By: Ethan Groothuis
Ethan Groothuis is a managing editor for Volume 46 of the Mitchell Hamline Law Review and a 3L at Mitchell Hamline. Ethan’s article is the first article in our two-part Telescope Media series. Part II by Professor Michael Steenson will be published in January 2020.
Telescope Media Group v. Lucero, a major First Amendment and LGTBQ rights case decided earlier this year, brought a new question for the Eighth Circuit Court of Appeals: do anti-discrimination laws compel a Christian-based company to create weddings videos for same-sex couples?
Whereas Masterpiece Cakeshop—the high profile 2018 Supreme Court case with religious freedom claims—was ultimately decided based on the “hostility” of the Colorado Human Rights Commission and not the constitutional questions, Telescope Media is a more likely blueprint for future religious freedom and public accommodation cases.
Telescope Media Group, operated by Craig and Angie Larsen of St. Cloud, sued the State of Minnesota for provisions of the Minnesota Human Rights Act (MHRA) that they believed violated their rights to free speech and free exercise under the First Amendment. The Larsens wished to start filming weddings as part of their videography business. However, they wanted to decline videos for same-sex weddings because they refuse to partake in any service that would “contradict biblical truth; promote sexual immorality; . . . or promote any conception of marriage other than as a lifelong institution between one man and one woman.” Turning away services to same-sex couples is a violation of the MHRA, which states that it is unfair discriminatory practice to deny services in a place of public accommodation because of sexual orientation or to “intentionally refuse to do business with” someone due to their sexual orientation.
The 2-1 majority, written by the newest Eighth Circuit Judge David Stras, agreed with the Larsens on two of their First Amendment claims: compelled speech and a violation of their free exercise of religion under the hybrid-rights doctrine.
Wedding Videos as Compelled Speech
For the principal claim of compelled speech, the majority equated wedding videos to feature films, which is an already protected medium for communication and expression. Because the Larsens tell “healthy stories of sacrificial love and commitment between a man and a woman,” and depict marriage as a divinely ordained covenant, and oppose the “current cultural narratives about marriage with which [the Larsens] disagree,” their wedding videos are a medium that communicates ideas. More importantly for their claim, the court declared the Larsons’s wedding videos were speech, and compared the government’s argument that the creation of wedding videos was conduct to be like saying that “painting is not speech because it involves the physical movements of a brush . . . [or] that a parade is conduct because it involves walking.”
The MHRA, therefore, interferes with free speech, because not only would the government be compelling the Larsens to speak favorably about same-sex marriage, the MHRA would be doing so through a content-based regulation of speech, which requires strict scrutiny.
Judge Stras wrote that Minnesota cannot coerce the Larsens “into betraying their convictions” and promoting “ideas they find objectionable,” even if their views on same-sex marriage were provocative. To do so would both “[m]andat[e] speech that a speaker would not otherwise make” and “exact a penalty on the basis of the content of” speech.
The State, on top of arguing that the MHRA provisions were content-neutral and only required intermediate scrutiny, said that there is a compelling interest in people in Minnesota having a “full and equal enjoyment of public accommodations and services.” The court agreed, but looked to Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston as being illustrative to shutting down the public accommodations claim. In Hurley, organizers of a private parade were allowed to bar a group of LGBTQ individuals from marching because Massachusetts’s public accommodations law violated the organizers’ freedom of speech for “alter[ing] the[ir] expressive content.”
Judge Stras said that the Supreme Court drew the line in Hurley “exactly where the Larsens ask us to here,” stating that “the unmistakable message is that antidiscrimination laws can regulate conduct, but not expression.” This meant that the compelling interest of public accommodations was not narrowly tailored and failed strict scrutiny. This is despite the holding in Rumsfeld v F.A.I.R. that laws of general applicability regulate speech but impose only an “incidental burden” on expression still do not receive strict scrutiny.
Hybrid-Rights Claim: When Free Exercise Can Supercharge Freedom of Speech
On top of declaring the MHRA provisions failed strict scrutiny, the court also agreed with a second claim, which was that the Larsens would be prevented from freely exercising their religious beliefs if they created wedding videos. This free exercise claim was “not  typical” because the Larsens would either have to create wedding videos supporting same-sex marriage, or not create wedding videos at all.
