The same sex marriage anti-discrimination v religious free exercise conundrum continues to vex courts. The more I think about this issue, the more I have found myself coming more forcefully down on the side of the consumer who seeks a service for a same sex wedding. It is not easy, however, as revealed in this latest decision from the Federal Court of Appeals, 8th Circuit, Telescope Media Group v. Lucero (Minnesota Department of Human Rights), No. 17-3352 (August 23, 2019).
In Telescope Media Group, a husband and wife team operates a for-profit corporation which provides video services to the general public. In providing these services, they work with customers to produce the videos. The business has stated its intention to start performing wedding videos to the public. The question was whether Minnesota's anti-discrimination laws, which state a for-profit business cannot discriminate on the basis of marriage or sexual orientation, applied to require the husband and wife's business, which is again a corporation, to produce both opposite and sex marriage videos on a non-discriminatory basis. The corporation, and the husband and wife personally, stated this went against the religious beliefs of the husband and wife, who adamantly oppose same-sex marriage.
When the wedding cake case was decided, I admit I said if the facts of that case were the gay couple wanted the baker to write a message on the cake which explicitly celebrated the two males getting married, mentioning their names, for example, I would have a harder time telling that baker the law forced him to write that on the cake the baker had made. I had a hard time getting around analogies such as, forcing an African-American baker to write onto a cake, "Happy Birthday, Nathan Bedford Forest, hero of the KKK" or telling a Jewish baker to write on a cake, "Happy Birthday, Adolf Hitler!" At some point, though, you want to say, Ya know, maybe our anti-discrimination laws don't require businesses to take on all customers for all reasons and purposes. And maybe free speech for thee may oppress free speech for me--as the right to not speak about something is as important as the right to speak about something; sometimes even more so. And really, is two gays wanting to marry really hateful? It is two guys committing to each other in a loving, romantic way. Sometimes, we must rein in our analogies.
The majority and dissenting opinions in the videographer corporation case are well worth the full read, as each shows how the two opinions evaluate and interpret the same case precedent. What I kept asking myself, as I read the majority opinion was, "So, if this couple operating their video making for-profit corporation wanted to put at the end of every video, 'This couple's marriage is consecrated in accordance with our Lord, Jesus Christ," would that be okay, too? If a Jewish, Buddhist, Sikh, Muslim, or atheist couple wanting to use their services objected, could the business legally say, "Love it or don't do business with us?" What would be the societal consequence of allowing this type of business to operate in this way? I can easily foresee Jewish, Buddhist, and especially Muslim and atheist couples having a much harder time finding a videographer around many parts of the nation, can't you? Lots of Christians in the US still talk about "Judeo-Christian heritage," but hardly any talk about "Judeo-Christian-Muslim heritage."
Nonetheless, I find my own argument not so easy to apply when the majority and dissent talk about a musician who plays weddings. Would a Jewish wedding musician guitarist, let's say the musician has incorporated his or her business, be forced to play at a wedding of two Nazis who will talk about how they found love by their mutual hatred for Jews? We may ask, Why would two Nazis wanting to get married want to hire a "Jew musician," but sometimes such folks hire "Jew doctors" or "Jew lawyers," don't they? Heck, I knew blatant racists in New Jersey who loved Motown music. We know anti-Semitism and racism, if not as often homophobia, works in mysterious and irrational ways, as one may reasonably call each of these prejudices irrational and, as the courts often say, "invidious."
The challenge is enforcing pluralism. When we enforce pluralism, we fall into the conundrum of forcing people who don't believe in pluralism to believe in pluralism. This slide show gives us a basic understanding of what I mean. However, what concerns me is this: If we don't enforce pluralism, we may find our society goes backward, as stated at pages 56-57 of the videograoher case's dissenting opinion, in terms of allowing discrimination to begin to thrive once again. What the cake baker case and this videographer case are showing us is what I have long worried about when trying to judicially carve out protections for homosexuality in a society only recently beginning to find what I can call enlightenment regarding the irrelevancy of same sex sexual conduct and opposite sex sexual conduct. What people do in their private lives in matters of sex should really be of nobody's concern. The question, however, becomes more public with a wedding, and, for awhile, I would side with libertarians saying, Get the government out of the marriage business so it is not entangled with individual people's religious views. But the baker case and this videographer case are not about the government entangling itself in religious philosophy in quite the same way. These cases are about a very secular idea that people who are not of a majority religion, people who are gay or lesbian, etc., have the same right to participate in society as those of the majority of people who are of a majority religion or are heterosexual--and the government enforcing that right against private businesses owned by people who oppose the minorities in those instances. The secular idea being enforced, again, is pluralism.
