Hurley omits a few crucial details. In Hurley, the Supreme Court made clear that a public accommodations law "does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds." … [T]he Court also stated that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." Of course, if public accommodations laws were content-based regulations of speech, they would not "as a general matter" be constitutional. Instead, they would be "presumptively unconstitutional."

The  Supreme  Court  ultimately  concluded that applying the public accommodations law to the parade in Hurley did not withstand constitutional scrutiny. But it did so because Massachusetts was attempting to apply the law "in a peculiar way." A parade is, by definition, an expressive association. That a parade's participants "are making some sort of collective point, not just to each other but to bystanders along the way," is what distinguishes a parade from a mere stroll down the street. The issue in Hurley was not whether gay and lesbian individuals could march in the parade—they were welcome to do so—but whether a particular gay and lesbian organization would be permitted to march in the parade with a banner that organizers felt contravened the parade's message. Applying the statute to require the parade sponsors to allow the banner made a public accommodation out of "the sponsors' speech itself," and treated the sponsors' exclusion of the message as discrimination against a class. By applying the law in a way that "alter[ed] the expressive content of their parade," Massachusetts violated the parade sponsors' autonomy as speakers.

Hurley thus stands for the proposition that a facially neutral law may be subject to strict scrutiny if it is applied in a way that materially burdens the speaker's "autonomy to choose the content of his own message." In Dale, the Supreme Court similarly applied strict scrutiny to a facially neutral New Jersey antidiscrimination statute that required the Boy Scouts to retain a gay scoutmaster because doing so "would significantly burden the organization's right to oppose or disfavor homosexual conduct," which was one of "the ideas that the organization sought to express."  In cases where the law's application did not significantly impair the ability of the speaker to convey his chosen message—such as when the expressive association's basic goals are unrelated to the desired exclusion—the Court has found no First Amendment violation. For example, in Roberts, the Supreme Court declined to hold the MHRA invalid because "the Jaycees … failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association." In each case finding a compelled-speech violation, the violation "resulted from the fact that the complaining speaker's own message was affected by the speech it was forced to accommodate."

Here, taking the complaint as true, the Larsens cannot show that viewers of TMG's wedding videos would be likely to understand them to be expressions of the Larsens' "particularized message" about marriage. The complaint alleges that the Larsens want to be for-profit wedding videographers, not independent filmmakers. Although an artistic endeavor, wedding videos—like other expressive wedding services—do not primarily reflect the views of the videographer, but of the couple getting married.

The Larsens acknowledge as much in their complaint: "When an engaged couple asks the Larsens to help them celebrate their marriage, the Larsens want to tell a story of their love and commitment …." Although the Larsens may exercise editorial control over TMG's services, it is still ultimately the couple's story that is being told, not that of the Larsens. "[R]easonable observers would not perceive [the Larsens'] provision of … services for a same-sex wedding ceremony as an endorsement of same-sex marriage." By selling its services to the public, TMG "functions, in essence, as a conduit for the speech of others," necessarily subordinating the Larsens' own messages to those of their customers. For better or worse, "[o]nce [TMG] enters the marketplace of commerce … it loses the complete control over its [speech] that it would otherwise enjoy if it confined its affairs to the marketplace of ideas." Whereas the application of Massachusetts's law in Hurley improperly transformed the parade sponsors' speech into a public accommodation, here it is the Larsens who are affirmatively declaring their speech to be a public accommodation by selling their videography services on the open market….

The court's opinion warns, supra at 10, that applying intermediate scrutiny to the MHRA would invite government regulation of "wide swaths of protected speech." Hardly. A law telling an independent artist what pictures to paint or a newspaper what articles to publish would still be subject to strict scrutiny. But an independent artist who chooses what to paint and then sells the finished product is not the same as a boardwalk cartoonist who offers his services to any passing beachgoer. If the cartoonist refuses to paint the portrait of an interracial couple or a woman in a hijab, the state's regulation of that expressive conduct via a content-neutral statute does not trigger strict scrutiny. The Larsens are free to use their talents to create independent films about marriage that express any message they choose, and they are free to sell those films to the public. But if they offer wedding-video services to the public, they must abide by public accommodations laws like the MHRA.

Because the MHRA is content neutral and is not being applied in a manner that substantially burdens the Larsens' right to express their own message, it is subject to intermediate scrutiny….

Although intermediate scrutiny is the applicable standard, the MHRA would survive even strict scrutiny…. In general, public accommodations laws further compelling state interests of eradicating discrimination and ensuring residents have equal access to publicly available goods and services…. If eradicating discrimination based on race or sex is a compelling state interest,thensoisMinnesota'sinterestineradicatingdiscriminationbasedonsexual orientation….

The Larsens argue that no compelling interest is served by applying the MHRA to TMG because plenty of other businesses are happy to provide wedding- video services to same-sex couples. The argument that victims of discrimination are free to go elsewhere carries little force. Antidiscrimination laws like Title II and the MHRA were not passed to ensure that members of historically discriminated groups had access to some places of public accommodation. They were passed to guarantee equal access to all goods and services otherwise available to the public. "Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color." Even accepting the premise of the Larsens' argument, applying the MHRA to wedding- related services across Minnesota would still further the state's compelling interest in eradicating sexual-orientation discrimination in Minnesota's rural areas. Although many alternative wedding venues and services may be available in larger cities, the same may not be true in small towns. The pain of discrimination is undoubtedly more severe when it comes from the only videography service in the area.

The court's opinion asserts that while regulating discriminatory conduct may be a compelling state interest, regulating the content of the Larsens' speech is not. But the MHRA regulates only discriminatory conduct; the sole reason that the Larsens' expression is even tangentially affected by the law is because the Larsens make their speech available as a service for other members of the public to hire. When the government requires those services to be available to everyone, it is not forcing them to speak. Likewise, it is not an abridgment of the Larsens' freedom of speech to prohibit them from posting messages on TMG's website stating that they do not serve same-sex weddings….

