Telescope Media Group, a Minnesota corporation; Carl Larsen; Angel Larsen, the founders and owners of Telescope Media Group Plaintiffs - Appellants
Rebecca Lucero, in her official capacity as Commissioner of the Minnesota Department of Human Rights; Keith Ellison, in his official capacity as Attorney General of Minnesota Defendants - Appellees Foundation for Moral Law; Center for Constitutional Jurisprudence; Sherif Girgis; Cato Institute; 11 Legal Scholars; Ryan T. Anderson, Ph.D.; African-American and Civil Rights Leaders; State of Alabama; State of Arkansas; State of Kansas; State of Louisiana; State of Missouri; State of Nebraska; State of Oklahoma; State of South Carolina; State of Texas; State of West Virginia Amici on Behalf of Appellants American Civil Liberties Union; American Civil Liberties Union of Minnesota; District of Columbia; State of California; State of Connecticut; State of Delaware; State of Hawaii; State of Illinois; State of Iowa; State of Maine; State of Maryland; State of Massachusetts; State of New Jersey; State of New Mexico; State of New York; State of Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; Americans United For Separation of Church and State; Anti-Defamation League; Bend the Arc, A Jewish Partnership for Justice; Central Conference of American Rabbis; Interfaith Alliance Foundation; Lambda Legal Defense and Education Fund; Muslim Advocates; National Council of Jewish Women; People for the American Way Foundation; Union for Reform Judaism; Women of Reform Judaism Amici on Behalf of Appellees
Submitted: October 16, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SHEPHERD, KELLY, and STRAS, Circuit Judges.
and Angel Larsen wish to make wedding videos. Can Minnesota
require them to produce videos of same-sex weddings, even if
the message would conflict with their own beliefs? The
district court concluded that it could and dismissed the
Larsens' constitutional challenge to Minnesota's
antidiscrimination law. Because the First Amendment allows
the Larsens to choose when to speak and what to say, we
reverse the dismissal of two of their claims and remand with
instructions to consider whether they are entitled to a
Larsens, who own and operate Telescope Media Group, use their
"unique skill[s] to identify and tell compelling stories
through video," including commercials, short films, and
live-event productions. They exercise creative control over
the videos they produce and make "editorial
judgments" about "what events to take on, what
video content to use, what audio content to use, what text to
use . . ., the order in which to present content, [and]
whether to use voiceovers."
Larsens "gladly work with all people-regardless of their
race, sexual orientation, sex, religious beliefs, or any
other classification." But because they "are
Christians who believe that God has called them to use their
talents and their company to . . . honor God," the
Larsens decline any requests for their services that conflict
with their religious beliefs. This includes any that, in
their view, "contradict biblical truth; promote sexual
immorality; support the destruction of unborn children;
promote racism or racial division; incite violence; degrade
women; or promote any conception of marriage other than as a
lifelong institution between one man and one woman."
Larsens now wish to make films that promote their view of
marriage as a "sacrificial covenant between one man and
one woman." To do so, they want to begin producing
wedding videos, but only of opposite-sex weddings. According
to the Larsens, these videos will "capture the
background stories of the couples' love leading to
commitment, the [couples'] joy[, ] . . . the sacredness
of their sacrificial vows at the altar, and even the
following chapters of the couples' lives." The
Larsens believe that the videos, which they intend to post
and share online, will allow them to reach "a broader
audience to achieve maximum cultural impact" and
"affect the cultural narrative regarding marriage."
has a different idea. Relying on two provisions of the Minnesota
Human Rights Act ("MHRA"), it claims that a
decision to produce any wedding videos requires the
Larsens to make them for everyone, regardless of the
Larsens' beliefs and the message they wish to convey. The
first provision states:
It is an unfair discriminatory practice . . . to deny any
person the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of a
place of public accommodation because of . . . sexual
Minn. Stat. § 363A.11, subdiv. 1(a)(1). The second
It is an unfair discriminatory practice for a person engaged
in a trade or business or in the provision of a service . . .
to intentionally refuse to do business with, to refuse to
contract with, or to discriminate in the basic terms,
conditions, or performance of the contract because of a
person's . . . sexual orientation . . ., unless the
alleged refusal or discrimination is because of a legitimate
Id. § 363A.17(3).
reads these two provisions as requiring the Larsens to
produce both opposite-sex- and same-sex-wedding videos, or
none at all. According to Minnesota, the Larsens' duty
does not end there. If the Larsens enter the wedding-video
business, their videos must depict same- and opposite-sex
weddings in an equally "positive" light. Oral
Argument at 26:08-27:15. If they do not, Minnesota has made
clear that the Larsens will have unlawfully discriminated
against prospective customers "because of" their
Larsens have sued Minnesota in federal district court seeking
injunctive relief preventing Minnesota from enforcing the
MHRA against them. Their principal theory is that it is
unconstitutional under the Free Speech Clause of the First
Amendment to require them to make same-sex-wedding videos.
