United States District Court, D. Minnesota
TELESCOPE MEDIA GROUP, a Minnesota corporation, and CARL LARSEN and ANGEL LARSEN, founders and owners of Telescope Media Group, Plaintiffs,
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.
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
R. TUNHEIM Chief Judge United States District Court
Carl and Angel Larsen and Telescope Media Group
(“TMG”) 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.
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.
THE MINNESOTA HUMAN RIGHTS ACT (MHRA)
has outlawed invidious discrimination in public
accommodations since 1885. 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).
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 because of . . . sexual orientation . . .
.” § 363A.11, subd. 1(a)(1).
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
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. § 363A.30, subd.
LEGALIZATION OF SAME-SEX MARRIAGE
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,
[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
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,
same-sex-marriage/ (last visited Jan. 10, 2017))); see
also Id. ¶¶ 62-64 (citing similar publicly
available MDHR guidance).)
THE LARSENS' BUSINESS
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.
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.)
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.
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.)
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 and will post a
statement publicizing this position on their
website - 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.)
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.)
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.
LACK OF JURISDICTION
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.
Standard of Review
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).”).
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)).
Eleventh Amendment Immunity
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
(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).
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.
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.
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.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
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
‘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)).
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).
“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
Making Wedding Videos for Same-Sex Couples
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. (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).
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,
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
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.
Publicizing Videos of Same-Sex Weddings
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.
it is not clear that the Larsens have alleged an intention to
engage in a course of conduct 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. 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.
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. 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
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. 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”).) Additionally,
the Larsens have not alleged a history of enforcement or any
allegations showing MDHR agrees with their reading of the
Business Discrimination Provision.
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