I tend to blanch at most "isms" as I find profundity within my old, now departed lawyer boss' view that every great idea becomes wrong when a majority of people agree with it. This glib remark contained a profound truth, which is we only get to see the abuse of an otherwise good idea when the majority of people begin to act as if the idea is a bedrock truth. One may easily say, Ah, let this anti-homosexual couple, with their closely held corporation, do what they want. There must be plenty of other videographers the same sex couple can find. But are there many choices for a same sex couple in many parts of our nation? And what happens when this viewpoint the videography service couple wish to express through their business becomes more and more "popular" in the region or area where the couple operates their business? What then? Is this case allowing for a setting up of enclaves where homosexuals are entering essentially "sundown towns" where they are not generally welcome? If so, then anti-discrimination laws may be rendered hollow and the people who were supposed to be protected are betrayed.
On the other hand, I keep coming back to the musician who plays weddings generally. May the musician say, "I only play Christian weddings? I won't play for Jews, Muslims, etc. because I won't play their songs?" Somehow, I find that a more difficult situation to resolve than the videographers in this case, though I would not call this videographer case so easy, either.
Interestingly, the majority of the 8th Circuit Federal Court of Appeals left itself open to revisiting this case, because of the fact the case came before it as a motion to dismiss, which requires the Courts to view the complaint's allegations as automatically true as to the facts alleged. At page 9 of the majority opinion, the majority of the Court of Appeals stated:
The dissent reaches the opposite conclusion, but only by recasting or ignoring the allegations in the Larsens’ complaint,3 which at this stage we must accept as true.See Miller, 688 F.3d at 933 n.4. The complaint makes clear that the Larsens’ videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control.
Footnote 3: The dissent is a moving target. At certain points, it seems to assume that the Larsens’ speech is protected, at least in some form. See post at 43; United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First amendment freedoms.”). At others, the dissent suggests that the videos are not speech at all, primarily because the Larsens are telling someone else’s story as part of a for-profit service. See post at 48-49. The dissent’s scattershot approach may be due to the fact that neither of these theories (or any of its others) finds support in Supreme Court precedent or opinions of this court.
The appellate court claims the complaint makes "clear that the Larsens retain ultimate editorial judgment and control." However, having dealt with a wedding videographer when The Wife and I married in 1987, and knowing how videographers work with wedding couples over the decades since, I don't recall videographers having any ultimate judgment and control over the content of a wedding couple's video. Most Jewish couples would not countenance a videographer editing out what the rabbi said if the couple wanted what the rabbi said included in the video. The videographer would not include something I objected to as the customer. For me, I can't wait to see the depositions of the husband and wife owners as the State's lawyers ask such questions about what they allege is their "ultimate" control over "content." This statement in the majority opinion formed a lynchpin as to why the majority Court of Appeals judges reached their decision. It is why the majority threw in footnote 3 to castigate and belittle the dissent. When I read the dissenting opinion, I concluded footnote 3 is almost insulting to the intelligence of the dissenting judge. In fact, the dissenting judge's reasoning was decidedly "not a moving target." For example, the dissenting opinion stated, at page 49:
Admittedly, the Larsens take great pains to portray themselves more like independent artists telling their own story than messengers acting on behalf of others. At oral argument, their counsel compared them to “Steven Spielberg, edit[ing] the film[s] to express messages” consistent with their personal and religious views. Oral Arg. at 0:00–1:05. But Steven Spielberg is not a public accommodation; he does not make his filmmaking services generally “available to the public.” Minn. Stat. § 363A.03 subdiv. 34. He is thus free to use his talents as he pleases without regard for laws like the MHRA. If the Larsens truly were artists speaking their own message, then TMG similarly would not qualify as a place of public accommodation and this entire lawsuit would be unnecessary.