 

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  1. Is there a word or two missing from the headline?

  2. Yes, sorry, fixed.

      1. Spam? A substantive comment that fails to appreciate the limitations of its audience? Or a joke that I’m missing? Enlighten me, dear readers!

        1. says “Whatsapp Omar” according to Google translate

        2. Float over the hyperlink. Definitely spam.

          Don’t know what’s been going on with Reason’s spam blockers the past few days but they are definitely falling behind.

  3. These issues really aren’t as big a deal as the headlines make them. They affect a relatively small number of professions in which there is a dispute about whether conduct is expressive or not. There really aren’t that many of them. And it really doesn’t matter that much which side of the line each fact-specific claim falls on.

    If the dispute about which conduct was expressive or not was broader in scope – if there was a question about whether educational institutions had any sort of privilege, for example – then the social impact could potentially be much wider. But that path appears to have been foreclosed by University of Penssylvania v. EEOC, which in holding that educational institutions’ academic freedom gives them no first amendment protection with respect to discrimination claims regarding tenure decisions, significantly (although not completely) limited the kind of conduct that could be protected by a first amendment claim in a discrimination case.

  4. This seems pretty easy to distinguish from the cake cases, where reasonable people can disagree about whether making the cake is sufficiently expressive to fall under the First Amendment. So it’s a little disappointing to see the ACLU weighing in on the side of compelled speech.

    1. Disappointing yes, but not surprising. The ACLU is not a liberty minded organization. They are a leftist one.

      1. They were, for a while, a liberty minded organization. One with a left-wing tilt, to be sure, but they were that. For a while.

        Because, while they’d been founded by communists to defend the liberty of communists, they’d found the best way to do that was to defend everybody’s liberty, and doing that had attracted a lot of people who had a greater devotion to liberty than left-wing politics.

        But as was inevitable, they eventually faced a situation where being liberty minded and being left-wing came into conflict, and they had to make a choice. And they chose being left wing over being liberty minded.

        It’s been a downhill slide ever since.

        1. Pretty much. I remember they filed an amicus brief during Gratz and Grutter, so they’ve supported racial preferences for at least that long. And they’ve never supported the 2nd Amendment. Or rather, they do in their own mind, but the version of the 2nd Amendment that has no actual effect.

    2. Not shocking, mind you. Just disappointing.

      “Even antidiscrimination laws, as critically important as they are, must yield to the Constitution.”

      Indeed, and I wish more courts would recognize that. And recognize that the 1st amendment isn’t the whole Constitution, either. There are other parts of the Constitution anti-discrimination laws can violate, too.

    3. Making the cake has never been the issue; it’s decorating the cake that has been the problematic LGBTQERTYASDFWTFLOLBBQ forced-expression part.

      1. Decorating the cake is part of making the cake.

      2. Hmmm, none of the cases have been about the design of the product. The customers were refused purchase of the product completely no matter its design.

        1. In the Masterpiece case, the baker offered to sell them a blank cake and the decorations they could put on it themselves.
          It was ENTIRELY about forcing the baker to design and implement something against his religion.

          In this case, if it isn’t about the design, editing, and creative choices, why were they hiring a video editor? If all they wanted was a camera to make recordings, they could rent one – no need to hire someone who charges much more for their expertise is choosing the shots, setting the scene, editing the video…
          The fact that they hired an expert in artistic video creation is excellent evidence that they had an artistic video in mind.

          1. Technically nobody’s hired them in this case, or even tried to hire them. They are seeking an injunction preventing enforcement prior to beginning to offer their services for weddings.

        2. It’s a fairly straightforward legal case. If there was a cake in a display case, they cannot be banned from buying it. However, making a custom cake is an artistic expression, and is therefore, speech. Various bakers have given suggestions about what they are comfortable with.

          1. And if they are selling ‘speech’ then any customer can buy the ‘speech’ they do offer for sale to the public. So any customer can buy the straight wedding ‘speech’ and use it according to their own beliefs, right?

    4. I disagree that courts should be analyzing each and every element of a wedding service to decide which elements are “sufficiently expressive” to warrant First Amendment protection. Especially when reasonable people can disagree.

      E.g:

      A cake decorator can be required to produce an iced sheet cake, but tiered cakes are protected speech.

      A florist can be required to provide arrangements with 2 flower types, but 3 or more is protected speech.

      If the wedding party provides the sheet music then the organist must perform, but if the organist chooses which instrumental version of a pop song the bride wants to walk down the aisle to it is protected speech.

      Smith needs to be readdressed. Trying to piece out which elements of public accommodation laws are “sufficiently expressive” to warrant free speech protection is a sloppy way of handling religious discrimination.

      1. Agreed. Ugly as discrimination is, it is the lesser evil when compared to the consequences of enforcing anti-discrimination as a matter of law.

    5. “So it’s a little disappointing to see the ACLU weighing in on the side of compelled speech.”

      One of their lawyers was terribly concerned when Cass Sunstein published in a disfavored media outlet.

    6. You forget that the first two clauses of the First Amendment protect religious liberties, so yes, the cake cases fall under the First, whether speech or not. That the courts choose to ignore those first two is tragic, indicative of the sad state of the legal profession.

  5. For those who think this, or flower arrangements, or cake decorations, aren’t expression and thus not deserving of 1st Amendment protection, ask yourselves this: is it tberefore Ok to outlaw certain designs that displease those in power? The left, correctly and proudly, was instrumental in pushing freedom of expression in court cases over the last 50 years.

  6. “the sole reason that the Larsens’ expression is even tangentially affected by the law is because the Larsens make their speech available as a service for other members of the public to hire. When the government requires those services to be available to everyone, it is not forcing them to speak.”

