936 F.3d 740 (8th Cir. 2019), 17-3352, Telescope Media Group v. Lucero

Docket Nº:17-3352
Citation:936 F.3d 740
Opinion Judge:STRAS, Circuit Judge.
Party Name:TELESCOPE MEDIA GROUP, a Minnesota corporation; Carl Larsen; Angel Larsen, the founders and owners of Telescope Media Group Plaintiffs-Appellants v. Rebecca LUCERO, in her official capacity as Commissioner of the Minnesota Department of Human Rights; Keith Ellison, in his official capacity as Attorney General of Minnesota Defendants-Appellees ...
Attorney:Counsel who presented argument on behalf of the appellants and appeared on the brief was Jeremy David Tedesco, of Scottsdale, AZ. The following attorney(s) also appeared on the appellant brief; Jonathan Andrew Scruggs, of Scottsdale, AZ, David Andrew Cortman, of Scottsdale, AZ, Kristen Waggoner, ...
Judge Panel:Before SHEPHERD, KELLY, and STRAS, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 23, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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936 F.3d 740 (8th Cir. 2019)

TELESCOPE MEDIA GROUP, a Minnesota corporation; Carl Larsen; Angel Larsen, the founders and owners of Telescope Media Group Plaintiffs-Appellants

v.

Rebecca LUCERO, in her official capacity as Commissioner of the Minnesota Department of Human Rights; Keith Ellison, in his official capacity as Attorney General of Minnesota Defendants-Appellees

Foundation for Moral Law; Center for Constitutional Jurisprudence; Sherif Girgis; Cato Institute; 11 Legal Scholars; Ryan T. Anderson, Ph.D.; African-American and Civil Rights Leaders; State of Alabama; State of Arkansas; State of Kansas; State of Louisiana; State of Missouri; State of Nebraska; State of Oklahoma; State of South Carolina; State of Texas; State of West Virginia Amici on Behalf of Appellants

American Civil Liberties Union; American Civil Liberties Union of Minnesota; District of Columbia; State of California; State of Connecticut; State of Delaware; State of Hawaii; State of Illinois; State of Iowa; State of Maine; State of Maryland; State of Massachusetts; State of New Jersey; State of New Mexico; State of New York; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; Americans United For Separation of Church and State; Anti-Defamation League; Bend the Arc, A Jewish Partnership for Justice; Central Conference of American Rabbis; Interfaith Alliance Foundation; Lambda Legal Defense and Education Fund; Muslim Advocates; National Council of Jewish Women; People for the American Way Foundation; Union for Reform Judaism; Women of Reform Judaism Amici on Behalf of Appellees

No. 17-3352

United States Court of Appeals, Eighth Circuit

August 23, 2019

Submitted: October 16, 2018

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Appeal from United States District Court for the District of Minnesota - Minneapolis

Counsel who presented argument on behalf of the appellants and appeared on the brief was Jeremy David Tedesco, of Scottsdale, AZ. The following attorney(s) also appeared on the appellant brief; Jonathan Andrew Scruggs, of Scottsdale, AZ, David Andrew Cortman, of Scottsdale, AZ, Kristen Waggoner, of Scottsdale, AZ, Rory Thomas Gray, of Lawrenceville, GA, Jacob P. Warner, of Scottsdale, AZ, and Renee K. Carlson, of Saint Paul, MN.

The following attorney(s) appeared on the amicus briefs in support of appellants; Timothy Belz, of Saint Louis, MO, John Allen Eidsmoe, of Montgomery, AL, David Todd Bydalek, AAG, of Lincoln, NE, Jefferson Downing, of Lincoln, NE, Steven W. Fitschen, of Virginia Beach, VA, Anthony T. Caso, of Orange, CA, Eugene Volokh, of Los Angeles, CA, J. Matthew Belz, of Saint Louis, MO, Ilya Shapiro, of Washington, DC, Jonathan R. Whitehead, of Lee’s Summit, MO, John C. Eastman, of Orange, CA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Alethea Marie Huyser, of St. Paul, MN. The following attorney(s) also appeared on the appellee brief; Janine Kimble, of St. Paul, MN, and Eric Brown, of St. Paul, MN.