The law regarding the procedure known as a motion to dismiss is, again, generally, a court must accept as true the factual allegations in a complaint. However, there are twilight zone areas even within that simple, straightforward legal proposition, especially if a court finds the fact averred is one which runs toward or to the absurd. To compare the videography corporation making videos for wedding couples to an independent film producer/director, who is making what is considered artistic personal expressions, is quite a stretch. The question, however, is that a sufficient stretch to reach the dissent's conclusion at this stage in the litigation? What bothered me about the majority opinion, after reading the dissent, was how the majority acknowledged, through footnote 3, they read the dissent. However, the majority ignored and refused to deal with what the dissent finally reaches, at page 50 of the dissent, which is his point about a hypothetical photography business deciding not to take photos of Muslim women in their hijabs or take photos of an interracial couple. The majority opinion did not expressly state they would draw any distinctions, hiding behind the motion to dismiss procedure and making it sound as if they may revisit the issue after discovery and a motion for summary judgment, for example.
Nonetheless, that musician hypothetical keeps coming back to me. I just don't know what to do about that one, and I find it harder to tell the musician what to play than telling this little corporation to just make the same sex marriage video, for goodness' sakes. What we are seeing in this particular moment in U.S. History is an argument that has emerged about whether pluralism is a societal good that should override (I won't say "trump" any longer for what I hope are obvious reasons) the "right" of people to oppose pluralism. And I realize we are perhaps drawing lines that are not so clear anymore, as the corporation's husband and wife owners admitted--yes, admitted!--in their complaint they would continue to serve gay and lesbian customers, just not prepare the videos for their weddings. At page 24, in the majority opinion, as the majority were rejecting the corporation's "freedom to associate" claim, even as the majority were upholding the "free exercise of religion" claim:
Indeed, the Larsens’ allegations all but doom their associational-freedom claim. The complaint stresses that the Larsens will “gladly work with all people— regardless of their . . . sexual orientation”—as long as the message of any video they are asked to make fits with their religious beliefs. The Larsens’ counsel reinforced this point at oral argument, explaining that they would have no problem making other types of videos for gay or lesbian customers. It is clear, then, that serving, speaking to, and otherwise associating with gay and lesbian customers is not the harm they seek to remedy. Their real objection is to the message of the videos themselves, which is just another way of saying that the MHRA violates their free- speech rights.
It sorta makes us wonder, is it really so important for this videographer corporation to not prepare a video for a same sex wedding compared to the importance of a gay or lesbian couple to participate in our society when they wish to marry? Is the videographer corporation's right to pursue its shareholder-owners' religious views sufficiently compelling to justify turning away a gay or lesbian couple, particularly in an area where the gay or lesbian couple may not find any business will videotape their wedding, even though state laws prohibit discrimination against them in general? Courts should look at the consequences of their decisions, and should ask, What is the purpose of anti-discrimination laws in the first place, and how does ruling against the state promote or harm that purpose? Yes, the majority opinion is careful to note the question, but I find the majority opinion is ultimately glib for not truly grappling with what I am saying here. The majority almost completely ignores the point made about a videographer who wants to include references to the Lord, Jesus Christ in every wedding video, something I believe will definitely come up in cross examination in the couple's depositions.*
I believe we will see the smarter courts grappling with the concept of pluralism, and may find themselves, if they have the integrity to be honest, determine the question of whether pluralism can be enforced with respect to beliefs that affect whether consumers have a right to fully participate in society. These courts may determine if they may honestly draw distinctions between, for example, wedding photographers and videographers on the one hand, and wedding musicians on the other. I wonder if courts will have to draw distinctions between content that is obscene (oh, that again!) and those which are personally insulting (Nazi cakes and Jewish bakers; harsh, snarky, sarcastic political statements) and those situations which concern a general refusal, such as this husband and wife owned videography corporation simply saying, "We will not perform our services at same sex weddings...at all." I have some doubt about whether the current crop of judges, particularly those President Trump and the Republican led Senate have placed on the bench, are ready for this type of discussion and request for fine distinctions. I wonder about their commitment to pluralism and anti-discrimination laws on behalf of truly and historically oppressed communities in our nation. I go on at length here because I did not really see that type of grappling in the long majority and dissenting opinions, though I think the dissent is much closer to the mark to what I have been discussing here. Sadly, I have little hope the US Supreme Court majority will modify or overturn the 8th Circuit Federal Court of Appeals. I think the majority of the Supreme Court justices, if they accept review of this case, will affirm the 8th Circuit Federal Court of Appeals.