    That’s funny stuff right there.

    1. The issue is they freely offered to sell their ‘speech’ for cash money to people of all creeds, and creed includes “beliefs, observances and practices” and for many beliefs one of those practices is the blessing the union of same-séx couples.

      Why did they make the offer to the public – people of all beliefs – if they had no intention of actually fulfilling that legal commitment? Their legal violation is making a fraudulent public offer in the first place. And if they were Baptists and only sell Baptist-compliant ‘speech’, why are they marketing to the public – Baptists and non-Baptists – to begin with?

      1. “The issue is they freely offered to sell their ‘speech’ for cash money to people of all creeds”

        No they didn’t.

        ” Their legal violation is making a fraudulent public offer in the first place.”

        Then I suspect they would be the defendants instead of plaintiffs seeking injunctive relief.

        They never made a fraudulent public offer. They don’t make wedding videos at the moment, and only want to make wedding videos of straight weddings.

        1. Any public offer in the US is offered to people of all creeds as per federal and state laws.

          And if this is all a hypothetical, then you are saying they aren’t going to offer the public the sale of wedding videos compliant with state and federal civil rights laws? We can’t discuss what they intend to do as if they were actually going to do it?

          If they only sell [their beliefs] compliant services they can’t make a public offer of them since people of all beliefs have a right to buy what they offer regardless of their beliefs. Straight wedding cakes, videos, and flowers work just find no matter what sexes the couple are at the straight wedding.

          1. “And if this is all a hypothetical”

            Nobody said this is a hypothetical. If this was a hypothetical, the court wouldn’t have heard the case.

            “then you are saying they aren’t going to offer the public the sale of wedding videos compliant with state and federal civil rights laws?”

            No, I’m saying they are going to make wedding videos of straight weddings in compliance with state and federal civil rights laws and the Constitution, as the decision explains.

            “If they only sell [their beliefs] compliant services they can’t make a public offer of them”

            Sure they can.

            1. No, they can’t limit the service by a civil rights category adjective. Can a deli only sell ‘white/Christian/Irish’ sandwiches? No.

              They sell wedding videos. Even with the excuse of ‘speech’ if the customers are happy with the ‘speech’ they do sell, they can buy and use it according to their own beliefs.

              1. Can a deli only sell ‘white/Christian/Irish’ sandwiches? No.

                Only because discrimination based on race, religion, and national origin are protected under state nondiscrimination laws.

                A deli could choose to only sell to people with brown eyes, or only to people with black hair. Those are not prohibited by nondiscrimination laws.

                1. Exactly. The people have recognized civil rights and the treatment of the public mustn’t be different regardless of them by the business.

              2. “Can a deli only sell ‘white/Christian/Irish’ sandwiches? No.”

                Jewish delis hardest hit. Or maybe Irish bars? Mexican taquerias? Chinese buffets?

          2. Are you trying to argue that they don’t have a Constitutional right to choose what speech to make, because it violates Federal law?

            1. No, they can sell any speech they want, but any customer can buy that speech and use it according to their usage, If they only say ‘straight’ things with their product and the customer is happy with that they can buy that ‘straight speech’ for use with their gay wedding.

              They can’t say they won’t sell the speech they do sell to customers because of a civil rights category.

              1. But you are basing your claim that they must sell any service to anyone on your interpretation of Federal and State law, and then claiming that overrides the videographer’s Constitutional rights.

                1. There is no Constitutional right to operate illegally as far as I know. Any product they offer the public must be available for purchase without differing treatment regardless of recognized civil rights.

                  Again, “I want the same message you’ve sold to others” if they are in the message selling business. They can then use that purchase according to their own beliefs. Obviously the business can’t judge the customer’s beliefs unacceptable, right?

                  1. I can’t tell if you don’t understand what you are saying, or are being deliberately obtuse.

                    If there is a Constitutional right to something, any law that would attempt to make doing that something illegal is invalid. You are claiming that the law overrides the Constitution – but it doesn’t work that way.

          3. So you believe that the owner of the Red Hen restaurant violated Sarah Huckabee’s civil rights by refusing to serve her and the people she was with?

            1. Is being Sarah Huckabee a civil right? Nope. A business could say ‘we don’t serve Harvey Mosley’ and no law is being broken as far as I know.

          4. Any public offer in the US is offered to people of all creeds as per federal and state laws.

            Your argument is circular.

      2. Wouldn’t it also be illegal to market as only serving Baptists?

  7. 2 freedom loving GOPers in the majority. If Clinton had won in 2016, this excellent decision would not have happened.

    1. But hey, at least two gay men would have a right to have unnatural sex in a women’s bathroom, while the rest of us are forced to watch and appluad

    2. Thank God the bigots won! And thank the Republicans!

      (I America is becoming less bigoted, less white, less religious, and less rural, however, Republicans may not like the reward provided by an improving America for the resolute protection of the intolerant and backward.)

      1. Both of you trolls, please stop. None of us believe that either of you actually believe a word you are saying.

        1. Speak for yourself. I’m inclined to think they both believe what they’re saying.

      2. And less rich. A non-white America will be poor.

  8. “Hello, I hear you make religious videos.”

    “In a sense – we help people who are disillusioned by organized religion to make videos about how much religion sucks.”

    “Great, I’d like to hire you to make a video for my my ministry. The name of my video will be America Needs To Return to Jesus.”

    “As I just said, we make videos *against* organized religion, not *for* it.”

    “So you’re discriminating on the basis of religion? See you in court!”

    1. As applicable as a business that only makes white superiority videos. If this ruling stands, the excuse of ‘speech’ can be used to limit the sale of just about anything made after the order for a particular customer.

