By Mike Steenson, Bell Distinguished Professor of Law at Mitchell Hamline.
Telescope Media Group v. Lucero is the latest case to address the collision between a state’s anti-discrimination law and the First Amendment rights of business owners to tailor the services they provide based on their religious beliefs. The case was a pre-enforcement action filed in federal district court by the Larsens. The Larsens sought to be exempt from the Minnesota Human Rights Act (“MHRA”) provisions prohibiting discrimination on the basis sexual orientation with respect to public accommodations and refuse to do business with, contract with, or discriminate in the terms, conditions, or performance of a contract on the basis of sexual orientation.
Angel and Carl Larsen “shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage.” They allege that they “retain ultimate editorial judgment and control” over the videos.
The Larsens wanted to make wedding videos, but they wanted to decline any requests for their services if those requests conflict with their religious beliefs. The Larsens “are Christians who believe that God has called them to use their talents and their company to . . . honor God.” Even though the Larsens explicitly said they will “‘gladly work with all people—regardless of their race, sexual orientation, sex, religious beliefs, or any other classification.’” The list of those they wanted to exclude included requests “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 first step in the exemption argument is establishing that the public accommodation is the wedding videography service the Larsens provide, not the simple sale of goods. The service includes the creative production of wedding videos. Second, that creation is expressive. That expression is speech. Third, interference with that creative expression through forced compliance with the MHRA is a content-based regulation of speech and it is compelled speech. That line of argument is short-circuited if the application of an anti-discrimination law is viewed as a conduct-based regulation. The dissent saw the MHRA as regulating conduct, with an incidental impact on speech, which would trigger intermediate scrutiny.
The religion issue arose by way of a hybrid claim based on the coupling of a free exercise claim with a freedom of speech claim—an exemption from the general rule the Supreme Court established in Employment Division v. Smith that application of a neutral and generally applicable law that substantially burdened the right to free exercise of religion would trigger only rational basis review. The majority acknowledged it was not clear that it would make any real difference in the end, given the position the court took on the freedom of speech claim. The dissent, however, concluded that the hybrid claim failed because the speech claim failed.
Interpretation and Future Effects
If Telescope Media is followed, owners of public accommodations that offer services with an expressive element will be able to establish that application of anti-discrimination statutes violates their constitutional rights by proving that they in effect are required to carry messages inconsistent with their religious beliefs. The broader that interpretation, the narrower the reach of the anti-discrimination laws. The court’s opinion, coupled with Justice Thomas’ concurring opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission establish the analytical roadmap for creating religious elbow-room in resisting the application of anti-discrimination laws that prohibit discrimination on the basis of sexual orientation in places of public accommodation. For a recent rebuttal, however, see the case State v. Arlene’s Flowers, Inc.
 936 F.3d 740 (8th Cir. 2019).
 Minn. Stat. § 363A.11, subdiv. 1(a)(1).
 Telescope Media Group, 936 F3d at 751.
 Id. at 748.
 Id. at 776 (Kelly, dissenting).
 494 U.S. 872 (1990).
 Telescope Media Group, 936 F3d at 760 (majority opinion).
 Id. at 776, 778 (Kelly, dissenting).
 138 S. Ct. 1719 (2018).
 441 P.3d 1203 (Wash. 2019) For the resolution, note that the petition for certiorari has been docketed in Arlene’s Flowers.