They also raise free-exercise, associational-freedom,
equal-protection, and unconstitutional-conditions claims, as
well as an argument that the MHRA is unconstitutionally
juncture, all that is before us are the allegations of the
Larsens' complaint. Early on, the district court granted
Minnesota's motion to dismiss for failure to state a
claim. See Fed. R. Civ. P. 12(b)(6). It also denied
the Larsens' request for a preliminary injunction, but
only because it had already decided to dismiss their lawsuit.
According to the court, the Larsens' free-speech claim
failed as a matter of law because the MHRA serves an
important governmental interest- preventing
discrimination-without limiting more speech than necessary to
accomplish this goal. It also ruled that the MHRA did not
violate any of the other constitutional rights identified by
addressing the merits, we must determine whether the Larsens
have standing. At this stage, we assume the allegations in
the complaint are true and view them in the light most
favorable to the Larsens. See Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 933 n.4 (8th Cir.
standing, the Larsens must establish (1) an injury in fact;
(2) a causal connection between the injury and the challenged
law; and (3) that a favorable decision is likely to redress
their injury. Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016). There is no doubt that the Larsens'
allegations satisfy the second and third requirements: any
injury would be traceable to the MHRA and would be redressed
by a judicial decision enjoining Minnesota from enforcing the
law against them. The only real question is whether the
Larsens have suffered an injury in fact.
a harm must be "actual or imminent, not conjectural or
hypothetical," to constitute an injury in fact,
id. at 1548 (citation omitted), a plaintiff need not
wait for an actual prosecution or enforcement action before
challenging a law's constitutionality, see Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158- 59 (2014).
In fact, all a plaintiff must do at the motion-to-dismiss
stage is allege "an intention to engage in a course of
conduct arguably affected with a constitutional interest, but
proscribed by a statute, and [that] there exists a credible
threat of prosecution thereunder." Id. at 159
(citation omitted); see also 281 Care Comm. v.
Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (explaining
that even "[s]elf-censorship can . . . constitute injury
in fact" for a free-speech claim when a plaintiff
reasonably decides "to chill his speech in light of the
Larsens' constitutional claims meet this test. The Free
Speech Clause of the First Amendment covers films, see
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02
(1952), so the videos the Larsens intend to make are
"affected with a constitutional interest,"
Susan B. Anthony List, 573 U.S. at 159 (citation
omitted). The Larsens' desire "to engage in a course
of conduct" that includes the production of videos means
that their other claims are affected with a constitutional
interest too, regardless of the precise legal theory.
Id. (citation omitted).
the Larsens have adequately alleged a "credible threat
of enforcement." Id.; cf. Minn. Stat.
§ 363A.30, subdiv. 4 (establishing criminal penalties
for certain violations). If the Larsens enter the
wedding-video business and refuse to film same-sex weddings,
Minnesota has made clear that it will view their actions as a
violation of the MHRA. Indeed, Minnesota has publicly
announced that the MHRA requires all private businesses,
including photographers, to provide equal services for same-
and opposite-sex weddings. It has even employed
"testers" to target noncompliant businesses, and it
has already pursued a successful enforcement action against a
wedding vendor who refused to rent a venue for a same-sex
wedding. Minnesota's active enforcement of the MHRA
leaves us with little doubt that the Larsens will face legal
consequences if they decide to start making wedding
determined that the Larsens have standing, we now address
their principal claim, which is that the wedding videos are
speech and they have a First Amendment right to make them for
only opposite-sex weddings. At this stage, our task is to
review the complaint de novo to determine whether it alleges
one or more actionable claims. United States ex rel.
Raynor v. Nat'l Rural Utils. Co-op. Fin., Corp., 690
F.3d 951, 955 (8th Cir. 2012).
