Last year, the Supreme Court ruled that the Colorado Civil Rights Commission was impermissibly hostile to a baker's religious beliefs when it found him in violation of the state's anti-discrimination laws for refusing to bake a wedding cake for a same-sex couple. What the Court did not say was that wedding vendors and other business owners have a right to refuse service to LGBT customers.
But, perhaps because the Court remained silent on the issue, that's what the U.S. Eighth Circuit Court of Appeals said last week, ruling that a videographer's First Amendment rights might trump the State of Minnesota's nondiscrimination law. While the case isn't over yet, the ruling leaves the door open for businesses to discriminate against LGBT people, and perhaps others based on religion, race, or gender.
"Even antidiscrimination laws, as critically important as they are, must yield to the Constitution," wrote U.S. Circuit Judge David Stras. "And as compelling as the interest in preventing discriminatory conduct may be, speech is treated differently under the First Amendment." Much of the majority's reasoning rests on the presumption that the wedding videos, recorded by Carl and Angel Larsen, are considered speech:
The complaint makes clear that the Larsens' videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control.
The court differentiated public accommodations laws like those that require restaurants to serve patrons regardless of race, gender, or sexual orientation, contending that "Minnesota is targeting speech itself." What's left to determine is which services, like restaurants, are conduct and which, like videography apparently, are speech. Is baking a cake conduct or speech? Such a distinction could allow some businesses to discriminate against LGBT customers while others cannot.
As we noted, the case is not over yet. The Eighth Circuit merely overturned portions of a district court's decision to dismiss the case completely. The Larsen's claims will go back to the district court, to consider whether they are entitled to a preliminary injunction against the Minnesota law.
"Nothing stops a business owner from using today's decision to justify new forms of discrimination tomorrow," Circuit Judge Jane Kelly wrote in dissent. "In this country's long and difficult journey to combat all forms of discrimination, the court's ruling represents a major step backward."