In a thorough, 63-page opinion, Chief U.S. District Court Judge John Tunheim ruled that the Larsens' Telescope Media Group would be violating the state law by posting a notice that he likened to a "whites only" sign from the pre-civil rights era. "Posting language on a website telling potential customers that a business will discriminate on the basis of sexual orientation is part of the act of sexual orientation discrimination itself," Tunheim wrote in the Sept. 20 decision.
The Larsens, represented by the anti-gay religious liberty group Alliance Defending Freedom, argued that the state law amounted to an attempt to stamp out opposition to same-sex marriage. Tunheim rejected the argument but specified that the couple was free to post a notice opposing same-sex marriage and free to decide not to post their videos of same-sex weddings.
Tunheim's decision is in line with rulings in somewhat similar cases by state appellate courts in three other states: Colorado, New Mexico, and Washington. Over the span of a few years, the state courts enforced anti-LGBT discrimination laws by penalizing a photographer in New Mexico, a florist in Washington, and a baker in Colorado for refusing to provide services for same-sex weddings.
The Colorado baker's appeal is now before the U.S. Supreme Court, which is likely to hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission during its December calendar. Despite the uniformity of rulings in such cases, however, Supreme Court advocates and experts previewing the case in advance of First Monday expect a closely divided decision with Justice Anthony M. Kennedy likely to cast the pivotal vote.
The case was identified as one of the new term's potential blockbusters as soon as the justices finally agreed to hear Jack Phillips' appeal as the previous term ended in late June. The case drew that much extra attention when the Trump administration intervened earlier this month [Sept. 7] with a precedent-defying friend-of-the-court brief supporting Phillips' claim for a free-speech exemption from Colorado's anti-LGBT discrimination law.
Phillips, a self-identified Christian like the Larsens in Minnesota, operates a family-friendly bake shop in the Denver suburb of Lakewood and views his personalized cakes as artistic expressions protected by the First Amendment. David Mullins and Charlie Craig came into his shop one morning in July 2012 to order a cake for a reception to celebrate their earlier wedding in Massachusetts. Phillips told them he would sell them an off-the-shelf cake but said he did not make customized cakes for same-sex weddings.
Mullins and Craig got a cake, for free, from a different baker, but only after publicizing the confrontation and filing a complaint with the Colorado Civil Rights Commission. The commission ordered Phillips to make cakes for same-sex weddings on the same terms as opposite-sex weddings, to re-educate his staff on the state civil rights law, and to provide quarterly reports of compliance with the order. The Colorado Court of Appeal upheld the order, and the Colorado Supreme Court declined to review.
Phillips raised separate but related constitutional claims in asking the U.S. Supreme Court to review the case. He contended that the order to serve same-sex weddings amounted to compelled speech in support of same-sex weddings and an unconstitutional burden on his free exercise of religion. The government had not been asked for its views, but the Trump administration backed Phillips in a brief signed by the then-acting solicitor general Jeffrey Wall but by none of the career attorneys in the solicitor general's office.
The government narrowed the case somewhat by passing over the free-exercise issue and by acknowledging well known Supreme Court precedents generally rejecting claimed First Amendment exemptions from generally applicable public accommodations laws. Phillips' compelled speech claim was viewed as an exception, however, because a custom-made cake was an "inherently expressive" product — unlike, for example, a hotel room or a limousine for the happy couple.
Earlier, the commission had urged the justices not to hear the case by noting that Phillips had cut Mullins and Craig off before they had any chance to ask for a particular design. Some commentators have now picked up on the point by suggesting the compelled-speech claim cannot be decided on the basis of this record.
In the American Civil Liberties Union's term-opening preview, deputy legal director Louise Melling described the government's brief as the first time ever that the government had backed a constitutional exemption from anti-discrimination laws. As to the compelled speech claim, Melling contended that Phillips should still lose even if Mullins and Craig had asked for a design or decoration specifically celebrating same-sex unions.
The case poses a seeming quandary for Kennedy, who can rightly claim gay rights and freedom of speech as parts of his three-decade legacy. The conservative bloc that dissented in the marriage equality decision two years ago, with Neil Gorsuch now in Antonin Scalia's seat, may have no qualms about narrowing rights for same-sex couples. But given the weight of authority, they should hesitate before blowing a constitutional hole through well-established anti-discrimination laws.
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