Marshall H. Tanick, BridgeTower Media Newswires
“[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Obergefell v. Hodges, 135 S.Ct. 2071 (2015)
While it answered the question whether same sex couples have the right to marriage in the affirmative three and one half years ago, the decision by the U.S. Supreme Court in Obergefell v. Hodges, 135 S.Ct. 2071 (2015), created a number of still unresolved issues.
One of the most vexing is whether individuals or businesses can refuse to provide goods or services because a same-sex relationship offends the religious beliefs of the reluctant providers. That issue was addressed, but sidestepped, by the high court last term in the high profile Colorado “cake case,” Masterpiece Cake Company v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018). But it is likely to rise again to the high court level. It may occur in a case from Minnesota, Telescope Media Group v. Lindsey, No. 16-4094 (8th Cir. 2018), which involves a St. Cloud videography business that wishes to refuse to provide its services.
U.S. District Court Chief Judge John Tunheim rejected the First Amendment defense proffered by the heterosexual married couple that owns the business, claiming that the ceremony offends their deeply held religious beliefs. They raised the claim in a pre-enforcement challenge against the Minnesota Department of Human Rights.
An appeal of that decision was heard at the 8th Circuit Court of Appeals in mid-October. Its ruling could have a major impact on the rights and objectives of members of the LGBT community (and other minorities), in addition to the individuals and businesses that provide goods and services to them or refuse to do so. The potential impact of the Telescope litigation warrants a close look as the 8th Circuit ponders the litigation.
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Telescope tussle
The Telescope case arose when a Christian couple in St. Cloud, running a videography business, sought to enter the wedding business, while limiting their services only to heterosexual couples because of their anti-gay marriage religious beliefs. The couple sued the MDHR for a judicial determination that their marketing plan expressly excluding same-sex events does not violate the state Human Rights Act, Minn. Stat. § 363A.01, et seq. Like nearly two dozen other jurisdictions, including the District of Columbia, Guam and Puerto Rico, the Minnesota law includes a sexual orientation provision. In that way, it is unlike Title VII of the federal Civil Rights Act, which does not extend to that classification.
Tunheim dismissed the case, holding that the provision of the state anti-discrimination law prohibiting discrimination by businesses providing consumer goods or services based on the sexual orientation of customers does not violate the constitutional rights of the videographers or others seeking to make similar distinctions. He reasoned that the desire by the reluctant videographers to post a notice on their website refusing to do same-sex weddings is akin go posting an illegal “White Applicants Only” sign on a business facility.
Although the videographers alluded to their religious freedom under the First Amendment, the focus of the case is another provision of the First Amendment, the clause protecting freedom of expression. Tunheim deemed the measure inapplicable because the couple’s proposed marketing plan would be “conduct carried out through language ... not protected by the First Amendment.” The entrepreneurial couple, the judge pointed out, could easily avoid impinging on the exercise of their views by refusing “to post videos of same sex weddings online,” rather than declining to provide services for those ceremony.
The videographers took the tussle with the Human Rights Department to the 8th Circuit. The three-judge panel from St. Louis, which included Judge David R. Stras, a former justice of the Minnesota Supreme Court, heard the case on October 16th, on one of its pilgrimages to Minnesota. An overflow crowd attended the hearing conducted on the sixth floor of the Warren G. Burger building, where the 8th Circuit occasionally holds court.
The state’s position, articulated by an assistant attorney general representing the department, was that the statutory prohibition or denial of goods and services is a valid “neutral and generally applicable public accommodations law.” The videographer couple was represented by the Alliance Defending Freedom, a nation-wide Christian legal advocacy group, based in Scottsdale, Arizona, which also represented the prevailing Colorado bakery before the U.S. Supreme Court. Its counsel parried the state’s position by arguing that the department’s position went “too far to force people to express messages about marriage that violates their beliefs” derogation of their First Amendment rights.