First Amendment, which applies to the states through the
Fourteenth Amendment, prohibits laws "abridging the
freedom of speech." U.S. Const. amend. I. It promotes
the free exchange of ideas by allowing people to speak in
many forms and convey a variety of messages, including those
that "invite dispute" and are "provocative and
challenging." Terminiello v. Chicago, 337 U.S.
1, 4 (1949). It also prevents the government from
"[c]ompelling individuals to mouth support for views
they find objectionable." Janus v. Am. Fed'n of
State, Cty., & Mun. Emps., Council 31, 138 S.Ct.
2448, 2463 (2018). As the Supreme Court has made clear,
"[t]here is no room under our Constitution for a more
restrictive" approach because "the alternative
would lead to standardization of ideas . . . by legislatures,
courts, or dominant political or community groups."
Terminiello, 337 U.S. at 4-5.
Larsens' videos are a form of speech that is entitled to
First Amendment protection. The Supreme Court long ago
recognized that "expression by means of motion pictures
is included within the free speech and free press guaranty of
the First and Fourteenth Amendments." Joseph
Burstyn, 343 U.S. at 502; see also Schad v. Borough
of Mount Ephraim, 452 U.S. 61, 65-66 (1981). Indeed,
"[i]t cannot be doubted that motion pictures are a
significant medium for the communication of ideas."
Joseph Burstyn, 343 U.S. at 501. "They [can]
affect public attitudes and behavior in a variety of ways,
ranging from direct espousal of a political or social
doctrine to the subtle shaping of thought which characterizes
all artistic expression." Id.
the Larsens do not plan to make feature films, the videos
they do wish to produce will convey a message designed to
"affect public attitudes and behavior."
Id. According to their complaint, they will tell
"healthy stories of sacrificial love and commitment
between a man and a woman," depict marriage as a
divinely ordained covenant, and oppose the "current
cultural narratives about marriage with which [the Larsens]
disagree." By design, they will serve as a "medium
for the communication of ideas" about marriage.
Id.; cf. Masterpiece Cakeshop, Ltd. v. Colo.
Civil Rights Comm'n, 138 S.Ct. 1719, 1727 (2018)
("[R]eligious and philosophical objections to gay
marriage are protected views and in some instances protected
forms of expression."). And like the creators of other
types of films, such as full-length documentaries, the
Larsens will exercise substantial "editorial control and
judgment," Miami Herald Publ'g Co. v.
Tornillo, 418 U.S. 241, 258 (1974), including making
decisions about the footage and dialogue to include, the
order in which to present content, and whether to set parts
of the film to music. The videos themselves are, in a word,
dissent reaches the opposite conclusion, but only by
recasting or ignoring the allegations in the Larsens'
complaint,  which at this stage we must accept as
true. See Miller, 688 F.3d at 933 n.4. 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.
does not make any difference that the Larsens are expressing
their views through a for-profit enterprise. See
post at 48. In fact, in holding that motion pictures are
protected by the First Amendment, the Supreme Court
explicitly rejected the idea that films do not "fall
within the First Amendment's aegis [simply] because"
they are often produced by "large-scale business[es]
conducted for private profit." Joseph Burstyn,
343 U.S. at 501; see also Masterpiece Cakeshop, 138
S.Ct. at 1745 (Thomas, J., concurring) ("[T]his Court
has repeatedly rejected the notion that a speaker's
profit motive gives the government a freer hand in compelling
speech."). Other commercial and corporate entities,
including utility companies and newspapers, have received
First Amendment protection too. See Pac. Gas & Elec.
Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8
(1986) (plurality opinion) (collecting cases);
Tornillo, 418 U.S. at 258; see also Citizens
United v. FEC, 558 U.S. 310, 342 (2010) (collecting
cases). The reason, the Court has said, is that they
"contribute to the discussion, debate, and the
dissemination of information and ideas that the First
Amendment seeks to foster" no less than individuals do.
Pac. Gas, 475 U.S. at 8 (plurality opinion)
(internal quotation marks and citation omitted).
position is that it is regulating the Larsens' conduct,
not their speech. To be sure, producing a video requires
several actions that, individually, might be mere conduct:
positioning a camera, setting up microphones, and clicking
and dragging files on a computer screen. But what matters for
our analysis is that these activities come together to
produce finished videos that are "medi[a] for the
communication of ideas." Joseph Burstyn, 343
U.S. at 501; see also Brown v. Entm't Merchs.
