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Telescope Media Group v. Lindsey

United States District Court, D. Minnesota

September 20, 2017

TELESCOPE MEDIA GROUP, a Minnesota corporation, and CARL LARSEN and ANGEL LARSEN, founders and owners of Telescope Media Group, Plaintiffs,
v.
KEVIN LINDSEY, in his official capacity as Commissioner of the Minnesota Department of Human Rights, and LORI SWANSON, in her official capacity as Attorney General of Minnesota, Defendants.

          Jeremy D. Tedesco and Jacob Paul Warner, ALLIANCE DEFENDING FREEDOM, and Renee Carlson, CARLSON LAW, PLLC, for plaintiffs.

          Alethea M. Huyser and Janine Wetzel Kimble, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM Chief Judge United States District Court

         Plaintiffs Carl and Angel Larsen and Telescope Media Group (“TMG”)[1] bring a pre-enforcement challenge to the ban on sexual orientation discrimination in public accommodations and contracting in the Minnesota Human Rights Act (“MHRA”). The Larsens operate a videography business, and they plan to expand into the wedding video business as a public accommodation. They argue that the MHRA's requirement that they serve same-sex couples seeking wedding video services violates the Larsens' First and Fourteenth Amendment rights to free speech, expressive association, free exercise, equal protection, and due process. The Larsens move for a preliminary injunction, seeking an order from the Court preventing enforcement of the MHRA against them in their future wedding video business. Defendants Commissioner of the Minnesota Department of Human Rights Kevin Lindsey (“Commissioner Lindsey”), and Minnesota Attorney General Lori Swanson (“Attorney General Swanson”) (collectively “Defendants”) move for dismissal for lack of subject-matter jurisdiction and failure to state a claim.

         The Court finds that contrary to Defendants' arguments, Attorney General Swanson is not currently entitled to Eleventh Amendment immunity. However, the Court also finds that to the extent the Larsens claim that the MHRA would require them to publicize videos of same-sex weddings online, the Larsens have no standing because the alleged injury-in-fact is too abstract and hypothetical to present a genuine Article III case or controversy. As to the Larsens' claims regarding the MHRA's requirement that they serve same-sex couples in their wedding video business, the Larsens have standing and their claims are ripe. But the Court will dismiss the Larsens' challenges to this application of the MHRA because all of the Larsens' claims fail as a matter of law. Thus, the Court will grant Defendants' motion to dismiss and will deny the Larsens' motion for preliminary injunction as moot.

         BACKGROUND

         I. THE MINNESOTA HUMAN RIGHTS ACT (MHRA)

         Minnesota has outlawed invidious discrimination in public accommodations since 1885.[2] While the early antidiscrimination law was aimed at protecting African-Americans from denials of equal opportunity in public accommodations and the “stigmatizing injury” that resulted from such discrimination, the MHRA's scope has “progressively broadened” to outlaw discrimination against a number of historically disadvantaged groups. Roberts v. U.S. Jaycees, 468 U.S. 609, 624-25 (1984). The Minnesota Legislature added “sexual orientation” to the list of protected characteristics more than two decades ago. Act of Apr. 2, 1993, ch. 22, 1993 Minn. Laws 121 (codified as amended at Minn. Stat. §§ 363A.01-363A.44).

         Two types of “unfair discriminatory practice” defined in the MHRA are relevant to this case. First, the Public Accommodations Provision: “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[3] because of . . . sexual orientation . . . .” § 363A.11, subd. 1(a)(1).

         Second, the Business Discrimination Provision:

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 business purpose.

§ 363A.17(3).

         Commissioner Lindsey leads the Minnesota Department of Human Rights (“MDHR”) and is charged with interpreting and enforcing the MHRA's substantive provisions. See § 363A.06. MDHR investigates allegations of MHRA violations and may pursue administrative enforcement actions to ensure compliance with the MHRA. See § 363A.28. MDHR and private parties may also bring civil actions “seeking redress for an unfair discriminatory practice, ” § 363A.33, subds. 1, 6, and may pursue declaratory and injunctive relief, monetary damages, and costs and fees, id., subd. 6 (citing § 363A.29, subds. 3-6). In addition to civil enforcement mechanisms, an unfair discriminatory practice in violation of the MHRA is a misdemeanor.[4] § 363A.30, subd.