But Stras, sitting on the panel with Judges Jane Kelly and Bobby Shepherd, questioned the Alliance attorney whether the claimants clearly made a distinction between refusing to produce a message they oppose and refusing service to a class of people, which drew a response from counsel that the position espoused by the state was that “speech itself is being treated as a public accommodation.”
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Cases considered
In the meantime, the tribunal has a number of cases to consider in deciding the outcome of the litigation, which may then be headed to the Supreme Court regardless of its outcome here.
At first blush, two cases stand out: the Obergefell same sex case permitting same sex marriage and the Masterpiece Cake case, upholding the right of a bakery to refuse to service to a same-sex marriage. But the St. Cloud case does not fit squarely into either of those precedents.
Obergefell was narrowly addressed to the issue of the entitlement to same-sex marriage. While the majority decision written by now retired Justice Anthony Kennedy, contained effusive language about the primacy of that relationship, it did not go so far as to address the interaction between married couples and those who oppose that arrangement. The Masterpiece case, in a 7-2 decision, also written by Kennedy, stopped short of endorsing the refusal to service same sex weddings. It predicated its holding on the animosity reflected towards the religious views of the baker by two of the members of the Colorado agency that found against him.
Kennedy’s opinion, for a 7-2 majority, noted that because “the adjudication concerned a context that may well be different going forward … the outcome of cases like this in other circumstances must await further elaboration in the courts.” In other words, the decision is of virtually no precedential value for the core issue raised in the Telescope video case, the right of providers of goods or services to turn down same sex couples on First Amendment grounds.
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Minnesota matters
But other case law may come into play in assessing the arguments of the parties and adjudicating the St. Cloud case, including some matters from Minnesota, covering several collateral issues, ranging from gender discrimination to labor law and from both sides of the Mississippi River in the Twin Cities across the Atlantic Ocean to the United Kingdom.
The genesis of same-sex marriage case law is grounded in Minnesota. In Baker v. Nelson, 409 U.S. 10 (1972), the U.S. Supreme Court initially agreed to hear an appeal by a same sex couple in Minnesota challenging the refusal by Hennepin County to certify their marriage, but reversed itself and dismissed the case on grounds that it did not pose a “substantial federal question,” As the times changed and social mores with it, the court departed from that reasoning and expressly disowned it in the Obergefell case, holding that “Baker v. Nelson must now be overruled,” a holding applauded by many who nonetheless shudder at the prospect of high court reversals of other precedents.
Another cutting edge Minnesota case could play a role in the Telescope video litigation. In Roberts v. Jaycees, 468 U.S. 609 (1984), the national Jaycees organization, contrary to the wishes of its local chapters in both Minneapolis and St. Paul, invited women members, a proscription that was challenged on gender discrimination grounds, under the state Human Rights Act.
Reversing a ruling of the 8th Circuit, the Supreme Court unanimously deemed the exclusion illegal. It rejected a claim that compelling the group to accept women violated the right of their male members to their right of freedom of association under the First Amendment.
Another noteworthy Minnesota criminal case, interpreted the state constitutional “freedom of conscience” provision, in Article 1, Section 16 Minnesota state Constitution, broader than the religious freedom clause under the First Amendment. In State v. Hershberger, 444 N.W.2d 282 (Minn. 1989) and 462 N.W.2d 393 (Minn. 1990 on remand), the state Supreme Court deemed the Minnesota clause to preclude a criminal charge against an Amish farmer in southern Minnesota, driving a buggy lacking the legally required slow moving vehicle sign on public roadways, which the farmer maintained violated his religious belief against bearing government compelled signage. See also State v. French, 460 N.W.2d 2 (Minn. 1990) (religious beliefs exempt landlord from anti-discrimination violation). But many of the Minnesota cases have turned out to be less favorable to employers claiming religious defense to Human Rights charges. E.g., State ex rel. McClure v. Sports & Health Club, Inc., 370 N.W.2d 870, 844 (Minn. 1985).
