By Mike Mosedale
BridgeTower Media Newswires
MINNEAPOLIS — Husband and wife Carl and Angel Larsen of St. Cloud say they want to break into the wedding videography business. And as self-professed “Christian storytellers” who embrace what their lawyer calls a “historic, biblically orthodox definition of marriage,” the Larsens don’t want their company, Telescope Media Group, to be forced to make films about same-sex marriages.
That’s their right under the First Amendment, they say.
But in the opinion of the Minnesota Department of Human Rights, the Minnesota Human Rights Act clearly prohibits the Larsens — and any other for-profit business that offers services to the public — from turning away prospective customers on the basis of sexual orientation.
Those conflicting perspectives were front and center in dueling motions before Chief U.S. District Court Judge John Tunheim in Minneapolis last week.
The Larsens’s attorney, Jeremy Tedesco, asked Tunheim to issue a preliminary injunction that would block the MDHR from taking any enforcement action against his clients.
While the MDHR hasn’t pursued a case against the Larsens, Tedesco argued, an injunction is warranted because the mere possibility of enforcement effectively chills the couple’s speech rights.
“If they decline to promote views about marriage that violate their beliefs, they expose themselves to substantial fines and even up to 90 days in jail. Under any other circumstances, this kind of compelled speech would be intolerable,” said Tedesco, the senior counsel at the Arizona-based Alliance Defending Freedom.
Since its founding in 1994, the controversial nonprofit has waged legal battles against the so-called “homosexual agenda” in courts across the country, garnering praise from religious conservatives and the scorn of liberal advocacy groups.
It played a role in the litigation that led to the so-called Hobby Lobby decision, in which the U.S. Supreme Court struck down an Obama-era mandate that would have required that employers provide contraceptive coverage to female employees.
Tedesco said the MHRA is intended to prevent discrimination through the regulation of conduct, which he said the Larsens are not contesting.
Rather, he asserted, they are challenging the regulation of their speech through “peculiar execution of the law.”
The latter turn of phrase references the U.S. Supreme Court’s landmark decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, a 1995 case in which the high court held that the private organizers of a parade in Boston could not be compelled to include LGBT groups in the parade.
For the Larsens, Tedesco argued, the compelled speech at issue is more egregious than in Hurley because the MHRA “forces them to use their creative talents and editorial control to promote a message they don’t agree with.”
Viewed through the lens of Hurley, he said, it’s as if the Larsens were not only forced to allow an LGBT contingent to march in their parade but also been required to design its float.
That elicited a skeptical line of inquiry from Tunheim.
“If they’re simply providing services to individuals who wish to be married, how is that promoting a viewpoint?” Tunheim asked. While the Larsens say they want to put videos of all marriages they film on line, Tunheim continued, the state does not appear interested in compelling them to engage in any such promotion of same-sex wedding videos.
“But they still would have to produce videos they disagree with,” answered Tedesco.
Besides, Tedesco continued, the Larsens intend to require that all their customers agree to the posting of their marriage videos on the internet — a measure they say will “glorify God” and advance their view of marriage as the exclusive province of heterosexuals.
For her part, Alethea Huyser, Minnesota’s assistant solicitor general, urged Tunheim to dismiss the Larsens’ lawsuit. She began by noting that numerous courts have upheld the anti-discrimination provisions of public accommodation laws across the country.
“But the plaintiffs say they’re producing films that are inherently expressive. Why isn’t this [an example of] the state trying to regulate expressive conduct?” asked Tunheim.
Under the law, Huyser responded, the state only seeks to regulate who businesses sell to, not what they are selling.
Tunheim pressed further: “It isn’t exactly likely the plumbing supply store that decides it doesn’t want to serve certain individuals who are protected under the act. You have to admit there is an element of expression here, don’t you?”
Yes, Huyser acknowledged, wedding films can involve “expressive elements.”
But she then pointed Tunheim to the U.S. Supreme Court’s 2006 decision in Rumsfeld v. Forum for Academic and Institutional Rights.
In that case, a group of law schools unsuccessfully challenged a federal law that mandated they give access to military recruiters on the grounds that the requirement infringed on the schools’ First Amendment rights.
The court concluded that the supposedly compelled speech at issue was “incidental” to the larger conduct — the barring of recruiters from campus, Huyser said.
And even in its ruling in Hurley, Huyser noted, the Rumsfeld court “explicitly said these statutes do not target speech.”
In the challenges to public accommodation laws in other states, she added, courts have consistently refused to carve out exceptions for creative or artistic businesses whose owners claimed a refusal to serve gay customers ought to be protected as an expression of the business owners’ religious beliefs.
“The First Amendment protects our great freedom of speech,” Huyser said. “But as Justice [Ruth Bader] Ginsburg once wrote, the right to swing one’s arms ends where the other man’s nose begins. Plaintiffs have a constitutionally guaranteed right to hold their beliefs and to express them. But this case is not about beliefs and it is not about their speech. This case is about conduct — specifically, a course of conduct that invites the public to come buy their services and then says, ‘except you’ to a people of a certain sexual orientation.
“And that conduct is where the other man’s nose begins,” she concluded.
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