Recently owners of the Telescope Media Group did an op-ed in the Star Tribune telling their story as a Christian-based business wanting to tell stories about traditional marriages between one man and one woman. They claim that the Human Rights Department is forcing them to also promote same-sex marriages, drawing an analogy to a government which would have told Alfred Hitchcock to make musicals and not suspense stories. This analogy is inapt. But to understand why, one needs to be clear about the structure of the First Amendment and civil rights law.
First remember that the First Amendment originally applied and only limited the federal government but over time it too now limits state and local governments. What does this mean? The First Amendment is a limit on the government–the government may not abridge or limit freedom of speech or religion. Private individuals and businesses are free to do what they want. If you choose in your private life–as too many people do–to only associate with those who think the same way as you or who hold the same beliefs as you–that is your right. No government in the US can tell you who you can invite to your house or tell what books to read or websites to visit. Conversely, private businesses can do what they want. The First Amendment does not apply to Facebook, a private business. It can censor whatever it wants and it is free to do so because it is a private business and the government cannot tell it what content to carry. In addition, your private employer can fire you because it does not endorse or support your political views. Private schools and colleges can impose speech codes. Overall, we are free to think or believe what we want, including in our artistic expression, and private entities have a similar right.
Second, until the passage of the 1964 Civil Rights Act private businesses were allowed to discriminate in whom they employed or served. Yes the Fourteenth Amendment Equal Protection clause prohibited discrimination, but again it only applied to the government. The 1964 Civil Rights Act made it illegal for businesses engaged in interstate commerce (the term actually used is “public accommodations” to discriminate in their employment and customer service policies. The Act was upheld as constitutional by the US Supreme Court and its constitutionality validity is not in doubt.
Yet the 1964 Civil Rights Act has three important exemptions for our purposes here. First, there is an artistic exemption. By that, the law says that if in filming a movie about racial discrimination it wanted to employ white only actors it could do so. This is among a category of exemptions known as a bonifide occupational requirement. Second, and closely related to BFOQs, religious organizations receive an exemption too on some matters. By that, the Catholic Church is allowed to stipulate that in the hiring of a priest he must be Roman Catholic and, for good or bad, he must be a he. You cannot sue the Church for gender discrimination for refusing to hire a female priest. Third, the original 1964 Act covers sex discrimination but not discrimination based on sexual preference or identity. To this day the Act still does not cover this type of discrimination, even though the Minnesota Human Rights Act does prohibit this type of discrimination.
The Supreme Court’s 2015 Obergefell v. Hodges decision legalizing same-sex marriage addressed one form of discrimination which involved government action but it did not address other issues of civil rights involving businesses. Absent state laws otherwise prohibiting it, federal law still does not make it illegal to discriminate against members of the LGBTQ community in areas of housing, employment, or customer service. Soon after Obergefell one saw a rash of “wedding cake” controversies, businesses claiming a religious exemption from having to bake wedding cakes for same-sex couples. It also encouraged states like North Carolina to pass bathroom laws targeted against transgender individuals. Telescope Media’s case is a variant of these cases, except adding to it an apparent artistic creativity or perhaps freedom of association claim. There are several flaws legally and even ethically with this claim.
Back in the 1980s the Minnesota Jaycees wanted to admit women to their organization in defiance of the national Jaycees which opposed it. The State of Minnesota sided with the Minnesota chapter, invoking the State Human Rights Amendment which banned se discrimination. The national Jaycees argued that forcing them to accept women would violate their right to freedom of association and expression. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court rejected that claim and upheld the Minnesota Human Rights Law. This case alone ought to settle the dispute here, but for Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000). In Dale a closely divided Supreme Court permitted the Scouts to ban gays from their organization by arguing that the Scouts had a protected expressive message against homosexuality that was core to the identity of their organization and that to then allow for a gay scout master would force it to endorse a message it did not support. The logic of Dale is what is also behind Hobby Lobby and its refusal to provide birth control coverage to women, and it is a similar logic behind Telescope Media’s arguments.
Some careful distinctions must be made. There is a difference between artistic expression and conducting a business that serves the public. Telescope Media is trying to hide its discrimination behind the former. If it wants to make bigoted anti-same sex marriage movies it may do so. No one can or should tell them they have to do that. But if they are operating a business they do not have a right to refuse to serve someone based on their gender preference or orientation. Allowing a private business to invoke religious or artistic expression as an exemption to anti-discrimination law is not about being politically correct, it is about promoting a fair and just society. It is creating a level playing field for all. Telescope Media’s arguments taken to their logical terminus allows them a free pass to discriminate against serving mixed racial or mixed religious couples (Perhaps in their view Jesus would have opposed a Catholic marrying a Jew).
Moreover, reliance on Dale is not good. First, Dale is a much disputed legal precedent that some equate to the same anti-gay animus found in the 1986 Bowers v Hardwick decision which declared consensual adult same-sex sexual activity as not protected under a right to privacy. That decision was repudiated and overtured in the 2003 Lawrence v. Texas. Additionally, Dale seemed to blur the line between religious (churches or temples) and non-church entities. Many already think that religious organizations are given too much freedom to discriminate in ways that violate the Establishment Clause. Allowing Telescope Media to prevail opens up a bad precedent in simply letting any business to invoke a religious claim as a way around anti-discrimination law. This is what the flaw in the Hobby Lobby decision was, and the viability of that precedent too is questionable.
The concern of course in a political and legal world defined by a Trump presidency Telescope Media might prevail. It could but should not. The current anti-discrimination law is well grounded and would not be easily dismantled or overturned. But the fact that this is even entertained is a product an era that the Trump presidency may be ushering in. One where equal protection under the law are viewed is as political correctness and not as w hat is demanded in a society that respects fairness, justice, and civility. People legitimately voted for Trump for many reasons that should be respected. But what one hopes is that it was not an endorsement for a return to bigoted behavior where people felt like they can say the must hurtful things they wanted to one another, or that businesses can hide their prejudice by invoking claims of artistic or religious expression.
