Do businesses have a First Amendment right to discriminate against same-sex couples? The Supreme Court was supposed to answer this question last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission. But Justice Anthony Kennedy lost his nerve and crafted a compromise ruling that ducked the main issue. He then quit the bench, leaving LGBTQ rights in the hands of his successor, Justice Brett Kavanaugh, as well as the cadre of reactionary judges whom President Donald Trump appointed to the lower courts.
On Tuesday, the 8th U.S. Circuit Court of Appeals heard arguments in Telescope Media Group v. Lindsey, a follow-up to Masterpiece Cakeshop. The 8th Circuit, which recently received an infusion of Trump appointees, looks poised to use Telescope to hobble civil rights laws. It will also tee up a potential Supreme Court showdown that will allow Kavanaugh to do what Kennedy wouldn’t and deny same-sex couples equal access to the marketplace. If the court does take that drastic step, then the impact won’t be limited to gay rights: Decades of precedent protecting Americans—including racial minorities—from discrimination could be in grave peril.
The first thing you need to know about Telescope is that it isn’t a real case. Unlike in Masterpiece Cakeshop—where a baker turned away a gay couple, then insisted upon his right to do so—nobody has suffered any injury here. Telescope Media Group is a media production company in Minnesota that films ads and live events for profit. Its owners, a married couple named Angel and Carl Larsen, view their work through the lens of their Christian faith. (Motto: “We want to magnify Christ like a telescope.”) But the company does not currently shoot wedding videos, so it has never had an opportunity to reject a same-sex couple, and it has not been fined by the state for its anti-gay stance.
Instead, it was Telescope that sued Minnesota, demanding an exemption from the state’s Human Rights Act. The act is a standard nondiscrimination law that prohibits commercial businesses from discriminating against customers on the basis of several traits, including sexual orientation. Telescope is represented by Alliance Defending Freedom, or ADF, an evangelical law firm that specializes in anti-LGBTQ impact litigation. The purpose of this case is not to protect Angel and Carl Larsen from some gay trolls seeking to shut down Telescope because of its owners’ beliefs. Rather, it’s part of ADF’s long-term strategy to enshrine discrimination in the law by securing special rights for Christian business owners to refuse service to LGBTQ people.
Jeremy Tedesco, the ADF attorney who argued Telescope on Tuesday, got around the hypothetical nature of the case by claiming that the Larsens want to “immediately enter the industry.” They are afraid to do so, he explained, for fear of sanctions under Minnesota’s Human Rights Act; they fear that if they reject a gay couple, they will be put out of business. Tedesco insisted that the Larsens have a free speech right to refuse to film same-sex weddings because they wish to “tell stories about marriage.” By forcing them to serve gay customers, Minnesota is regulating “the creation of films,” which constitutes compelled speech in violation of the First Amendment.
Tedesco found a mostly receptive audience. He faced Judges Bobby Shepherd, Jane Kelly, and David Ryan Stras. Shepherd is a hard-line conservative who recently defied the Supreme Court’s decision prohibiting draconian restrictions on abortion clinics. Kelly is a moderate liberal and the only Obama appointee to the 8th Circuit. (Thank blue slips for that.) Stras is a Trump appointee whose nomination drew fierce opposition from civil rights organizations. Before Tedesco even opened his mouth, he seemed likely to land a 2–1 decision in his favor.
Stras and Shepherd did nothing to suggest otherwise throughout the course of arguments. Kelly peppered Tedesco with tough questions, reminding him that same-sex couples “have the liberty right to marry.” Doesn’t the state have a strong interest in protecting their ability to exercise that right? But Tedesco told Kelly that she had it backwards—it’s Angel and Carl Larsen’s right that needs safeguarding. “The state doesn’t tolerate or respect the beliefs of people like Carl and Angel,” Tedesco said, when it forces them “to express an idea about marriage that they disagree with.”
Alethea Huyser, Minnesota’s assistant solicitor general, tried to reframe the case as a straightforward application of settled principles. “Minnesota’s law regulates discrimination based on protected status,” she told the court. “It does not regulate message.” Moreover, it doesn’t target any particular kind of speech; in the parlance of Supreme Court doctrine, it’s “content-neutral.” The Human Rights Act isn’t designed to compel pro-gay speech or anti-Christian speech or any speech at all. It merely prohibits businesses from turning away certain customers on the basis of a protected trait.
Stras vigorously disagreed. “In my view, to the extent [the law] touches speech, it prohibits only discriminatory speech. That’s not content-neutral,” he told Huyser. This theory is astonishing. The Supreme Court has long recognized that nondiscrimination laws do not generally implicate the First Amendment because they regulate conduct, not speech. And when the laws do regulate speech, they impose only an “incidental burden” on expression that does not trigger strict scrutiny. As the Supreme Court has explained, a law that bars an employer from hanging a sign that states “White Applicants Only” technically regulates speech. But its purpose is to regulate conduct, and so it should not be subject to stringent First Amendment review.
It seems that Stras disagrees. After all, a law that bars “White Applicants Only” signs prohibits only discriminatory speech, just like Minnesota’s Human Rights Act. Does that mean every nondiscrimination law, including the Civil Rights Act of 1964, is not content-neutral and must therefore pass strict scrutiny? That would require each law to be “narrowly tailored to serve compelling state interests.” So the question would then be: Does preventing discrimination in the marketplace qualify as a compelling interest, and if so, can laws that preclude such bigoted speech be sufficiently tailored to survive First Amendment scrutiny?
Not to Stras. If the court finds that videography is compelled speech, he asked Huyser, “doesn’t the state necessarily lose, because they have no interest in compelling somebody to speak?”
This statement has stunning implications. A huge number of activities, from videography and photography to baking, card design, and virtually all wedding services, compel some form of speech. And civil rights measures always compel expression; managers, for instance, must train their employees not to discriminate, promoting the state’s message of equality in commerce. Under Stras’ theory, any law that directs businesses to serve customers equally—and do so in a manner that involves speech—would be unconstitutional. The entire legal framework that supports civil rights laws would come toppling down.
Stras didn’t pull this idea out of a hat. He got it from Justices Clarence Thomas and Neil Gorsuch, who seized upon Masterpiece Cakeshop to promote a radical reconception of the First Amendment. In a concurrence joined by Gorsuch, Thomas wrote that a vast range of nondiscrimination laws should be held unconstitutional because they compel businesses to “communicate” a message. Thomas and Gorsuch couldn’t get a majority back then—but with Kennedy gone, they may have more luck using the First Amendment to sabotage nondiscrimination measures. Stras is teeing Telescope up for the justices, even though the plaintiffs in this case have nothing at stake. And next time around, with Kavanaugh on the court, they may have five votes to abolish civil rights laws as we know them.
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