The U.S. Eighth Circuit Court of Appeals recently set out some new guideposts as courts face the thorny issue of balancing religious liberty and anti-discrimination laws. The case, Telescope Media Group v. Luthero, involved a husband-wife videography team, Carl and Angel Larson, who own and operate Telescope Media Group. The company creates “commercials, short films and live-event productions,” all of which require the Larsens’ editorial input about which projects to take on and the video, audio and text that will be used to depict the subject matter.
The Larsens want to add wedding videography to their list of services, but specifically for the purposes of promoting their view of marriage as a “sacrificial covenant between one man and one woman” and resisting the “current cultural narratives about marriage,” with which they disagree. Before they set out to make these wedding films, the Larsens wanted a court ruling stating that excluding same-sex couples would not subject them to liability under their state non-discrimination law, the Minnesota Human Rights Act (MHRA).
The Larsens had good reason to worry about liability; Minnesota argued in the case that the MHRA requires that if the Larsens are going to make any wedding videos, they must make them for everyone. The district court agreed with the state and dismissed the Larsens’ claims that MHRA violated their free speech and free exercise rights under the First Amendment. The Eighth Circuit said the district court had it completely wrong. In explicating why, the court highlighted several key factors. (Importantly, it focuses on the free-speech claim but says that it covers the free exercise concern, too, because the Larsens’ religious speech undergirds both claims.)
First, is the service at issue “speech” for purposes of the free speech clause? The Larsens argued that even though they weren’t going to make feature films, their videos were intended to convey a message designed to influence “‘public attitudes and behavior.’” Minnesota responded by saying that MHRA does not regulate the Larsens’ speech — it regulates their conduct.
The court found the state’s argument preposterous — yes, it said, making videos requires actions like positioning a camera and setting up microphones, but that “conduct” is all in the service of producing videos that communicate ideas. To follow Minnesota’s line of argument is to say that each action needed to make a video must be evaluated for “expressive” content. But if that’s the case, the court said, the government would be able to regulate “wide swaths of protected speech”: “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.” But in each of those cases, it is undisputed that the government cannot force “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.”
Second, does Telescope Media Group’s for-profit status make a difference in the constitutional calculus? Minnesota argued, for example, that MHRA affects speech only incidentally, because what it is principally regulating is “commercial conduct and economic activity” — the statute merely requires the Larsens to provide their wedding videography services to all customers, without regard to their sexual orientation. But the court found this argument problematic, too, noting first that the MHRA requires not just that the Larsens make the video but also that they depict all weddings in an “equally ‘positive’ light.” The statute actually coerces the Larsens to advocate a particular viewpoint; in legal parlance, the statute “compels” speech. The other problem with the state’s distinction between commercial activity and expressive activity is that in this case, the two are one and the same.
Third, does the government’s interest in preventing discrimination prevail? On this question, the court said that the interest in nondiscrimination is compelling and antidiscrimination laws are, in general, constitutional. For example, these laws are constitutional when they regulate conduct, which the court already explained was not the case here. Regulating conduct looks something like requiring an employer to take down a sign reading “white applicants only.” Or requiring servers in a restaurant to serve all customers, regardless of their race, gender or sexual orientation. Some speech is involved in these actions, but the impact on speech is incidental.
The court sees the Larsens’ case as obviously different than the above scenarios. What’s being regulated there, it explains again, is not conduct. In this case, MHRA is specifically being used to alter the Larsens’ “expressive content;” Minnesota is targeting speech itself. The court elucidates its points with some interesting analogies. It says if the MHRA is read the way Minnesota is advocating, it could 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.” The statute could also require that “an atheist musician perform at an evangelical church service.”
Fourth, are nondiscrimination and free speech equally important rights? Judge David Stras, in writing for the majority, notes that “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.” In other words, constitutional rights — for example, free speech (including religious speech) — are of higher importance than the right to not be discriminated against on the basis of sexual orientation. We heard about this concept recently when the U.S. State Department encapsulated it in its new Commission on Unalienable Rights.
The question at the center of the religious liberty culture wars is: Do religious believers engaged in for-profit businesses have to produce goods and services that violate their deeply held religious beliefs? Luthero answered this question in the very specific context of services that are undoubtedly expressive, but also provided a list of factors for courts to use in navigating other, more complex fact patterns.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: firstname.lastname@example.org.