         II. LEGALIZATION OF SAME-SEX MARRIAGE

         In 2013 Minnesota enacted legislation to legalize same-sex marriage. Act of May 14, 2013, ch. 74, 2013 Minn. Laws (codified as amended at Minn. Stat. §§ 363A.26, 517.01-23, 518.07). Subsequently, MDHR publicly announced interpretive guidance for businesses providing wedding-related services, stating:

[State law] does not exempt individuals, businesses, nonprofits, or the secular business activities of religious entities from non-discrimination laws based on religious beliefs regarding same-sex marriage.
Therefore, a business that provides wedding services such as cake decorating, wedding planning or catering services may not deny services to a same-sex couple based on their sexual orientation.
To do so would violate the protections for sexual orientation laid out in the [MHRA]. The individuals denied services could file a claim with [MDHR] against the entity that discriminated against them.

(First Am. Verified Compl. for Declaratory & Injunctive Relief (“Am. Compl.”) ¶ 61, Jan. 13, 2017, Docket No. 13 (quoting Minn. Dep't of Human Rights, Minnesota's Same-Sex Marriage Law, https://mn.gov/mdhr/yourrights/who-is-protected/sexual-orientation/ same-sex-marriage/ (last visited Jan. 10, 2017))); see also Id. ¶¶ 62-64 (citing similar publicly available MDHR guidance).)

         III. THE LARSENS' BUSINESS

         The Larsens are Minnesota residents; they operate TMG, a for-profit Minnesota company incorporated in 2012. (Id. ¶¶ 1, 22-25, 79.) The Larsens create films and other media for clients. (Id. ¶¶ 80-82, 89.) The parties do not dispute that because TMG offers videography services to the general public, it is a “place of public accommodation” as defined in § 363A.03, subd. 34.

         The Larsens are Christian. (Am. Compl. ¶¶ 72-78.) In their work at TMG, the Larsens generally exert a large amount of editorial and creative control over the media they produce for clients. (Id. ¶¶ 88, 90-91, 100-07.) The Larsens seek to create products that both satisfy their clients' needs and also are consistent with their religious beliefs. (Id. ¶¶ 84-85, 89, 93, 109.) The Larsens allege that they will “gladly work with all people” regardless of sexual orientation or religious belief, but they decline requests for their creative services unless “they can use their story-telling talents and editorial control to convey only messages they are comfortable conveying given their religious beliefs.” (Id. ¶¶ 92, 95.) This means that the Larsens decline requests to work on projects that “promote any conception of marriage other than as a lifelong institution between one man and one woman.” (Id. ¶ 96.) The Larsens also decline some client requests because they receive more requests than they have capacity to complete. (Id. ¶ 98.)

         The Larsens allege that they are planning to expand their videography services to include wedding video services with the purpose of “counteract[ing] the current powerful cultural narrative undermining the historic, biblically-orthodox definition of marriage as between one man and one woman” and expressing their opposition to same-sex marriage. (Id. ¶ 122; see also Id. ¶¶ 3-5, 113-21, 123-30, 154-56, 159, 174.) They plan to publicly promote their wedding videos to a broad audience on their website and on “other internet mediums, like Twitter and Facebook, ” in order “to achieve maximum cultural impact” and to “affect the cultural narrative regarding marriage.” (Id. ¶¶ 135-36.) The Larsens allege that “[p]ublic promotion of the wedding videos . . . will be mandatory in every wedding videography contract into which the Larsens enter.” (Id. ¶ 138.)

         The Larsens maintain that the only way that they will be able to achieve their desired expressive goal - to create videos promoting their view of marriage - is if they operate as a provider of wedding video services for paying clients. They argue that (1) “[i]t is not financially feasible . . . to tell stories about marriage with the frequency and quality they desire if they cannot charge for their work”; and (2) “[g]iven the nature of the wedding industry and the fact that weddings are typically not open to the general public, the Larsens would not have access to and be able to capture weddings if couples did not hire them for their weddings.” (Id. ¶¶ 144, 147.)