Ass'n, 564 U.S. 786, 792 n.1 (2011) ("Whether
government regulation applies to creating, distributing, or
consuming speech makes no difference.").
were to accept Minnesota's invitation to evaluate each of
the Larsens' acts individually, then wide swaths of
protected speech would be subject to regulation by the
government. The government could argue, for example, that
painting is not speech because it involves the physical
movements of a brush. Or it could claim that publishing a
newspaper is conduct because it depends on the mechanical
operation of a printing press. It could even declare that a
parade is conduct because it involves walking. Yet there is
no question that the government cannot compel an artist to
paint, demand that the editors of a newspaper publish a
response piece, or require the organizers of a parade to
allow everyone to participate. See, e.g.,
Tornillo, 418 U.S. at 256-58; Hurley v.
Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.,
Inc., 515 U.S. 557, 572-73 (1995). Speech is not conduct
just because the government says it is.
interpretation of the MHRA interferes with the Larsens'
speech in two overlapping ways. First, it compels the Larsens
to speak favorably about same-sex marriage if they choose to
speak favorably about opposite-sex marriage. Second, it
operates as a content-based regulation of their speech.
Supreme Court has "held time and again that freedom of
speech includes both the right to speak freely and the right
to refrain from speaking at all." Janus, 138
S.Ct. at 2463 (internal quotation marks and citation
omitted). As Janus recognized, the latter is perhaps
the more sacred of the two rights. See id. at 2463-
64. After all, the "choice of a speaker not to propound
a particular point of view . . . is presumed to lie beyond
the government's power to control." Boy Scouts
of Am. v. Dale, 530 U.S. 640, 654 (2000) (citation
apply the MHRA to the Larsens in the manner Minnesota
threatens is at odds with the "cardinal constitutional
command" against compelled speech. Janus, 138
S.Ct. at 2463. The Larsens do not want to make videos
celebrating same-sex marriage, which they find objectionable.
Instead, they wish to actively promote opposite-sex weddings
through their videos, which at a minimum will convey a
different message than the videos the MHRA would require them
to make. Even if the Larsens' desire to selectively speak
is "provocative" and "stirs people to
anger," Terminiello, 337 U.S. at 4, Minnesota
cannot "coerce[ them] into betraying their
convictions" and promoting "ideas they find
objectionable," Janus, 138 S.Ct. at 2464.
Compelling speech in this manner, as the Supreme Court made
clear in Janus, "is always demeaning."
Id. This is especially true here, because Minnesota
insists that the Larsens must be willing to convey
the same "positive" message in their videos about
same-sex marriage as they do for opposite-sex marriage.
attempts to downplay this injury by pointing out that the
MHRA would not require the Larsens to convey any specific
message in their videos. Even if the Larsens must be willing
to produce "positive" videos about same-sex
marriage, Minnesota argues, they need not actually do so
unless a customer requests a film with this point of view.
aside from its implausibility-for it seems unlikely that any
same-sex couple would request a video condemning their
marriage-this argument does not get Minnesota far under First
Amendment doctrine. The Supreme Court has recognized that the
government still compels speech when it passes a law that has
the effect of foisting a third party's message on a
speaker. In Hurley, for example, it held that
Massachusetts could not use its public-accommodation law to
require the sponsors of a private parade to include a group
of gay, lesbian, and bisexual individuals who wished to march
while "carrying [their] own banner." 515 U.S. at
572-73. The Court explained that compelling the inclusion of
others impermissibly "declar[ed] the sponsors'
speech itself to be [a] public accommodation" in a way
that "alter[ed] the expressive content of their
in Tornillo, the Supreme Court addressed a Florida
statute that required newspapers that published attacks on
the "personal character or official record" of
political candidates to publish the candidates' responses
too, free of cost. 418 U.S. at 244. Forced inclusion, the
Court reasoned, "fail[ed] to clear the barriers of the
First Amendment" because it impermissibly
"intru[ded] into the function of the editors."
Id. at 258. The lesson from Tornillo is
that the First Amendment is relevant whenever the government
compels speech, regardless of who writes the script.
MHRA also operates in this case as a content-based regulation
of the Larsens' speech, even if, as the Supreme Court has
recognized, the MHRA does not, "[o]n its face, . . . aim
at the suppression of speech." Roberts v. U.S.