      1. What if the dissent prevails? Would the come-to-Jesus guy have a case?

        1. He would have a case, but not a winning one.

          If we accept the ‘speech’ argument as valid the business can refuse to ‘say’ a pro-religious message. What they can’t do is refuse to sell the customer an ‘anti-religious message’ even if they are going to use it as an example of the ‘Devil’s work’ at their pro-religious rally.

          •The business can limit the speech they sell according to their beliefs, eg not put a Scripture on the cake they don’t agree with
          •The customer can use use their purchase of speech the business would sell according to their own beliefs, e.g. put a Scripture on their purchase.

          1. “What they can’t do is refuse to sell the customer an ‘anti-religious message’ even if they are going to use it as an example of the ‘Devil’s work’ at their pro-religious rally.”

            OK, fair enough, I guess, the analogy in this case would be a gay couple wanting to buy a video of someone else’s “straight” wedding, which I presume would have raised no objection, and not led to litigation.

            1. In Masterpiece, this was when the straight parents asked for the baker to make the cake for the gay wedding.

            2. Actually they can buy a ‘straight wedding’ package with its invisible ‘straight’ message and use if for their same séx wedding. Just like straight wedding cakes serve just fine at gay weddings, ditto flowers.

              This ‘message’ argument is just a dog whistle for a right to judge the customer’s usage as unacceptable even if that usage is part and parcel of a civil rights class. Opening Pandora’s box because I will tell you the only reason I respect other’s beliefs is because they respect mine. Allow a business to invite the public and then religiously discriminate without regard to the religious freedoms of the customers they invited will lead to ruin.

              But I’m old so pass the popcorn – we are on the fast track to becoming the anti-America and watching people shoot themselves in the foot can be kinda fun.

              1. I’m not sure what makes a video of a gay wedding somehow “straight.” Nor am I sure how the cake and flowers at a gay wedding are “straight” cakes and flowers.

                The post summarizes the situation in this case this way: “Minnesota authorities interpret the state’s ban on sexual orientation discrimination in public accommodations as ‘requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all,’ and ‘[i]f the Larsens enter the wedding- video business, their videos must depict same- and opposite-sex weddings in an equally ‘positive’ light.'”

                How can this be a “‘straight wedding’ package” with an “invisible ‘straight’ message”? I can’t see it – perhaps because it’s invisible.

                1. (And if the Minnesota government is right, I’d think the ‘come to Jesus’ guy in my hypothetical scenario would likewise be able to insist that the anti-religion videographer make a video which puts Christianity in just as positive a light as criticism of Christianity.)

          2. I’m sorry, but you are ignoring the context to split a hair that doesn’t exist.

            “You must make a video, but the client cannot force you what to say” That is nonsensical. You are not making what the client requested. This has already been suggested in the cake shop cases, where they could purchase a cake but he wouldn’t decorate it for them. That was widely considered unacceptable

            1. Yes you are, the client wanted a wedding video, with the same objective features as those previously sold. They want to include the invisible, mandatory, ‘straight’ message, have at it, as long as it looks the same as others sold. Civil rights only limit conduct.

              And yes a business can have messages they won’t say – the Safeway bakery even has a long list of things they won’t put on a cake. And the case you are mentioning was I think the CO business that would make the Bible shaped cake but not put homophobic Scripture on it, which is of course the decorator’s own right to freedom of religion. But the customer could still by the non-homophobic cake and use it for homophobic purposes.

              The customer can buy a non-homophobic cake and use it for homophobic purposes just as the customer can buy a straight wedding video package and use it for a gay wedding.

              (Yes they are just trying to find a way to discriminate by belief and sexual orientation – but still, the customer can buy what they sell without civil rights discrimination and use it according to their own Constitutional rights.)

              1. “They want to include the invisible, mandatory, ‘straight’ message, have at it, as long as it looks the same as others sold.”

                I’m still not sure what an invisible straight message would look like (of course it would be invisible, so I guess it wouldn’t look like anything).

                1. Neither am I but they claim it is part of the ‘message’ they are selling. Fortunately a video that had that ‘message’ but just had a gay couple marrying would work just fine. Just like a ‘straight’ wedding cake works just fine for a gay couple getting married, etc.

                  1. I’m still unclear what you think of my “America Needs Jesus” video example.

  9. Are they going to make it clear they religiously discriminate in who can buy their wedding services? That would seem to be a minimum requirement. They can’t invite the public to come buy – people of all beliefs – and then tell some of the responding public “sorry, we don’t sell that to people who practice your beliefs.”

    Can an Aryan Church member business owner refuse interracial marriages? Can a Christian owned photography studio refuse to film an Islamic wedding? Atheist?

    Is there a civil right to buy offerings of public accommodations even if you don’t share the creed of the business owner or not?

    1. Yes, as long as it is not a pretext for discrimination.

    2. Certainly this decision means that a Christian videographer can refuse to film an Islamic or atheist wedding, and vice versa. And that seems to me entirely correct.

      The dissent, of course, would take the opposite view, and would conclude (for instance) that “a boardwalk cartoonist who offers his services to any passing beachgoer” (in the sense that he draws most beachgoers, even if not really “any one”) may not “refuse[] to paint the portrait of an interracial couple or a woman in a hijab.” Presumably, he couldn’t refuse to draw the beachgoer’s cross necklace, if he were willing to draw other jewerlry the beachgoer was wearing. Yet it seems to me that people have a First Amendment right to decide what cartoons to draw, even if they’re in the business of drawing such cartoons for passersby.

      1. “correct”? They can invite the public – everyone of all beliefs and every other civil rights category – and then – after the fact – tell some of the customers that their civil rights quality isn’t respected by the business and they will not be sold the advertised product?

        That is hardly ‘correct’. Civil rights were recognized to eradicate such invidious discrimination.

        1. Slavery was a government institution. So was Jim Crow segregation.

          The Civil Rights act would have been wonderful if it had merely eliminated government bigotry. But it swung the other way, mandating new government bigotry and new public bigotry and destroying freedom of association.