         The Larsens allege that they are unable to start offering their services “until they know whether they can operate in the wedding industry in accordance with their religious beliefs.” (Id. ¶ 156.) They claim that if they operate a wedding video service, they will be forced to choose between violating the MHRA - and facing the associated civil and/or criminal consequences - or offering wedding video services to same-sex couples in violation of their religious beliefs. (See Id. ¶¶ 160-65.) They allege that if they carry out their plan to expand into the wedding video business, they will decline requests to make wedding videos for same-sex couples[5] and will post a statement publicizing this position on their website[6] - acts that the Larsens acknowledge would violate the MHRA's Public Accommodations and/or Business Discrimination Provisions as interpreted by MDHR. (Id. ¶¶ 158, 160, 165-66, 168, 170.) Thus, the Larsens argue the MHRA's prohibition on sexual orientation discrimination is the reason why the Larsens have not expanded into the business of wedding videos. (Id. ¶ 173.)

         IV. PROCEDURAL HISTORY

         On December 6, 2016, the Larsens initiated this action against Defendants in their official capacities. (Id. ¶¶ 26, 28-30; see also Verified Compl. for Declaratory & Injunctive Relief ¶¶ 26, 28-30, Dec. 6, 2016, Docket No. 1.) The Larsens assert seven as-applied pre-enforcement constitutional challenges to MHRA's Public Accommodations and Business Discrimination Provisions. They argue the law impermissibly infringes their First Amendment rights to free speech, expressive association and free exercise; creates an unconstitutional condition on entry into the wedding video market; and violates their Fourteenth Amendment rights to equal protection and to substantive and procedural due process. (Am. Compl. ¶¶ 194-328.) The Larsens seek injunctive and declaratory relief excepting them from the MHRA's ban on sexual orientation discrimination, as well as costs and fees pursuant to 42 U.S.C. § 1988. (Id. at 45-46.)

         On January 13, 2017, the Larsens filed a motion for preliminary injunction. On February 15, 2017, Defendants filed a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Court now considers both motions.

         ANALYSIS

         I. LACK OF JURISDICTION

         The Court first addresses the threshold jurisdictional questions. Defendants make three arguments for dismissal under Rule 12(b)(1): (1) pursuant to the Eleventh Amendment, the Court lacks jurisdiction over the claims against Attorney General Swanson; (2) the Larsens lack standing; and (3) the Larsens' claims are not ripe for review.

         A. Standard of Review

         Federal courts lack jurisdiction over claims against defendants entitled to immunity under the Eleventh Amendment. E.g., Roe v. Nebraska, 861 F.3d 785, 789 (8thCir. 2017) (finding a complaint against state officials entitled to Eleventh Amendment immunity was properly dismissed pursuant to Rule 12(b)(1)). Similarly, if a plaintiff cannot satisfy Article III's case-or-controversy requirements there is no federal subject-matter jurisdiction. KCCP Tr. v. City of N. Kan. City, 432 F.3d 897, 899-900 (8th Cir. 2005) (treating a motion to dismiss for lack of ripeness as a Rule 12(b)(1) motion); Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002) (“[A] standing argument implicates Rule 12(b)(1).”).

         In a facial attack on jurisdiction under Rule 12(b)(1) such as this, “the court merely [needs] to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914 (8th Cir. 2015) (alteration in original) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). “Accordingly, ‘the court restricts itself to the face of the pleadings and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).'” Id. (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). “In other words, in a facial challenge, the court ‘determine[s] whether the asserted jurisdictional basis is patently meritless by looking to the face of the complaint, and drawing all reasonable inferences in favor of the plaintiff.'” Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d 1012, 1017 (D. Minn. 2015) (alteration in original) (quoting Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8thCir. 2005)).

         B. Eleventh Amendment Immunity

         “The Eleventh Amendment generally bars suits by private citizens against a state in federal court.” Balogh v. Lombardi, 816 F.3d 536, 544 (8th Cir. 2016). In Ex Parte Young, the Supreme Court articulated an exception to Eleventh Amendment immunity for state officers who “are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, ” holding that such officers may be enjoined from taking unconstitutional enforcement action. 209 U.S.123, 156 (1908). “[T]o be amenable for suit challenging a particular statute the attorney general must have ‘some connection with the enforcement of the act.'” 281 Care Comm. v. Arneson (281 Care I), 638 F.3d 621, 632 (8th Cir. 2011) (quoting Reprod. Health Servs. v. Nixon, 428 F.3d 1139, 1145-46 (8th Cir. 2005)). In 281 Care I, the Eighth Circuit found that the Ex Parte Young exception applied in a lawsuit challenging a state statute because of the following three connections between the Attorney General and the statute's enforcement:

