Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, filed its opening brief in an appeals case in Minnesota this week, on behalf of a married couple that runs a video production company and seeks to discriminate against LGBTQ customers.
Carl and Angel Larsen, owners of Telescope Media Group, are at the center of the so-called “pre-enforcement” case — one that aims to strike down anti-discrimination laws prior to any actual violations. Unlike Jack Phillips, the baker in the Masterpiece Cakeshop case currently before the Supreme Court, the Larsens have not yet refused to serve a same-sex couple. But they want the ability to do so while expanding their business.
Back in September, Chief District Judge John Tunheim eviscerated ADF’s arguments in this particular case, dealing the conservative legal organization a significant blow. Now, ADF has brought the case before the Eighth Circuit Court of Appeals, hoping for a win.
The basic premise of the case is simple. The Larsens run a video production company. They want to profit off of selling their videography skills for weddings, but because of their anti-gay religious beliefs, they don’t want to sell those services to same-sex couples. Instead, they’re asking for an exemption from the Minnesota Human Rights Act (MHRA), giving them free reign to discriminate on the basis of sexual orientation.
“The Larsens will create films for anyone,” the appeal brief insists, “They just cannot create films promoting every message. Their decision turns on what a film promotes, never who requests it.”
This language is basically identical to what ADF argues in Masterpiece Cakeshop, but the context is slightly different.
In the Masterpiece Cakeshop case, Phillips refused to sell the same cakes to same-sex couples that he already sold to different-sex couples. The design of the cakes was not a factor. By contrast, the Larsens now claim that the specific videos they want to sell are marketed to different-sex couples with Christian values — something that they have not done before.
“They now want to promote Christian ideas about marriage,” the appeal explains. “…The Larsens want to tell stories through their films of marriages between one man and one woman that magnify God’s design and purpose for marriage. …By creating these films, the Larsens hope to affect cultural views on marriage.”
There’s some deception at work here. If the Larsens simply wanted to make films about the history of marriage, their religious views about marriage, or even a documentary about why same-sex marriage should not be legal, they wouldn’t run afoul of Minnesota’s sexual orientation protections. But they want to publicly advertise and sell videography services to marrying couples, a common and profitable enterprise.
ADF hopes to convince the courts that the Larsens’ videos are somehow not comparable to all those other similar services. One of the ways they do that is to show that the Larsens have prepared a statement they wish to publish on their website explaining their “vision for creating films to promote the idea that marriage is between one man and one woman.”
“Telescope Media Group exists to glorify God through top-quality media production,” the statement reads. “Because of TMG’s owners’ religious beliefs and expressive purposes, it cannot make films promoting any conception of marriage that contradicts its religious beliefs that marriage is between one man and one woman, including films celebrating same-sex marriages.”
The statement attempts to serve a number of purposes for ADF’s case. First, it continues to obfuscate the nature of the videography services the Larsens want to offer, suggesting they are films about “promoting” and “celebrating” marriages, as opposed to just documenting them. The statement also gives ADF another platform for arguing over free speech, because the MHRA prohibits businesses from publishing such intentions to discriminate. A sign in the window — whether it’s a storefront window or a web browser — declaring that protected groups aren’t welcome is de facto discrimination, but ADF argues that the prohibition limits the Larsens’ speech.
The Larsens also plan to stipulate in their contracts with clients that they will publish the videos they create on the internet in addition to releasing them to the newlyweds. Many videographers ask couples for permission to use excerpts from their wedding videos for promotional purposes, but the Larsens want to dictate that each will be published in full on their websites and social media accounts.
Although the stipulation seems odd on its face, it too serves a crucial purpose: Like the proposed website statement, the publishing contract requirement further reinforces the claim that the videos represent the Larsens’ voice — meaning that any requirement forcing them to sell their services to same-sex couples would be a violation of their free speech rights.
Given their objections to expressing support for marriage equality, that means the Larsens, if they refuse, would be forced to violate their own contracts to avoid being in violation of the state’s nondiscrimination law.
Perhaps more baffling is the fact that ADF treats the publishing requirement as if it’s a totally normal and obvious aspect of the Larsens’ business. Throughout the appeal brief, ADF argues that Minnesota’s law “compels them to create and publish [emphasis added] wedding films promoting a view of marriage they do not hold and prevents them from publicly explaining their religious beliefs.”
This framing, of course, is false. Nothing is forcing the Larsens to create videos celebrating same-sex marriage, nor is anything preventing them from espousing their religious beliefs. The law only implicates their business when they refuse to sell the exact same service to same-sex couples that they sell to different-sex couples. And they know this, which is why they have not yet begun selling that service. They simply want to have their cake and eat it too.
ADF has duplicated this model of challenging LGBTQ protections in several other cases: a calligraphy studio has been unsuccessfully challenging Phoenix’s nondiscrimination ordinance in Arizona state court, and in Colorado, a website designer is unsuccessfully challenging their state’s nondiscrimination law as well. (The latter case focuses on the same law Phillips is fighting in Masterpiece Cakeshop, so the website designer’s case is on hold until the Supreme Court weighs in.)
ADF’s strategy of devising odd business models to circumvent LGBTQ protections dates back to before the landmark Obergefell ruling.
Back in 2014, ADF took up the case of the Hitching Post Chapel, a for-profit wedding venue in Coeur d’Alene, Idaho. When marriage equality arrived in Idaho through an appeals court decision, the Hitching Post’s owners were concerned their city’s nondiscrimination ordinance would require them to host same-sex weddings. ADF helped them completely reincorporate their business, including obtaining a new business certificate and developing a new “Operating Agreement” and new “Employee Policy and Agreement,” all designed to convey a religious purpose for refusing to serve same-sex couples.
This elaborate overhaul ultimately proved successful in obtaining a religious exemption from the city, allowing the Hitching Post to operate a business that discriminates, setting the stage for ADF to attempt it elsewhere.
It’s unclear how the Supreme Court will rule in Masterpiece Cakeshop, but in the meantime, all of ADF’s “pre-enforcement” challenges have failed thus far — perhaps none more than the Larsens’. In Judge Tunheim’s ruling against them, he saw through all of ADF’s ruses, claiming that the Larsens “misunderstand how the MHRA operates,” claiming that comparisons they made were “inapt,” calling some of their legal conclusions “untenable,” and even describing one of their arguments as “unlike any the Court has encountered in precedent.”
It remains to be seen if the Eighth Circuit Court of Appeals will be more willing to accept that ruse.