          1. The business invited the public – they chose their association at that time. If they only wanted to associate with a sub-set of the public they would do as BSA and Hurley suggested – have a private membership business and make any offer of sale to the membership, not the public.

            1. That might not have the result you like.

              This videographer (and Masterpiece Cakeshop etc.) might just become membership only businesses.

              Of course, membership would be simple and free. If the business didn’t recognize you as a member, they would ask if you were a member. If you asserted you were, they would take your word for it. If you said you were not, they would point you at a sign or a laminated card with a “membership agreement” and ask if you agreed and wanted to join. If you didn’t agree to join, the business would refuse to sell you anything because you were not a member. If you did agree to join, you would do so by just saying “yes”.

              Any member could buy products per the membership agreement – which would include the proprietor’s right to use discretion and refuse to sell a product to a member for any or no reason including because the event the product was being used at/for conflicted with the proprietor’s religious beliefs.

            2. Neither the Boy Scouts or the Saint Patrick’s Day Parade were considered private organizations. Both were held under state law to be places of public accommodation.

              1. Yes they were and the SCOTUS said they were NOT public accommodations. Again, no one is saying a business that market to ‘less than everyone’, i.e. the public, has to obey civil rights laws. Even if there was disagreement on that, the two cases noted make it clear that one thing that can organize that way is by belief.

                Fine. Private membership business, find the ‘right’ members, make the invitation of sale to the membership.

                Problem solved.

                What they can’t do is invite the public – everyone – and then tell some of the responding customers that they are going to be treated differently because of creed, séx, sexual orientation or the rest.

                1. SCOTUS said they were NOT public accommodations

                  Citation, please.

                2. Yes they were and the SCOTUS said they were NOT public accommodations.

                  False.

            3. Oshtur continues to not understand the laws he is commenting on.

        2. “That is hardly ‘correct’.”

          Obviously, you feel strongly about this. Even to the point of overlooking fairly persuasive arguments to the contrary because of what you think of as the ‘correct’ answer.

          “Civil rights were recognized to eradicate such invidious discrimination.”

          But as many courts have stated, civil rights legislation (and all other legislation) must yield to the Constitution.

          1. Where in the constitution does it say a business can make a fraudulent public offer?

            And the arguments aren’t persuasive at all since the ‘speech’ is invisible. The business’s ‘speech’ they have sold would work just fine no matter what the sexes of a couple getting married are. If that speech is available for sale then any customer can buy it and use it according to their own beliefs, right?

            1. Strawman much?

              1. Never. Offering the public the sale of something without different treatment regardless of civil right class is the legal standard. Saying you will sell something to the public presumptively legally with no intention of actually respecting the law is fraud, a fraudulent public offer.

                Again, the public can buy what is offered without civil rights discrimination. If they only sell ‘straight’ wedding videos the customers can buy that and just have have a gay couple just like one can buy Kosher beef and use it for bacon cheese burgers without civil rights discrimination by the business.

                1. Services like this videographer or a baker of custom cakes are NOT offering a specific “something” to the public. Each transaction is negotiation between what the customer wants and what the creator is willing to do. If the customer wants something in the video – say flashing lights, or loud noises – the creator can refuse. Similarly, the creator may demand a price higher than what the customer is willing to pay.
                  Refusing to agree to a contract because you do not like the terms of the contract is not fraud – not on the part of either party.

                  Notice that your claims have NOTHING to do with civil rights – you’re basing your claims here entirely on fraud.

                  1. And what is the customer wanting that hasn’t been sold to other customers? They can’t refuse them because of their creed allows same séx marriage, or their sexes, or their sexual orientation. They can’t refuse because the couple is homosexual anymore than they can because they are black.

                    But that is the issue, the customers what exactly what’s advertised which is available for purchase without discrimination to all creeds, sexes, and sexual orientations in the states involved.

                    And not entirely with the fraud is the thing it should be providing and has no intention of doing so is civil rights compliance.

                    1. They’ve never sold a video of that specific wedding to anyone, which is why the customer is asking for a new product, that has never been sold to anyone before.

                2. Everything you’re asserting with respect to how private businesses must offer services to protected classes without discrimination are just statutory laws passed by legislators. In the US Constitution, there are no such restrictions on private business transactions.

                  The rights being asserted by the proprietors of these businesses are rights under the US Constitution — which, of course, is “the supreme law of the land”. The rights being asserted have been incorporated onto the states by the Supreme Court. Hence, these Constitutional rights trump any state constitution, or federal, state, or local legislation.

                  1. And since there is no right to make fraudulent offers not sure where you are going with this. If their beliefs won’t let them sell something legally they are free not to offer it, just as the deli owner can to only sell Kosher meats and not pork. But if they do decide to offer the service then people of all beliefs can buy it without discrimination.

                    Now if you saying there is a right to religious discrimination in business I’m fine with that too. Its a tit for tat situation, don’t complain when business owners all start discriminating in the messages they will support by creed.
                    “No we don’t rent to evangelicals who pray at the common dining table, we don’t support messages of superstition.”
                    Yes, we do give people of our beliefs lower rates than others as our faith dictates, it would a sacrilegious message to do otherwise.

                    Hobby Lobby specifically said its ruling didn’t all for discrimination to be disguised as a religious practice, this will be saying its completely ok, doesn’t even need to be disguised.

              2. Ha ha, I guess “overlooking fairly persuasive arguments” is in the eye of the beholder.

            2. Where in the constitution does it say a business can make a fraudulent public offer?

              Even if they had made any offer like the one you pretend they did, that’s not what fraud means.

              1. Well the AG of Washington state disagrees since that is what Stutzman of Arlene’s Flowers did and the state is saying its fraud.

