Federal Judge Rejects MN Christian Couple’s Anti-LGBTQ Lawsuit

Carl and Angel Larsen of Telescope Media Group

Late last year Minnesota residents Carl and Angel Larsen filed a lawsuit challenging their state’s human rights act. Arguing state law unduly restricts them from discriminating against LGBTQ people in the course of their wedding services company, they sought a preemptive legal exclusion that would allow them to exclusively advertise to and serve heterosexual couples.

Chief U.S. District Judge John Tunheim dismissed their lawsuit yesterday in a 63-page ruling calling comparing effort to circumvent the Minnesota Human Rights Act (MHRA) to “conduct akin to a ‘White Applicants Only’ sign.”

The Minneapolis Star-Tribune initially reported on the decision:

In a 63-page ruling, Chief U.S. District Judge John Tunheim wrote that a provision of the Minnesota Human Rights Act (MHRA) prohibiting discrimination by businesses was not unconstitutional. Tunheim rejected the couple’s argument that the law amounted to “a state effort to stamp out expression opposing same-sex marriage.”

The Larsens, who use their Telescope Media Group to promote their Christian beliefs, want to go into the wedding film business, but serve only heterosexual couples.

Earlier this year, the Larsens asked Tunheim for a preliminary injunction shielding their business from potential penalties under the MHRA. On Wednesday, Tunheim sided with the state’s request that the suit be tossed.

Reacting to the judge’s decision, Kevin Lindsey – the Minnesota commissioner of human rights – said, “In the event an appeal is filed, the Dayton-Smith Administration will remain steadfast in ensuring that all people in Minnesota continue to be treated fairly by business owners.”

Back Story

As we reported in December 2016 when the Larsens originally filed their lawsuit,

[T]he couple doesn’t even work in the wedding industry at the moment meaning a judge would have to rule on the possibility – not documented instances – of being forced to violate their so-called ‘sincerely held religious beliefs.’ (Being a pre-enforcement case makes such lawsuits even more difficult to win in the realm of public accommodation law.) Their company (Telescope Media Group) is just now attempting to break into the wedding business and wants to exclusively serve heterosexuals as a part of that business.

In Minnesota, private businesses may not discriminate against customers based on their sexual orientation. That means any business seeking to do business in the free market agrees as a part of purchasing a business license to abide by the law in treating everyone – including LGBTQ people – equally.

The Larsens’ legal representation – the well-known Alliance Defending Freedom (ADF) – held a different view at the time the suit was filed.

“This is a right everybody has, not just a right in the realm of marriage,” said ADF attorney Jeremy Tedesco. “We wouldn’t want a Democratic speechwriter being made to write speeches for Trump under force of law or an atheist singer forced to sing Christian hymns at a church. These are choices creative professionals can make. The worry is if the government can take it away from people like the Larsens, what’s to stop it from taking away from everyone else?”

False equivalence aside, the actual lawsuit was fairly routine in terms of what ADF normally files on behalf of businesses. In the lawsuit they claimed the couple’s individual First Amendment free expression freedoms translate into a business First Amendment freedom that places them above existing public accommodation law.

According to the lawsuit:

The Larsens are deeply concerned that American culture is increasingly turning away from the historic, biblically-orthodox definition of marriage as a lifelong union of one man and one woman, and that more and more people are accepting the view that same-sex marriage is equivalent to one-man, one-woman marriage. [SNIP]

Specifically, the Larsens desire to counteract the current cultural narrative undermining the historic, biblically-orthodox definition of marriage by using their media production and filmmaking talents to tell stories of marriages between one man and one woman that magnify and honor God’s design and purpose for marriage.

That’s fairly standard – if not par for the course – for ADF lawsuits. It’s this part that offers a view into the Larsens’ (and ADF’s) motives:

By requiring that the Larsens celebrate same-sex weddings if they celebrate weddings between one man and one woman, Minnesota denies to the Larsens the means to convey their creative, religiously-motivated message about God’s design for marriage and compels the Larsens to express the precise message they wish to counter and with which they disagree.

Given the nature of the wedding industry and the fact that weddings are typically not open to the general public, the Larsens would not have access to and be able to capture weddings if couples did not hire them for their weddings.

The lawsuit sought to conflate the act of speech and protest with the process of commerce and profit.

Based on his decision in the case, Judge Tunheim appears to have seen through that smokescreen.

The Dismissal

“Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself,” Tunheim wrote in his decision. “As conduct carried out through language, this act is not protected by the First Amendment.”

He added, “The Larsens have an obvious, easy way to avoid hardship — the terms of their contracts are within their control, and state law does not compel them to contractually obligate themselves to post videos of same-sex weddings online.”

The lengthy decision holds additional interest as ADF is making similar arguments to the Supreme Court representing Masterpiece Cakeshop in another case where a small business owner is seeking to legally discriminate against LGBTQ people using ‘sincerely held religious belief’ as rationale.

ThinkProgress‘ Zack Ford noted:

Tunheim disagreed — vehemently. In his decision, he not only rejected all of their claims, he explained in detail — often in long footnotes — why the arguments just don’t hold up. ADF’s arguments to the Supreme Court as to why Phillips should be able to refuse to sell wedding cakes to same-sex couples are nearly identical to the Larsens’ claims that were just shot down in this case.

Here are the arguments tackled by Tunheim, as aggregated, explained and quoted by Ford:

  • It’s definitely discrimination based on sexual orientation
  • Announcing an intent to discriminate illegally isn’t free speech
  • Nondiscrimination laws do not implicate all speech-for-hire professionals
  • Nondiscrimination protections do not unfairly target expressive businesses
  • Nondiscrimination laws do not impose a double standard on those opposed to same-sex marriage
  • Anti-gay wedding vendors are still free to express their opposition
  • A “free speech expression” would undermine the entire point of nondiscrimination laws
  • Speech-for-hire products reflect the views of the customer

Ford’s entire article is worth a read.

One of Judge Tunheim’s strongest arguments against the Larsens (and ADF) – an argument certain to come up once the Supreme Court hears oral arguments in Masterpiece – related to the ideal that baking a cake, taking photos for, or selling any other goods or services to a same-sex couple for their wedding somehow constitutes endorsement of or participation in that wedding. He wrote:

The Larsens argue that the MHRA would not compel a wedding videographer supportive of same-sex marriage to create a video critical of same-sex marriage, and thus, the law is viewpoint-based. But this comparison is inapt, as Court cannot imagine any situation in which the MHRA would compel a wedding videographer to make a wedding video critical of any marriage.

It would, however, compel a wedding videographer hostile to opposite-sex marriage to serve opposite-sex couples, which would incidentally require them to create videos depicting opposite-sex weddings. Thus, as applied to wedding videographers, the law incidentally requires creation of wedding videos for all customers regardless of the customers’ protected status or the message depicted in the resulting videos.

He went on to add:

While the Larsens ask the Court to carve out a “free speech exception” to the MHRA, such an undertaking would leave a gaping hole in antidiscrimination law for expressive businesses. The fact that endorsing the Larsens’ requested exception would leave many customers unprotected from invidious discrimination illustrates that the exception would not make the MHRA more narrowly tailored. Instead, the proposed exception would amount to the Court privileging the rights of expressive businesses to avoid any and all incidental burdens on their speech-for-hire over the rights of customers to be free from discrimination – a compelling state interest. The First Amendment simply does not compel this type of policy decision, which is better left to the Minnesota Legislature.

Though their made-to-order (literally – they created a business and structured it explicitly to suit the lawsuit) failed as we predicted last year, ADF has already announced they intend to appeal.

 

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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