Jaycees, 468 U.S. 609, 623 (1984). A content-based
regulation "[m]andat[es] speech that a speaker would not
otherwise make" or "exacts a penalty on the basis
of the content of" speech. Riley v. Nat'l
Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 795
(1988) (quoting Tornillo, 418 U.S. at 256). By
treating the Larsens' choice to talk about one
topic-opposite-sex marriages-as a trigger for compelling them
to talk about a topic they would rather avoid-same-sex
marriages-the MHRA does both at once. In fact, by requiring
the Larsens to convey "positive" messages about
same- sex weddings, it even goes a step further. Cf. Reed
v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015)
(describing content-based regulations as those that operate
based on "the topic discussed or the idea or message
Supreme Court's decision in Tornillo highlights
the problems with content-based regulations. Even if a
regulation that requires speech does not directly
"prevent[ speakers] from saying anything [they]
wish," it still exacts a penalty. Tornillo,
418 U.S. at 256 (citation omitted). In Tornillo, the
penalty threatened to drive "editors [to] conclude that
the safe course [was] to avoid controversy" and to
simply not "publish news or commentary arguably within
the reach of the . . . statute." Id. at 257.
Here, "the safe course" for the Larsens would be to
avoid the wedding-video business altogether. Yet this type of
compelled self-censorship, a byproduct of regulating speech
based on its content, unquestionably "dampens the vigor
and limits the variety of public debate." Id.
that compel speech or regulate it based on its content are
subject to strict scrutiny, which will require Minnesota, at
a minimum, to prove that the application of the MHRA to the
Larsens is "narrowly tailored to serve [a] compelling
state interest." Reed, 135 S.Ct. at 2226;
see also, e.g., Dale, 530 U.S. at 654
("[T]he choice of a speaker not to propound a particular
point of view . . . is presumed to lie beyond the
government's power to control." (citation omitted));
Hurley, 515 U.S. at 573 ("[T]he fundamental
rule of protection under the First Amendment[ is] that a
speaker has the autonomy to choose the content of his own
message."); cf. Janus, 138 S.Ct. at 2464
(suggesting that "a law commanding 'involuntary
affirmation' of objected-to beliefs would require
'even more immediate and urgent grounds'
than a law demanding silence" (emphasis added) (quoting
W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,
633 (1943))); Gralike v. Cook, 191 F.3d 911, 919-20
(8th Cir. 1999) (applying strict scrutiny to a law forcing
candidates to speak about term limits). In an as-applied
challenge like this one, the focus of the strict-scrutiny
test is on the actual speech being regulated, rather than how
the law might affect others who are not before the court.
See Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th
State asserts an interest in ensuring "that all people
in Minnesota [are] entitled to full and equal enjoyment of
public accommodations and services." (internal quotation
marks and citation omitted). This interest has a substantial
constitutional pedigree and, generally speaking, we have no
doubt that it is compelling. For example, the Supreme Court
has said that antidiscrimination laws typically "are
well within the State's . . . power to enact when a
legislature has reason to believe that a given group is the
target of discrimination." Hurley, 515 U.S. at
572. Indeed, the MHRA itself withstood a constitutional
challenge after Minnesota applied it to compel a "large
and basically unselective" social club to accept female
members. Roberts, 468 U.S. at 621-22, 626-27. And
like the dissent, we have little doubt that Minnesota had
powerful reasons for extending the MHRA to protect its
citizens against sexual-orientation discrimination. See
post at 31-32.
that is not the point. Even antidiscrimination laws, as
critically important as they are, must yield to the
Constitution. And as compelling as the interest in preventing
discriminatory conduct may be, speech is treated differently
under the First Amendment. See Hurley, 515 U.S. at
579 ("While the law is free to promote all sorts of
conduct in place of harmful behavior, it is not free to
interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one, however
enlightened either purpose may strike the government.").
As the Supreme Court has explained, even if the government
may prohibit "the act of discriminating against
individuals in the provision of publicly available goods,
privileges, and services," it may not "declar[e]
[another's] speech itself to be [a] public
accommodation" or grant "protected individuals . .
. the right to participate in [another's] speech."