(1) the attorney general “may, upon request of the county attorney assigned to a case, become involved in a criminal prosecution of [the challenged statute], ” (2) “the attorney general is responsible for defending the decisions of the [state agency to whom enforcement of the challenged statute is delegated]-including decisions pursuant to [the challenged statute]-if they are challenged in civil court, ” and (3) “the attorney general appears to have the ability to file a civil complaint under [the challenged statute].” 281 Care Comm. v. Arneson (281 Care II), 766 F.3d 774, 796 (8th Cir. 2014) (quoting 281 Care I, 638 F.3d at 633).

         Here, Attorney General Swanson has the same connections to enforcement of the MHRA as the Attorney General in 281 Care I. First, she “may, upon request of the county attorney assigned to a case, become involved in a criminal prosecution of” the MHRA. 281 Care I, 638 F.3d at 632; see also Minn. Stat. § 8.01 (“Upon request of the county attorney, the attorney general shall appear in court in such criminal cases as the attorney general deems proper.”). Second, Attorney General Swanson “is responsible for defending” MDHR's decisions pursuant to the MHRA if they are challenged in civil court. 281 Care I, 638 F.3d at 632; see also Minn. Stat. § 8.06 (“The attorney general shall act as the attorney for all state officers and all boards or commissions created by law in all matters pertaining to their official duties.”); Minn. Stat. § 363A.32, subd. 1 (“The attorney general shall be the attorney for [MDHR].”). Third, Attorney General Swanson “appears to have the ability to file a civil complaint [for violation of the MHRA], as Minnesota law gives the attorney general broad discretion to commence civil actions, see Minn. Stat. § 8.01, and [§ 363A.33] allows any person . . . to file a civil complaint.” 281 Care I, 638 F.3d at 632.

         The Court is bound by the Eighth Circuit's holding in 281 Care I. Therefore, the Court has jurisdiction over the claims for injunctive relief against Attorney General Swanson under Ex Parte Young.

         C. Justiciability

         Defendants argue the Court should grant the motion to dismiss on two justiciability grounds, specifically the Larsens lack standing and their claims are not ripe. To evaluate justiciability, the Court distinguishes between two separate alleged injuries. First, the Larsens allege that if they sell wedding video services to the public, the MHRA's requirement that they serve same-sex couples, effectively requiring them to create videos of same-sex weddings, would violate the Larsens' constitutional rights.[7]Second, the Larsens allege that “public promotion of the wedding videos [created by TMG] will be mandatory in every wedding videography contract into which the Larsens enter.” (Am. Compl. ¶ 138). Based on this allegation, the Larsens claim the following:

The Larsens want to create films that will be played at weddings, published on their website, and shared via social media to tell a story of love, commitment, and vision for the future that encourages viewers to see biblical marriage as the sacred covenant God designed it to be. But if they do so, Defendants require that they also tell stories promoting other types of marriage, including same-sex marriage, in the same way and through the same channels.

(Pls.' Opp. to Defs.' Mot. to Dismiss (“Pls.' Opp.”) at 28, Mar. 8, 2017, Docket No. 40 (citations omitted).) The Larsens argue that if they structure their wedding video contracts as planned - in a manner that contractually obligates them to post all TMG wedding videos online - the Larsens would be unconstitutionally compelled to post videos of same-sex weddings online by operation of the Business Discrimination Provision.

         1. Standing

         “Whether a plaintiff has standing to sue ‘is the threshold question in every federal case, determining the power of the court to entertain the suit.'” McClain v. Am. Econ. Ins. Co., 424 F.3d 728, 731 (8th Cir. 2005) (quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000)). “The ‘irreducible constitutional minimum of standing' is that a plaintiff show (1) an ‘injury-in-fact' that (2) is ‘fairly . . . trace[able] to the challenged action of the defendant' and (3) is ‘likely . . . [to] be redressed by a favorable decision' in court.” ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011) (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). The alleged injury-in-fact must be “(a) concrete and particularized” and “(b) ‘actual or imminent, '” as opposed to “‘conjectural' or ‘hypothetical.'” Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). “A party invoking federal jurisdiction has the burden of establishing standing ‘for each type of relief sought.'” Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 793 (8thCir. 2016) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

         In the First Amendment context, “two types of injuries may confer Article III standing to seek prospective relief.” Id. at 794 (quoting Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)). First, the Larsens could establish an imminent threat of harm sufficient to confer standing by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). A plaintiff in such a situation is “not . . . required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U.S. 179, 188 (1973).

