Attorney General Ellison, Commissioner Lucero choose to fight LGBTQ wedding-video discrimination case in trial court
Instead of appealing split Eighth Circuit decision, will take case back to federal district court to build record of actual facts to counter plaintiff’s ‘fairy tale’ assertions
October 2, 2019 (SAINT PAUL) — Minnesota Attorney General Keith Ellison and Minnesota Human Rights Commissioner Rebecca Lucero announced today that they have chosen to continue to fight the Telescope Media case in federal district court, instead of appealing the case to the full Eighth Circuit or the U.S. Supreme Court. They announced their decision in an opinion piece in Thursday’s StarTribune.
Telescope Media is a videography business in St. Cloud that wants to make wedding videos for couples, but wants to discriminate against same-sex couples in providing that service, in violation of the Minnesota Human Rights Act.
“Minnesotans are decent people. We think everyone, no exceptions, should be able to live with the same dignity and respect we want for ourselves and our families. That’s just common decency,” Attorney General Ellison and Commissioner Lucero said. “Telescope wants to breach common decency on the grounds of ‘free speech.’ But their right to believe what they want is already fully protected. What they’re asking for is a license to discriminate against LGBTQ folks that could open up a can of worms for everyone.”
They continued, “We could have appealed the Eighth’s Circuit’s divided decision to the Supreme Court, but with the limited facts currently on record and the current composition of the court, that’s what Telescope and the extremist legal-advocacy group representing them want us to do. Instead, we’re taking the case back to federal district court, where we can establish a set of actual facts that are based in reality, not the fairy tale that Telescope is trying to tell,”
“In the meantime, we’re going to keep honoring the First Amendment, which allows everyone to believe what they want no matter how much we may disagree with them, and keep enforcing the Human Rights Act, which allows every Minnesotan to receive the same services in public no matter who they are,” Attorney General Ellison and Commissioner Lucero concluded.
Telescope Media in St. Cloud is a videography business that does not currently make wedding videos for any couples, straight or LGBTQ, but says it wants to enter the wedding-video business. Unusually, it claims that it would retain near-total creative control over the videos, such that a couple getting married would be little more than actors in Telescope’s short film. Telescope wants the right to deny this service to same-sex couples. Doing so would violate the Minnesota Human Rights Act, which among other things requires that LGBTQ Minnesotans and members of other protected classes have equal access to services that are offered to the general public.
Although Telescope is not yet in the wedding-video market — meaning that the business has not yet turned down any LGBTQ customers for their prospective wedding-video service — it filed a preemptive suit against the Attorney General and Human Rights Commissioner in U.S. District Court for the District of Minnesota in December 2016. In the suit, Telescope alleges that enforcing the Minnesota Human Rights Act to require that it offer the same unusual wedding-video services to LGBTQ customers as they would to straight customers violates its rights to free speech, free exercise of religion, equal protection, due process, and procedural due process, and puts unconstitutional conditions on its access to Minnesota’s marketplace.
In September 2017, the district court dismissed all of Telescope’s claims. Telescope appealed that dismissal to the U.S. Court of Appeals for the Eighth Circuit. On August 23, 2019, in a split 2-1 decision, a three-judge panel of the Eighth Circuit upheld the lower court’s dismissal of most of Telescope’s claims, but reversed the lower court’s dismissal of Telescope’s free-speech and free-exercise claims and remanded those claims to the federal district court. Because no fact-finding had occurred yet at the district court level, the circuit court was obliged to accept as true Telescope’s assertions about the unusual wedding-video service it plans to offer.
In a strongly-worded dissent, Judge Jane Kelly wrote, “… what may start in the wedding business — ‘we don’t do interracial weddings,’ ‘we don’t film Jewish ceremonies,’ and so on — likely will not end there.” (See p. 56 of decision.) By the logic of the panel’s decision, a tax preparer could refuse to do someone’s taxes because they disapprove of that person’s marital status or think a woman should not work outside the home. A convenience-store clerk could refuse to let someone pump gas because they do not believe in a religious symbol the customer is wearing or the color of the customer’s skin offends them.