Id. at 572-73 (emphasis added).
is particularly instructive. When Massachusetts forced the
organizers of a private parade to include a group that wished
"to march in the parade as a way to express pride in
their Irish heritage as openly gay, lesbian, and bisexual
individuals," id. at 560-61, the Supreme Court
concluded that applying the State's public-accommodation
law in this way violated the organizers' freedom of
speech, id. at 566. Although antidiscrimination laws
are generally constitutional, the Court reasoned, a
"peculiar" application that required speakers
"to alter the[ir] expressive content" was
not. Id. at 572-73 (emphasis added). In short, the
Court drew the line exactly where the Larsens ask us to here:
to prevent the government from requiring their speech to
serve as a public accommodation for others.
in Dale, the Supreme Court held that the Boy Scouts
had the right to expel a gay-rights activist, despite a New
Jersey antidiscrimination law that otherwise prohibited the
action. 530 U.S. at 644. The reason, the Court said, was that
the Boy Scouts' opposition to homosexuality was
expressive and "the forced inclusion of [the activist]
would [have] significantly affect[ed] its expression."
Id. at 650-52, 656; see also id. at 659
("[T]he First Amendment prohibits the State from
imposing [an inclusion] requirement through the application
of its public accommodations law."). Like
Hurley, Dale makes clear that once conduct
crosses over to speech or other expression, the
government's ability to regulate it is limited.
these cases demonstrate, regulating speech because it is
discriminatory or offensive is not a compelling state
interest, however hurtful the speech may be. It is a
"bedrock principle . . . that the government may not
prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable."
Texas v. Johnson, 491 U.S. 397, 414 (1989); see
also Masterpiece Cakeshop, 138 S.Ct. at 1731 ("[I]t
is not . . . the role of the State or its officials to
prescribe what shall be offensive."). After all, the
Westboro Baptist Church could carry highly inflammatory signs
at military funerals, see Snyder v. Phelps, 562 U.S.
443, 448- 49, 460-61 (2011), the Nazis could march in areas
heavily populated by Jewish residents, see Nat'l
Socialist Party of Am. v. Village of Skokie, 432 U.S.
43, 43-44 (1977) (per curiam), and an activist could burn the
American flag as a form of political protest, see
Johnson, 491 U.S. at 399.
cases relied upon by Minnesota and the dissent are not to the
contrary. In Roberts, for example, the Supreme Court
emphasized that an all-male social club had failed to show
that a law requiring the admission of female members
"impose[d] any serious burdens on the male members'
freedom of expressive association" or "impede[d]
the organization's ability to engage in . . . protected
activities or to disseminate its preferred views." 468
U.S. at 626-27; see also id. at 627 (highlighting
that the law "impose[d] no restrictions on the
organization's ability to exclude individuals with
ideologies or philosophies different from those of its
existing members"). So too in Hishon v. King &
Spalding, in which the Court emphasized that a law firm
"ha[d] not shown how its ability to [exercise its
expressive and associational rights] would be inhibited by a
requirement that it consider [a woman] for partnership on her
merits." 467 U.S. 69, 78 (1984). The unmistakable
message is that antidiscrimination laws can regulate conduct,
but not expression.
if Minnesota were correct, there is no reason it would have
to stop with the Larsens. In theory, it could use the MHRA to
require a Muslim tattoo artist to inscribe "My religion
is the only true religion" on the body of a Christian if
he or she would do the same for a fellow Muslim, or it could
demand that an atheist musician perform at an evangelical
church service. In fact, if Minnesota were to do what other
jurisdictions have done and declare political affiliation or
ideology to be a protected characteristic, then it could
force a Democratic speechwriter to provide the same services
to a Republican, or it could require a professional
entertainer to perform at rallies for both the Republican and
Democratic candidates for the same office. See,
e.g., D.C. Code § 2-1402.31; Seattle, Wash., Mun.
Code §§ 14.06.010, .020(L), 030(B); cf.
Hurley, 515 U.S. at 571-72 (recognizing that states have
the power to create additional protected classes).
so, Minnesota argues that we should apply intermediate
scrutiny based on a theory that, once again, turns on the
distinction between conduct and speech. Specifically, when
"'speech' and 'nonspeech' elements are
combined in the same course of conduct" and the
government seeks to neutrally regulate the non-speech
element, intermediate scrutiny applies under the
incidental-burden doctrine. Johnson, 491 U.S. at 407
(quoting United States v. O'Brien, 391 U.S. 367,
376 (1968)); see also Holder v. Humanitarian Law
Project, 561 U.S. 1, 26-27 (2010) (explaining that a
regulation must be content-neutral under this doctrine).
According to Minnesota, the MHRA only incidentally burdens
speech because it neutrally ...