                “wrongful or criminal deception intended to result in financial or personal gain”

                Considering the business can be assumed to be running legally and it by policy is not, all profits it gains by such deceit would seem to fit the definition of fraud.

                How is it not?

                1. Well the AG of Washington state disagrees since that is what Stutzman of Arlene’s Flowers did and the state is saying its fraud.

                  False. Seriously, you don’t understand law, so you should probably avoid talking about it. There was no cause of action for fraud in the Arlene’s Flowers case. The cause of action was discrimination.

                  How is it not?

                  Uh, because nothing it is accused of doing meets the definition of fraud. The wannabe customers weren’t deceived, and of course their complaint is the exact opposite of what you’re saying. The business did not take any money from them.

      2. “Certainly this decision means that a Christian videographer can refuse to film an Islamic or atheist wedding, and vice versa. And that seems to me entirely correct.”

        Can a reason-based university announce that it refuses to hire faculty members who claim to believe that fairy tales are true?

        (Clingers hardest hit.)

    3. Are they going to make it clear they religiously discriminate in who can buy their wedding services? That would seem to be a minimum requirement. They can’t invite the public to come buy – people of all beliefs – and then tell some of the responding public “sorry, we don’t sell that to people who practice your beliefs.”

      Are you making up law, or are you just saying what you wish the law was?

  10. 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.”

    It’s my understanding that at least some Christians believe that only Christian weddings are valid. Others “contradict biblical truth.” I don’t know if the Larsens share that view, but if so would it be OK for them to refuse to work on non-Christian weddings?

    IOW, just how far should we go to let people ignore the laws in the name of religious belief? I’m not claiming there are no such cases, but I do wonder if there is a limit.

    1. The problem is the laws in the first place. If there were no such laws requiring slavery of business owners, these exceptions wouldn’t exist.

    2. I see that they refuse to “promote racism or racial divison,” but what if, say, an Aryan Nations couple wants to do a video of their white-supremacist themed wedding – assuming that the ceremony is based on the Aryan Nations religion. They could point to the willingness of this company to video interracial weddings as proof of the company’s “double standards” and “discrimination against minority religions such as ours.”

      Or for that matter, what if the couple’s religion is sadomasochistic, and has a ceremony where the man puts his foot on his new wife’s neck while the minister has the woman promise to “slavishly serve my husband in all things?” Could they refuse to film such a wedding because it degrades women, or would that be religious discrimination, too?

      1. I think they could refuse to film violent acts, or even simulated violent acts. I mean, to take an extreme example, they could refuse to do a film for Christians who wanted to do a particularly graphic reenactment of the Crucifixion.

        That wouldn’t be based on their religious beliefs but on other standards.

        1. Why not suppose that a secular videographer is willing to film horror movies but not passion plays?

          Anyway, what if the woman simply wears a dog collar and promises her husband to “be your dog,” but nobody does any violent acts for the camera?

          (I’m using weird hypothetical examples because that’s how the discussion has been going)

    3. The vast majority of Christians consider legal weddings valid whether the participants are christian or not. If you are not a Christian and you get married, your conversion to Christianity does not nullify your marriage, you still have to get a divorce, annulment, or what have you to marry someone else. If you have sex with another person while your current marriage is valid you are committing adultery. There is a very long tradition documented about this, 1800+ years old.

  11. So a videographer can refuse to film a Catholic baptism, even if the client was a non-Catholic offering to purchase the service for a Catholic friend.

    Is this what our Constitution requires?

    1. Michael Ejercito: Yes, I think our Constitution requires precisely that, just as a freelance writer can refuse to write items praising the Catholic Church even if he generally takes commissions to write items praising other religious groups.

  12. So the Larsons won’t shoot weddings if the couples had premarital sex because that would “promote sexual immorality”?

    Or do the Larsons selectively abide by biblical teachings when it suites their personal morality and political leanings?

    1. “selectively abide by biblical teachings”

      I’d think the First Amendment is all about having the right to have beliefs the government thinks are wrong – you can make up your own religion with parts of the Bible, parts of the Koran, and parts of the Kama Sutra, and that would still be a religion.

      So in the unlikely event they insist on proof that the married couple was continent until their wedding night, that would be their right – most Bible-thumpers would consider their beliefs wrong, but it would be under the 1st Amendment.

      1. Specifically, most Bible-thumpers would denounce the fornication, but would not refuse to let fornicators get married after a proper lecture on the difference between the two situations.

    2. “So the Larsons won’t shoot weddings if the couples had premarital sex because that would “promote sexual immorality”? ”

      Maybe they do. Such a refusal would not trigger any anti-discrimination laws I don’t think.

      They would have to ask though. The immorality [in their view] of same sex couples is immediately apparent.

    3. “selectively abide ”

      Sure, why not. They can believe some of the Bible, its not a all or nothing thing.

      I don’t buy high ticket German made items because of the Holocaust but I have occasionally bought small German made items. That is selectively abiding by my boycott principal.

      1. Thank you for doing your part to make my BMWs (German-made only) more affordable.

    4. So the Larsons won’t shoot weddings if the couples had premarital sex because that would “promote sexual immorality”?

      That doesn’t make sense even on its own terms. The wedding you describe would not promote sexual immorality; it would do exactly the opposite, by making the couple’s future sex martial.

  13. For those disagreeing with the 8th Circuit opinion, would the following facts be treated differently by you:
    Assume that a marketing/promotional company does promotional videos, and that the owners of this company have left-leaning viewpoints, so most of their business is for liberal advocacy groups. However, this company holds out its services to the public and will take on most any assignment that comes in. The NRA asks this company to do a pro-gun video that attacks gun control groups. The company is strongly in favor of gun control, and also does not want to upset it main customers, so it declines to do the job for the NRA.