         Second, “when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged.” Sec'y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984). Thus, self-censorship in the face of a credible threat of future prosecution or civil enforcement constitutes an ongoing injury-in-fact sufficient to confer Article III standing. Klahr, 830 F.3d at 794 (discussing a “chilling effect” due to “a credible threat of future [criminal] prosecution” (quoting Ward, 321 F.3d at 1267)); see also 281 Care I, 638 F.3d at 630 (“[N]on-criminal consequences contemplated by a challenged statute can also contribute to the objective reasonableness of alleged chill.”). But self-censorship founded on alleged subjective chill caused by a statute is not enough to support standing, and “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” 281 Care I, 638 F.3d at 627 (quoting Babbitt, 442 U.S. at 298). Defendants argue that the Larsens have not alleged an injury-in-fact.[8]

         a. Making Wedding Videos for Same-Sex Couples

         First, the Court examines the Larsens' desire to sell wedding video services to the public, yet refuse to serve same-sex couples. Here, the Larsens allege both types of injuries courts have found sufficient to establish standing in pre-enforcement First Amendment challenges, as articulated in Klahr. First, the Larsens allege plans to operate TMG as a public accommodation in a manner that would clearly violate the Public Accommodations and Business Discrimination Provisions because they would decline to serve same-sex couples.[9] (Am. Compl. ¶¶ 158, 167-68.) The Larsens allege that at least one same-sex couple already requested that TMG produce their wedding video, (id. ¶ 169), only increasing the likelihood that, if they did expand into the wedding video business, they would end up turning away same-sex couples in violation of the MHRA. The Larsens also colorably argue that the operation of the statute would violate their constitutional rights; for purposes of evaluating standing, the Larsens “need[] only to establish that [they] would like to engage in arguably protected speech.” 281 Care I, 638 F.3d at 627 (emphasis added).

         The Larsens also allege a credible threat of enforcement, contrary to Defendants' argument that the Larsens have asserted only a hypothetical injury-in-fact based on “[s]ubjective concern about how [the MHRA] might apply.” (Defs.' Mem. of Law in Supp. of Mot. to Dismiss (“Defs.' Mem.”) at 6, Feb. 15, 2017, Docket No. 34.) MDHR's interpretation of the statute's application to wedding vendors is clear. See Minn. Dep't of Human Rights, Minnesota's Same-Sex Marriage Law, https://mn.gov/mdhr/yourrights /who-is-protected/sexual-orientation/same-sex-marriage/ (last visited Aug. 8, 2017). And the Larsens allege MDHR took enforcement actions against a wedding vendor very recently - in 2014 - after sending testers to investigate business's practices. (Am. Compl. ¶¶ 43-47, 66-71, 164-65.) To the extent Defendants argue there is no credible threat of enforcement simply because there is no telling at this time whether they would ever decide to exercise their enforcement discretion against the Larsens, courts have found that speculation as to whether an entity charged with enforcement will actually choose to enforce a law against a plaintiff does not defeat standing. See, e.g., 281 Care I, 638 F.3d at 627-31. “We assume [MDHR] would prosecute violators of [the MHRA], given the opportunity, because it has vigorously defended the [statute] and has never suggested that it would refrain from enforcement.” Krantz v. City of Fort Smith, 160 F.3d 1214, 1217 (8th Cir. 1998). Thus, the Larsens have alleged an imminent, non-hypothetical injury-in-fact based on their plan to engage in conduct proscribed by statute - refusing to serve same-sex couples when operating as a public accommodation providing wedding video services - coupled with a credible threat of prosecution.