But Hershberger was not a civil case and did not involve the anti-bias laws, which generally have been interpreted to restrict freedom defenses. A similar fate befell a claimant in a federal case who refused to serve African American at his drive-in restaurant in South Carolina because of his religious belief against “any integration of the races whatsoever.” In Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400 (1980), the courts ruled against his “good faith” defense to furnish goods under the federal Civil Rights Act, and the Supreme Court, in a per curiam decision issued only 11 days after oral argument, upheld an argument for attorney’s fees on the successful claimant on grounds that obtaining injunctive relief qualified for attorney’s fees under the fee-shifting provision of the Civil Rights Act, 42 U.S.C. 1988. In passing, the court noted in a footnote that the “good faith” defense asserted by the food facility owner was patently “frivolous.”
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British bakery
But maybe not so, in light of contemporary case law.
While the Colorado cake case does not legitimize that position, it gives some leeway to the St. Cloud videographers to argue that their religious beliefs merit serious attention. They are bolstered by a decision from no less, the Supreme Court in Great Britain. A recent decision by that august body upheld the right of a bakery in Belfast, Ireland, to refuse to bake a cake inscribed with a frosting message supporting same-sex marriage. A five-judge panel in Alee v. McArthur, MOR 10086 (Oct. 10, 2018) found that the refusal by the bakery was not impermissibly based on sexual orientation, but on the owner’s legitimate religious opposition to gay marriage, leading the tribunal to overturn two lower court rulings because “there was no discrimination on grounds of sexual orientation.” The British court cited the Masterpiece cake case as precedent, proclaiming that the “important message” from the Supreme Court is that “there is a clear distinction between refusing to produce a cake conveying a particular message ... and refusing to produce a cake for a particular customer who wants it because of that customer’s characteristics.”
The Belfast bakery case, however, differs in important respects from both the Colorado cake brouhaha and the St. Cloud videographer lawsuit. The Irish bakery rejected an order by a gay activist inscribed with the message “Support Gay Marriage,” along with a request for images of the iconic Sesame Street characters, Bert and Ernie, who are considered by some to be gay icons. In contrast, neither of the wedding cake aspirants in the Colorado case nor any prospective videography customers in the St. Cloud case, nor the Department of Human Rights in the St. Cloud videography case have sought the expression of a particular message, but merely sought the provision of the goods and services without any accompanying advocacy.
The pending 8th Circuit case also may draw upon the decision of the U.S. Supreme Court allowing corporations to refuse to provide birth control services under insurance policies, which the high court upheld in 2014 in Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014).
But this stream of cases may be submerged by the 8th Circuit decision making because the St. Cloud videography claimants have eschewed a First Amendment religious rights claim due to adverse state law precedents, like Sports Health Club under state law, and resting their position on freedom of expression grounds. That could evoke consideration of another recent high court ruling.
At the end of last term, in Janus v. AFSCME, 138 S.Ct. 2448 (2018), it narrowly upheld the right of members of public sector unions in “agency shop” states, to refuse to pay dues on First Amendment grounds because the position taken by their unions conflicted with their own views. The majority opinion in the court’s 5-4 ruling cites the “heavy burden” placed on First Amendment rights by the “unconstitutional expectations.” The Janus decision could form the First Amendment artillery for ruling in favor of the videographers without delving into anti-gay discrimination or, for that matter, religious beliefs.
For the recalcitrant videographers and their supports, the rallying cry might be that members of the LGBT community “can’t have their cake and eat it, too.”
But same sex couples denied videography services and their supporters could band behind the chant of “Let them eat cake,” a phrase said to have been uttered dismissively by the French queen Marie Antoinette to destitute housewives in France protesting their inability to afford bread for their families. That comment, coupled with other behavior, led to her and her husband Louis XVII encountering the guillotine during the French Revolution.
Regardless of slogans, and for that matter, Tunheim’s ruling in Minnesota, the St. Cloud video case is closely contested and its outcome is likely to be neck and neck if it ultimately rises to the level of the Supreme Court.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