    Of course, the NRA is not a protected group, but I’m curious if under these circumstances, people would argue that the marketing company should be forced to produce a video for the NRA because the company is a public accommodation and making the video for the NRA does not constitute forced speech

    What I’m really trying to figure out is whether it is the protected status of a customer as a gay person that trumps the free speech rights of the business, or if people are arguing that no free speech rights are being implicated here at all.

    1. If we pretend being in the NRA is a creed and the NRA wanted to buy a left-leaning video sure they should be able to buy what the business invites the public to buy and use it according to their own beliefs. If they would say what they said in a video for another client why shouldn’t the NRA be able to buy the same speech as other customer’s have bought? That speech was offered for sale to people without civil rights discrimination, right?

      1. In my hypothetical, the business is not selling left-leaning videos. They are selling the service of the creation of promotional videos at their customers’ request. It just so happens that the business owner’s viewpoint is liberal, and most of their customers happen to request left-leaning videos. The NRA is requesting that the business create a very far right-leaning video that strongly conflicts with the business owner’s viewpoint.

        1. So you have a customer not wanting to buy what was offered for sale? Be like going into a deli and asking to buy a pair of shoes then.
          Of course a ‘speech selling’ business doesn’t have to sell ‘speech’ they don’t offer for sale, but any customer can buy the ‘speech’ they do sell without civil rights discrimination and use it according to their own beliefs and needs.

          All these cases are about someone wanting to buy what the business does offer for sale – wedding videos, florals, cakes. If there is some sort of ‘speech’ involved the customer is more than happy to buy exactly the same ‘speech’ as the last customer (amazing thing – videos, florals and cakes – whatever they might ‘say’ – work exactly the same for the customer no matter what the sexes of the couple marrying are.)

          Unless, of course, this ‘speech’ excuse is just a dog whistle for ‘judgment of the customer’s usage’.

          1. This is why my hypothetical moved more into the direction of speech from your typical bakery or wedding videographer. If I have a talent for writing speeches, and I put up a sign outside my store that advertises, “speech writing services,” and then a KKK leader comes into my store and tells me he needs me to help him write a speech that will really get his klan fired up, I would hope that I can legally decline, even if I had no problem helping the last 99 customers with a variety of speech writing requests.

            1. Why do you avoid actual civil rights categories? The KKK can be refused at any time.

              Again, you can refuse to sell particular ‘speech’, you can’t refuse a customer purchase of ‘speech’ you do sell because of a civil rights class.

              A customer wants to buy an anti-religious ‘speech’ from a business for use in a ‘pro-religious’ way consistent with their beliefs they can.
              A customer wants to buy a ‘straight’ wedding cake from a bakery and use it for their gay wedding, they can.

              Customer can’t make them sell something they don’t sell, but they can buy what they do sell and use it according to their own beliefs.

    2. Of course, the NRA is not a protected group

      That should end the analysis and the marketing company should not be forced to produce the video. We need not reach the compelled speech question.

      That being said, if in an alternate universe (*) the NRA were a protected group, then yes if a videographer is required to produce videos for a same-sex marriage, then the marketing company would have to do likewise in your hypothetical.

      (*) The reason your slippery-slope argument fails is the political branches have the power to halt the tumble down the hill through the definition of protected groups.

      1. I doubt the NRA would ever be in a protected group (but there’s always Alabama I guess), but I wouldn’t be surprised to see legislatures eventually move to a regulatory scheme that prevents any public business from discriminating against any customer based on the customer’s beliefs or viewpoints. In other words, a “treat everyone equally” law.

        I didn’t really intend to make a slippery-slope argument. I was more trying to figure out the bounds of what would constitute forced speech versus a business just doing their normal job that nobody would misconstrue as the business advocating its own personal viewpoint.

      2. “(*) The reason your slippery-slope argument fails is the political branches have the power to halt the tumble down the hill through the definition of protected groups.”

        How can my constitutional right to free speech depend on statutes defining protected groups? If right now, the government can’t pass a law forcing a marketing group to make a video for the NRA, why would it matter if they passed a second law making the NRA a protected group?

        1. If right now, the government can’t pass a law forcing a marketing group to make a video for the NRA

          I was addressing phatty’s hypothetical in which we assume the 8th Circuit’s decision is wrong as a matter of law.

  14. As usual in these cases, not a single mention of the Thirteenth Amendment.

    1. Supreme Court says it doesn’t apply.

      They might be wrong, but circuit court judges can’t disobey their judicial betters.

    2. Why would it? The business invited the public to come buy the advertised service or product, expecting them to operate legally subsequently is not ‘enslavement’ anymore than expecting people to not jaywalk is.

      1. Plus, they’re getting paid for the work, and not being forced to do it for free.

        1. While I see little value in invoking the Thirteenth Amendment in these kinds of situations, some slaves got paid for most of their work, and many slaves got paid for at least some of their work. That didn’t make slavery (or even the paid portion) any less objectionable.

  15. In the absence of monopoly, the freedom of association should apply to all people, at all times, and in all ways.

  16. By the way, here is their Web site, where they invite the public to buy their services.

    https://telescopemediagroup.net/

    (Posted for information only, I’m not saying buy their services, just wanna give some background.)

    1. They don’t invite the public to buy their services. They invite the public to tell them about their event and what they are trying to accomplish. Even by the dissents standards this would seem to be more akin to a studio painter than a boardwalk cartoonist.

      1. Good point, I wasn’t studying the site carefully enough.

      2. Precisely – there is no defined “good” here. Each case is unique, and requires both parties to reach an agreement about what is to be done and what it will cost.

  17. I think the majority opinion did a nice job of summarizing what the disagreement is:

    Rather than serving as a forum for the speech of others, the Larsens’ videos will carry their “own message.”

    The dissent believes otherwise. I think it is a close call and is the crux of the case.