         Second, the Larsens allege First Amendment chilling based on the notion that their wedding video business would arguably involve exercise of their First Amendment rights, but they have refrained from offering their expressive business services in the wedding field because, if they did so, they would operate in a way that violates the MHRA. (Am. Compl. ¶¶ 154-74.) The Court finds that because there is a credible threat of enforcement, the Larsens' “decision to chill [their activities] in light of the [MHRA is] ‘objectively reasonable.'” 281 Care II, 766 F.3d at 780-81 (quoting 281 Care I, 638 F.3d at 627). Therefore, the Larsens have alleged self-censorship sufficient to establish standing regarding their claim that the MHRA would unconstitutionally force them to create videos of same-sex weddings if they operated as a wedding video services public accommodation.

         b. Publicizing Videos of Same-Sex Weddings

         Next the Court considers whether the Larsens have standing to challenge the validity of the Business Discrimination Provision's ban on “discriminat[ion] in the basic terms, conditions, or performance of the contract because of a person's . . . sexual orientation, ” § 363A.17(3), as applied to the Larsens' allegation that they will write contracts that mandate them to publicize all TMG wedding videos online. The Court concludes that, as for this aspect of the Larsens' pre-enforcement challenge, the Larsens have failed to satisfy Article III's injury-in-fact requirement because: (1) they failed to allege an intention to engage in a course of conduct proscribed by statute; (2) they failed to demonstrate a credible threat of enforcement; and (3) any First Amendment chilling is unreasonable.

         First, it is not clear that the Larsens have alleged an intention to engage in a course of conduct[10] that is proscribed by statute. See Klahr, 830 F.3d at 794. The Business Discrimination Provision bars sexual orientation discrimination in “the basic terms, conditions, or performance of [a] contract” by a person engaged in a trade, business, or the provision of services. § 363A.17(3). The most plausible reading of the phrase “basic terms” is that it refers to the elements of a contract that make up the core of the deal, or in other words, terms that are necessary in order to make the contract enforceable.[11] For example, price and services offered are “basic terms” of a contract for the sale of services, so the Larsens would be barred from charging a higher price or declining to provide certain services because of a customer's sexual orientation.

         Additionally, the purpose of the Business Discrimination Provision is to shield people in protected classes from invidious discrimination that prevents them from benefiting from contracts on equal terms as everyone else.[12] But a mandatory requirement that the Larsens post all wedding videos online and adopt them as the Larsens' own speech is not a provision that benefits customers. The allegations in the Amended Complaint demonstrate that the Larsens' plan to post wedding videos online is meant to fulfill their own personal goal of communicating with the public about their religious beliefs. (E.g., Am. Compl. ¶¶ 135-38 (stating that the Larsens plan to promote wedding videos “proclaiming God's design for marriage . . . to a broader audience to achieve maximum cultural impact, ” including, for example, publishing the videos online, and stating that such public promotion “will be mandatory in every wedding videography contract”).) Thus, a contractual provision obligating the Larsens to post wedding videos online - a term wholly unrelated to any consideration exchanged in the contract or any benefit provided to the customer - is not a “basic term” as contemplated by the Business Discrimination Provision.[13]

         Second, there is no credible threat of prosecution or civil enforcement. This is due, in part, to the low likelihood that MDHR would interpret the MHRA in line with the Larsens' minimally colorable reading of the statute.[14] Furthermore, Defendants' counsel made clear at the hearing that Defendants - charged with interpreting and enforcing the statute - do not believe the MHRA would require the Larsens to post videos of same-sex weddings online. (Tr. of Mots. Hr'g at 25:21-24, June 16, 2017, Docket No. 52 (explaining that what videos the Larsens post online “would be utterly and completely within [the Larsens'] control and discretion”).)[15] Additionally, the Larsens have not alleged a history of enforcement or any allegations showing MDHR agrees with their reading of the Business Discrimination Provision.

         The fear that MDHR would ever take enforcement action against the Larsens for refusing to post videos of same-sex weddings online is “imaginary or speculative.” Younger v. Harris, 401 U.S. 37, 42 (1971). Thus, because the Larsens “do not claim that they have ever been threatened with prosecution [or civil enforcement], that a prosecution [or civil enforcement action] is likely, or even that a prosecution [or civil enforcement action] is remotely possible, ” id., in relation to their plan not to post videos of same-sex weddings online, “they do not allege a dispute susceptible to resolution by a federal court.” Babbitt, 442 U.S. at 299.[16]

         2. ...


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