Bench Memos

Law & the Courts

Federal Appeals Court Picks Up Where Masterpiece Cakeshop Left Off

(Inquam Photos/Octav Ganea via Reuters)

Just over a year ago, the Supreme Court gave cake designer Jack Phillips a welcome 7–2 free exercise win in Masterpiece Cakeshop. Colorado’s hostility towards Jack was so egregious, the court never reached the core free-speech issue presented: whether the government has the power to force creative professionals to create artistic expression that violates their deepest convictions.

On Friday, in a case I argued before the court, the Eighth Circuit resolved this question emphatically in favor of free speech.

The decision in Telescope Media Group v. Lucero involves two Minnesota filmmakers, Carl and Angel Larsen, whom I know well. The Larsens live their lives with a faith-inspired commitment to diversity, love of neighbor, and God-honoring storytelling.

The Larsens regularly welcome people into their home and lives who don’t share their culture, ethnicity, or deep religious convictions. They host strangers for coffee, invite people without plans to join them for the holidays, and often fill the open seats at their twelve-foot-long dinner table with people they met just yesterday. The Larsens ask every visitor to sign his name on the bottom of that table so they are never forgotten. It has well over 1,000 names. It’s the centerpiece of their home — a place where everyone is welcome for lively discussion and to experience real hospitality.

Their faith defines their work as well. The Larsens use film to help their clients tell their most important stories. And as Christians, they want every story they tell to magnify God like a telescope, hence the name of their business. They gladly create films for everyone, no matter who they are, what they believe, or where they’re from. But like most other filmmakers, the Larsens cannot create films that express every message.

The Larsens want to bring their filmmaking talents to the wedding industry and use their gifts to promote their religious beliefs about marriage. But they hit a major obstacle. According to Minnesota officials, if the Larsens create films that tell marriage stories that are consistent with their religious beliefs, they must also create films that celebrate different views of marriage, including same-sex marriage, under threat of steep fines and even 90 days in jail.

Put simply, Minnesota officials gave the Larsens a devastating choice: Create films that express messages in conflict with your core beliefs, or face imprisonment. This kind of raw government power has no place in a free society.

Thankfully, the Eighth Circuit agreed. Answering whether Minnesota may require the Larsens to produce films “even if the message would conflict with their own beliefs,” the court gave a resounding “no.” It ruled that the Larsens’ films are protected speech and that “the First Amendment allows the Larsens to choose when to speak and what to say.”

No matter what you think about marriage, the government has no business telling people what they must say. This fundamental rule protects everyone. As the Eighth Circuit observed, the same principle that protects the Larsens also ensures that government cannot “demand that an atheist musician perform at an evangelical church service” or “force a Democratic speechwriter to provide the same services to a Republican.”

The Eighth Circuit’s reaffirmation of foundational free-speech principles is welcome considering the times in which we live. Our politics are increasingly polarized, reasoned debate is being replaced with the demonization of ideological opponents, open discourse about important issues is disappearing, and significant efforts are underway to marginalize and silence those deemed to have disagreeable views.

The Supreme Court needs to decide the free-speech issue left open in Masterpiece Cakeshop because many creative professionals like theLarsens continue to face financial ruin and the prospect of being purged from their vocations solely because of their religious beliefs.

The Eighth Circuit’s decision sets the stage by creating a conflict with other decisions that have gone the wrong way. One of those cases, Arlene’s Flowers, will be headed back to the Supreme Court next month. Hands on Originals was just argued at the Kentucky supreme court. And Brush & Nib Studios will be decided any day by the Arizona supreme court. Each of these cases involves creative professionals who serve everyone but cannot promote messages or events through their art that violate their religious beliefs.

I’ve often thought that the right outcome in these cases is what the Larsens practice around their table: a diverse array of people gather there to build community, discuss their differences reasonably, treat each other with respect, and extend each other the freedom to live by their own consciences where they have differences of opinion.

The last thing we should do in this moment is give the government new power to squelch speech and mandate uniformity of thought on contentious social, moral, and political issues. The Eighth Circuit’s decision reminds us that this kind of government power is antithetical to the first principles that define our free society.

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