  18. I’m a bit puzzled about the dissent. It says, “The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others.” But the main opinion makes a point of saying that the government is not just requiring the Larsens make videos of both opposite-sex and same-sex marriages but to convey the same “positive message” in both. Would the dissent be satisfied if the Larsens agreed to take a commission for a same-sex marriage video and produced a video all about how the couple was going to hell for their sins?

    1. No, they are asking them to sell the same message they have sold to others. This isn’t an endorsement, this is a business selling ‘speech’ for money. Anyone wanting to buy their speech they do sell can buy it for their own use according to their own beliefs.

      1. You keep trying to make your message into the Larsens’ message. But the message THEY want to sell to others is to “capture the background stories of the couples’ love leading to commitment, the [couples’] joy[,] … the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.” They’re not saying they want to set up a camera on a tripod, hit record, and capture nothing more than a historical record of the ceremony. The couple could do that themselves, frankly. The Larsens are selling a compiled video of the couple’s love, background, life, and sacred vows. So the “same message they have sold to others” (or will sell, actually, since they haven’t sold anything and are just asking to set up the business) would include their view of the sacredness of the same-sex couple’s vow — namely that it is not sacred and they’re going to hell. The couple is free to “buy it for their own use according to their own beliefs,” which I guess would be a horrified “you’ll never believe what our wedding video is” post on Facebook, but the message the Larsens have said they want to convey is that opposite-sex marriage is a sacred covenant. You’re not asking them to convey the same message to everyone, you’re asking them to convey a message they don’t want to convey — that same-sex marriages are just as sacred as opposite-sex ones.

        1. ” the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives.””

          And that’s what the customer’s want too.

          ” would include their view of the sacredness of the same-sex couple’s vow — namely that it is not sacred and they’re going to hell”

          You realize that looks exactly the same as the opposite, right? Again, if that’s all the sell a customer can buy it without creed discrimination, right?

          “The couple is free to “buy it for their own use according to their own beliefs,” which I guess would be a horrified “you’ll never believe what our wedding video is” post on Facebook, but the message the Larsens have said they want to convey is that opposite-sex marriage is a sacred covenant.”

          They can do that in exactly the same way the do for others – show them at the altar, cutting the cake, etc. Again, you do realize their message is invisible to the eye and ear, right? That as long as their conduct, i.e. the physical parts of the video are comparable with the others they create, it really doesn’t make any substantive difference to the customer.

          No, no one is asking for any message they have’t said to anyone else – if they want to do a video that says ‘only same séx people can marry’ as long as it has the objective aspects of other videos the customer’s don’t care. Invisible messages really don’t upset customers as much as you think.

          If someone only sold straight wedding cakes I’d buy one and use it for my gay wedding – they look the same and that’s all that matters.

      2. No, they are asking them to sell the same message they have sold to others.

        No. My wedding video says “David Nieporent’s and his wife’s wedding is awesome.” Nobody else’s wedding video says that. (As far as I know. That would be weird.) Adam and Steve’s wedding video would say, “Adam and Steve’s wedding is awesome,” which is a different message.

        1. No, since the customer can ask for the same “David Nieporent’s and his wife’s wedding is awesome” or they can ask to have that part left out. Again, the message you are seeing is invisible to everyone by those who wish to see it. Your wedding video message works just fine no matter the sex’s of the couple marrying just a ‘straight’ wedding cakes and floral arrangements do.

          Either they are selling messages or they aren’t. If they are anyone can buy a message they have sold before.

          1. You aren’t even making sense any more.
            Invisible messages and films of other peoples weddings? All wedding videos are the same just like all cakes and all flowers?

            Please, sit down, try to compose a rational argument, then come back and state it.

          2. No, since the customer can ask for the same “David Nieporent’s and his wife’s wedding is awesome”

            Why on earth would anyone other than David Nieporent and his wife want a video saying “David Nieporent’s and his wife’s wedding is awesome”? I have never met anyone else who even wanted to watch that video, let alone pay for it.

            or they can ask to have that part left out.

            Then it wouldn’t be the “same message,” now would it?

            Again, the message you are seeing is invisible to everyone by those who wish to see it.

            Is English your native language? What does this even mean?

  19. Because this case was decided on free speech grounds, with religion irrelevant to that discussion, I wouldn’t decide the free exercise argument here. I would only decide cases where the free speech clause alone didn’t cover the conduct, so adding the religion clause could then make a difference in whether the plaintiff won or lost. I agree that there are a set of cases, like Yoder, that potentially represent a hybrid where speech and religion alone might be insufficient, but putting the two together creates something not possessed by either alone. But that doesn’t seem to be the case here. Here speech alone was enough.

  20. Who could have foreseen that the loony David Stras (R-MN and ex-clerk of Thomas, J.-Planet Claire) would write such an opinion, or that the amateur Federalists would nod their heads in unison that, yes indeedy, we respect all bigots who couch their inhumanity in the shabby rags of religion just like our forebears did.

    Apologies to Mr. Kirkland, I’m sure I’m out of order.

    1. That’s *Reverend* Kirkland. Have you no respect for man of the cloth?

  21. This sounds like a very particular kind of “wedding video”, and one where the 1st amendment claim is much stronger than it would be for the kind of video that I would imagine if I heard the phrase. I wonder if that’s a coincidence…

    1. It does? Sure, if you ask your cousin Bob to video your wedding, he’s probably just going to point a camera at the altar during the ceremony and then walk around the reception and point the camera at each table and ask the people sitting there to wave. But when you hire a professional, you get a professionally produced and edited video.

  22. So say the government wins and a video production company makes a video of a same sex wedding under protest but does it none the less. Then the same sex couple complains because the video doesn’t cast them in a “positive light”. They take issue with certain camera angles that make someone look fat and don’t like the lighting. What happens then? Does the HRC sit in a dark room with popcorn watching the whole video then rules like three movie critics? Does it end up like the porn cases of the 70’s “I know a positive light when I see it!”?

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