David Stras testifies during his confirmation hearing in 2017. Credit: Diego M. Radzinschi / ALM

A federal appeals court on Friday revived a constitutional challenge brought by a Minnesota couple who won't shoot wedding videos for same-sex partners, teeing up a new dispute for the U.S. Supreme Court confronting a clash between state civil rights laws and religious protections.

The split panel, led by Judge David Stras, a Trump appointee to the U.S. Court of Appeals for the Eighth Circuit, said the couple can pursue a hybrid claim that combines elements of their free speech and religious freedom rights. Friday's decision overturns a district court ruling that had dismissed the videographers' claims and spurned their demand for an injunction against the state civil rights law.

At the heart of the case is a claim by a married couple, Carl and Angel Larsen, owners of Telescope Media Group, that the Minnesota Human Rights Act unlawfully requires them to film wedding videos for same-sex couples. The Larsens, described as "Bible-believing Christians who place Christ at the center of everything in their life," said they shoot videos that share a message of marriage being between a man and a woman.

"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," wrote Stras, who was joined by Judge Bobby Shepherd, a George W. Bush appointee. "Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage."

The Larsens' case could present the U.S. Supreme Court its next opportunity to confront protections claimed by small businesses that are refusing service to gay and lesbian customers. The justices addressed that clash—but did not fully resolve it—in a 2018 case involving a Colorado baker who refused to make a wedding cake for a gay couple.

In June, the justices declined to hear arguments from a baker in Oregon who refused on religious grounds to make a wedding cake for a same-sex couple. The court vacated a state ruling and sent the case back for reconsideration addressing the justices' decision in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission.

"Of course, it is not at all clear that the hybrid-rights doctrine will make any real difference in the end," Stras wrote in Friday's ruling. "After all, the Larsens' free-speech claim already requires the application of strict scrutiny. As a practical matter, then, the fact that the videos also have religious significance may not move the needle much."

Jane Kelly testifies at her confirmation hearing in 2013. Photo by Diego M. Radzinschi/ ALM

In her dissent, Judge Jane Kelly, appointed by then-President Barack Obama, said the Larsens are still free to communicate any message they want despite requirements of the Minnesota Human Rights Act forbidding businesses from refusing to provide services to customers based on race, sexual orientation and disability, among other protected classes.

"What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others," Kelly said in her dissent. "And make no mistake, that is what today's decision affords them license to do. The Larsens concede that they want to operate a public accommodation that serves only opposite-sex couples. Minnesota's law prohibits that conduct just as it would prohibit any hotel from denying its services to an individual based on race, any store from refusing to sell goods to a person based on religion, or any restaurant from charging higher prices to women than to men."

Kelly said in her ruling: "Nothing stops a business owner from using today's decision to justify new forms of discrimination tomorrow. In this country's long and difficult journey to combat all forms of discrimination, the court's ruling represents a major step backward."

The panel upheld the dismissal of the Larsens' other claims, including violations of associational freedom and the equal protection clause.

Similar cases are percolating in courts across the country in the wake of the 2018 Supreme Court ruling in Masterpiece Cakeshop. The 7-2 majority, led by Justice Anthony Kennedy, said the state commission's order that baker Jack Phillips "cease and desist" discriminating against same-sex couples violated his First Amendment right of free exercise of religion.

But Kennedy also made clear the Masterpiece Cakeshop decision was tied to that case only.

"The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market," he wrote.

 

 

The Eighth Circuit ruling in Telescope Media Group v. Lucero is posted below:

 

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