August 23, 2019

A Federal Court Strikes a Powerful Blow for Free Speech and Religious Freedom
Earlier today, the Eighth Circuit Court of Appeals upheld the constitutional order, limited the reach of expansive nondiscrimination laws, and protected a Christian couple from having to choose between their business and their conscience.The facts of the case are simple. The plaintiffs, Carl and Angel Larsen, are videographers who create “commercials, short films, and live-event productions.” While they work with anyone of any race, sex, sexual orientation, or religion, they will not produce videos that advance viewpoints that violate their Christian beliefs. That includes videos that “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 Larsens hoped to begin producing wedding videos, but Minnesota interpreted its human-rights act to require them to “produce both opposite-sex- and same-sex-wedding videos, or none at all.” Minnesota would also require them to produce videos that depicted “same- and opposite-sex weddings in an equally ‘positive’ light.” This raised the possibility that a gay couple who didn’t like the subjective quality of a video the Larsens produced for them could seek state sanctions based on alleged sexual-orientation discrimination.With the assistance of my friends and former colleagues at the Alliance Defending Freedom, the Larsens filed suit, claiming that Minnesota’s rule would compel them to speak in support of messages they oppose. The trial court ruled in favor of the state, and the Larsens appealed.One of the key constitutional questions of our time is whether the First Amendment will retain its supremacy and potency even as nondiscrimination rules and regulations expand in scope and reach. In this case, the Eight Circuit answered answered with an emphatic “Yes,” and it did so through a majority opinion that provided a clear roadmap for future courts and future controversies.Judge David Stras’s majority opinion begins with a simple, obvious, but crucial conclusion. The Larsens’s wedding videos are a “form of speech that is entitled to First Amendment protection.” Though they don’t make feature films, their wedding videos would still clearly communicate a message in the same way that films do. As the court explained, their wedding videos would be designed to tell “healthy stories of sacrificial love and commitment between a man and a woman” and celebrate the “divinely ordained” marriage covenant.Moreover, the fact that the Larsens were producing videos for profit did not diminish their constitutional protection. Documentaries make money. Feature films make money. Are they not clearly protected speech? To put it plainly, Minnesota was attempting to engage in one of the most intrusive state actions on the First Amendment. It was attempting to compel the Larsens to deliver a message they opposed.Yet that finding did not end the inquiry. State agencies have long argued that the governmental interests supporting public-accommodation laws and other nondiscrimination statutes are so compelling that they can and should override the speech protections of the First Amendment. In constitutional legalese, they claim that nondiscrimination laws are so vital they should be able to survive “strict scrutiny.”If the court did find that nondiscrimination laws can even compel speech, it would invert the constitutional order. It would relegate the First Amendment to second-class status — less potent than a mere state regulation. Indeed, this is the argument that much of the legal Left has been making for years. They view First Amendment–based arguments against public-accommodation laws or other nondiscrimination statutes as a form of special pleading by religious Americans, a request to be exempt from the fair and just rules that govern the rest of us.But this is exactly backwards. The First Amendment is part of our nation’s governing document, and it recognizes the unalienable rights possessed by all Americans — not just people of faith.  State and local regulators are engaged in special pleading. They’re seeking carve-outs from the supreme law of the land.Judge Stras understands this reality quite clearly. “Even antidiscrimination laws, as critically important as they are,” he writes “must yield to the Constitution. And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment.”Yes. Exactly. He continues:> Regulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be. It is a “bedrock principle . . . that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”There are those who will claim that this decision will clear the way for wholesale discrimination in the name of “free speech.” It will do no such thing. Instead it will protect a small minority of creative professionals who do not discriminate against any member of any protected class from being conscripted into saying things they do not believe.We can expect that Minnesota will appeal to the Supreme Court, and if the Court accepts review it will be difficult to see SCOTUS reversing the court of appeals. The case that wedding videos represent protected speech is very strong, and once it’s deemed to be protected speech, the Court would have to contradict key prior precedents to overcome the Larsons' rights of conscience and compel their speech as a condition of doing business.One should always be cautious when projecting case outcomes, but the Eighth Circuit has laid the judicial foundation for a ruling that should, ultimately, reaffirm the primacy of the Constitution in American law.
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