Because the Larsens alleged that the MHRA burdens their religiously motivated speech, their claim is a “hybrid situation” in which “the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech,” can “bar application of a neutral, generally applicable law.” Judge Stras claimed that although “the claimants did not prevail under the hybrid-rights doctrine in Smith, the Court’s discussion of it was far from dicta.”
Since the court declared that the free-speech claim already required strict scrutiny, it was not clear if the hybrid-rights doctrine “will make any real difference in the end.” However, the district court was still ordered to allow the Larsens to develop their hybrid-rights claim on remand. The district court also must consider whether the Larsens are entitled to a preliminary injunction, which under strict scrutiny they would presume to satisfy.
Judge Kelly’s Dissent: An Unclear Deluge is Coming
Judge Kelly dissented, stating that the case should have been easily disposed of based on well-established principle, and instead is “carv[ing] out an exception of staggering breadth.” Specifically, she noted that although opposing same-sex marriage is protected by the First Amendment, “such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Calling the public accommodation under the MHRA a content-based restriction is a mistake, Judge Kelly declared that “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.” She warned that not only did the ruling “empower the Larsens to discriminate against prospective customers based on sexual orientation,” but the court case did not answer the question about any other wedding-related business, including “bakers, fashion designers, florists, graphic designers, tattoo artists, calligraphers, jewelers, chefs, tailors, or musicians” which would lead to a flood of litigation to weigh what professions were expressive enough to meet the new Telescope Media threshold.
Telescope Media and the Future of Religious Freedom Claims
In an opinion article to the Star Tribune, Attorney General Keith Ellison and Human Rights Commissioner Rebecca Lucero said that they would not be appealing the case to the U.S. Supreme Court because “the current makeup of that court means we’re not likely to win,” which would “make this kind of discrimination against LGBTQ people the law everywhere in America.” Instead, they will be returning to the district court to establish a set of facts “based in reality,” instead of the “fairy tale” spun by Telescope Media.
While Telescope Media might not be heading to the U.S. Supreme Court anytime soon, other cases will, and likely with this same blueprint, as opposed to the limited holding in Masterpiece Cakeshop. On top of the cases already heard in the 2019 term involving workplace discrimination, there are a variety of other cases as writs before the Supreme Court that are still pending including: Arlene’s Flowers v. Washington, the most similar to Telescope Media with a floral arrangement shop instead of wedding photography; Fulton v. Philadelphia, a case involving a Catholic adoption agency turning away married LGBTQ couples; and Ricks v. Idaho Board of Contractors, almost an inverse case for a man who believes sharing his social security number to be an independent contractor violates his religious beliefs, which could change how far public accommodations can go to protect religious individuals.
 Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019).
 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).
 Telescope Media Grp., 936 F.3d at 749.
 Id. at 748.
 Minn. Stat. §§ 363A.11, subdiv. 1(a)(1), 17(3).
 Telescope Media Grp., 936 F.3d at 747.
 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).
 Telescope Media Grp., 936 F.3d at 751.
 Id. at 752. (“Speech is not conduct just because the government says it is.”)
 Id. (citing Janus v. Am. Fed’n of State, City, & Mun. Emps., Council, 138 S. Ct. 2448, 2464 (2018)).
 Id. (quoting Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)).
 Id. at 754.
 Id. (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 572–73 (1995)).
 Hurley, 515 U.S. at 572–73.
 Telescope Media Grp., 936 F.3d at 756.
 547 U.S. 47 (2006).
 Telescope Media Grp., 936 F.3d at 759.
 Id. (quoting Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 881–82 (1990)).
 Id. at 760.
 Id. at 762.
 Id. (Kelly, J., dissenting).
 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (majority opinion).
 Id. at 763.
 Id. at 780.
 Keith Ellison and Rebecca Lucero, We will prove LGBTQ discrimination is not free speech, Star Trib. (Oct. 2, 2019), http://www.startribune.com/we-will-prove-lgbtq-discrimination-is-not-free-speech/562013122/ [https://perma.cc/PR9C-FKC7].
 State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019).
 Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019).
 Ricks v. State Contractors Bd., 435 P.3d 1 (Idaho Ct. App. 2018), rev. denied (Mar. 12, 2019).