In closing, let me say it as plainly as the late Yale Law School professor, Fred Rodell, would have said, Elections have consequences, folks. As I considered this majority opinion, and the initial reaction from David French (a noted "Never Trumper" who objects more to Trump's style than substance in many instances), in the right wing journal, the National Review, I began to fear for our gay, lesbian, and transgender, citizens, who may think they have equal rights to participate in our society, but may find doors increasingly closed to them, despite the laws they and others fought so hard to pass.
* I could not help noting how the majority and dissenting opinions kept referring to the husband and wife by their personal names, and glossed over the fact that, while the husband and wife couple were also plaintiffs, the Minnesota Human Rights Department was challenging the videographer business' assertion to not provide services for same sex weddings, not the couple on an individual basis. The majority and dissenting opinions did find the husband and wife each had standing to sue, again, despite the fact the husband and wife were not the corporation, but only shareholders who owned stock in the corporation. I don't chide the majority and dissenting judges, however, because this is a consequence of the Hobby Lobby case, where the majority of the US Supreme Court Justices suddenly found a for-profit corporation had the same religious rights as an individual or even a not for profit church. Justice Alito's majority opinion was an exercise in cynicism to hold the Religious Freedom Restoration Act, in including corporations in the definitions section of the act, meant Congress was expressly and fully including for-profit corporations within the Act. Funny, I do not recall ever seeing a corporation sitting next to me in a religious institution's pew. Yes, I am being glib. However, it is patently ridiculous to believe a for-profit corporation selling goods and services to the general public practices a "religion." The reason we have human beings and not computers engage in jurisprudence is to avoid absurdities. Unfortunately, Alito's conclusion, which four other justices joined, was an absurd one with regard to basic corporate law, where the reason individuals set up corporations is to separate the owners of the stock from the entity being created, that is the corporation--including the avoidance of personal responsibility. Also, Alito knows damned well courts have long held corporations have no 5th Amendment against self-incrimination. That is bedrock law for as long as courts have also held corporations are "persons." Wheeler v. United States, 226 U.S. 478, 488, 489 (1913), Hale v. Henkel, 201 U.S. 43 (1906). Yes, an exception has sometimes arisen with regard to closely-held or one person corporations, but only to the extent the individual is too tied up with the company. But even then, with respect to the 5th Amendment, we are talking about a criminal prosecution against the individual. Here, Minnesota was telling the corporation it cannot discriminate when selling its products and services to the general public. The State's Human Rights Department was expressly saying to the husband and wife, We, the State, are not telling you what to do in your private life. However, you have chosen to incorporate and chosen to sell goods or services to the general public. Also, if one forms a corporation to avoid personal liability, the essence of a corporation, how does one suddenly insert one's own personal, private religious views into that for-profit corporation selling goods and services to the general public? I get it that Hobby Lobby, an international for-profit corporation, happened to be a relatively closely held corporation, meaning it had a relatively small number of shareholders and was a privately held corporation, not a publicly held one, such as McDonald's or Disney. But really, courts should not be shielding their eyes from what is obvious about Hobby Lobby. Hobby Lobby is selling products and services to the general public no different than McDonald's. Anyway, that is my beef with Alito and Co. and I guess the Justices were lucky I was not in the conference room when the Hobby Lobby case was being discussed. I would have brought in a corporation law text book and pounded it on the table after reading the first chapter to them. :)