The following attorney(s) appeared on the amicus briefs on behalf of the appellees; Richard B. Katskee, of Washington, DC, Teresa Nelson, of St. Paul, MN, Joshua A. Block, of New York, NY, Elizabeth N. Dewar, AAG, of Boston, MA, Lindsey Kaley, of New York, NY, Steven M. Freeman, of New York, NY, David L. Barkey, of New York, NY, Melissa Garlick, of New York, NY, Miriam L. Zeidman, of New York, NY, Camilla B. Taylor, of Chicago, IL, Kelly M. Percival, of Washington, DC, Johnathan Smith, of Washington, DC, Sirine Shebaya, of Washington, DC, Elliott M. Mincberg, of Washington, DC, Diane Laviolette, of Washington, DC, Russell Suzuki, Acting AG, of Honolulu, HI, Clyde J. Wadsworth, AAG, of Honolulu, HI, Kaliko‘onalani D. Fernandes, AAG, of Honolulu, HI, Maura Healey, AG, of Boston, MA, David C. Kravitz, AAG, of Boston, MA, Genevieve C. Nadeau, AAG, of Boston, MA, Jon Burke, AAG, of Boston, MA, Xavier Becerra, AG, of Sacramento, CA, George Jepsen, AG, of Hartford, CT, Matthew P. Denn, AG, of Wilmington, DE, Karl A. Racine, AG, of Washington, DC, Lisa Madigan, AG, of Chicago, IL, Thomas J. Miller, AG, of Des Moines, IA, Janet T. Mills, AG, of Augusta, ME, Brian E. Frosh, AG, of Baltimore, MD, Hector Balderas, AG, of Santa Fe, NM, Gurbir S. Grewal, AG, of Trenton, NJ, Eric J. Schneiderman, AG, of New York, NY, Ellen F. Rosenblum, AG, of Salem, OR, Josh Shapiro, AG, of Harrisburg, PA, Peter F. Kilmartin, AG, of Providence, RI, Thomas J. Donovan, Jr., AG, of Montpelier, VT, Mark R. Herring, AG, of Richmond, VA, and Robert W. Ferguson, AG, of Olympia, WA.

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

OPINION

STRAS, Circuit Judge.

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Carl and Angel Larsen wish to make wedding videos. Can Minnesota require them to produce videos of same-sex weddings, even if the message would conflict with their own beliefs? The district court concluded that it could and dismissed the Larsens’ constitutional challenge to Minnesota’s antidiscrimination law. Because the First Amendment allows the Larsens to choose when to speak and what to say, we reverse the dismissal of two of their claims and remand with instructions to consider whether they are entitled to a preliminary injunction.

I.

The Larsens, who own and operate Telescope Media Group, use their "unique skill[s] to identify and tell compelling stories through video," including commercials, short films, and live-event productions. They exercise creative control over the videos they produce and make "editorial judgments" about "what events to take on,

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what video content to use, what audio content to use, what text to use ..., the order in which to present content, [and] whether to use voiceovers."

The Larsens "gladly work with all people— regardless of their race, sexual orientation, sex, religious beliefs, or any other classification." But because they "are Christians who believe that God has called them to use their talents and their company to ... honor God," the Larsens decline any requests for their services that conflict with their religious beliefs. This includes any 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 Larsens now wish to make films that promote their view of marriage as a "sacrificial covenant between one man and one woman." To do so, they want to begin producing wedding videos, but only of opposite-sex weddings. According to the Larsens, these videos will "capture the background stories of the couples’ love leading to commitment, the [couples’] joy[,] ... the sacredness of their sacrificial vows at the altar, and even the following chapters of the couples’ lives." The Larsens believe that the videos, which they intend to post and share online, will allow them to reach "a broader audience to achieve maximum cultural impact" and "affect the cultural narrative regarding marriage."

Minnesota has a different idea.1 Relying on two provisions of the Minnesota Human Rights Act ("MHRA"), it claims that a decision to produce any wedding videos requires the Larsens to make them for everyone, regardless of the Larsens’ beliefs and the message they wish to convey. The first provision states: It is an unfair discriminatory practice ... to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of ... sexual orientation.

Minn. Stat. § 363A.11, subdiv. 1(a)(1). The second provides: It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of a service ... to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person’s ... sexual orientation ..., unless the alleged refusal or discrimination is because of a legitimate business purpose.

Id. § 363A.17(3).

Minnesota reads these two provisions as requiring the Larsens to produce both opposite-sex- and same-sex-wedding videos, or none at all. According to Minnesota, the Larsens’ duty does not end there. If the Larsens enter the wedding-video business, their videos must depict same- and opposite-sex weddings in an equally "positive"

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light. Oral Argument at 26:08-27:15. If they do not, Minnesota has made clear that the Larsens will have unlawfully discriminated against prospective customers "because of" their sexual orientation.

The Larsens have sued Minnesota in federal district court seeking injunctive relief preventing Minnesota from enforcing the MHRA against them. Their principal theory is that it is unconstitutional under the Free Speech Clause of the First Amendment to require them to make same-sex-wedding videos. They also raise free-exercise, associational-freedom, equal-protection, and unconstitutional-conditions claims, as well as an argument that the MHRA is unconstitutionally vague.

At this juncture, all that is before us are the allegations of the Larsens’ complaint. Early on, the district court granted Minnesota’s motion to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). It also denied the Larsens’ request for a preliminary injunction, but only because it had already decided to dismiss their lawsuit. According to the court, the Larsens free-speech claim failed as a...

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