The eight circuit seems posed to rule on a case, Telescope Media Group v. Lindsey, in such a way as to essentially make antidiscrimination laws unconstitutional.
Alethea Huyser, Minnesota’s assistant solicitor general, tried to reframe the case as a straightforward application of settled principles. “Minnesota’s law regulates discrimination based on protected status,” she told the court. “It does not regulate message.” Moreover, it doesn’t target any particular kind of speech; in the parlance of Supreme Court doctrine, it’s “content-neutral.” The Human Rights Act isn’t designed to compel pro-gay speech or anti-Christian speech or any speech at all. It merely prohibits businesses from turning away certain customers on the basis of a protected trait.
Stras vigorously disagreed. “In my view, to the extent [the law] touches speech, it prohibits only discriminatory speech. That’s not content-neutral,” he told Huyser. This theory is astonishing. The Supreme Court has long recognized that nondiscrimination laws do not generally implicate the First Amendment because they regulate conduct, not speech. And when the laws do regulate speech, they impose only an “incidental burden” on expression that does not trigger strict scrutiny. As the Supreme Court has explained, a law that bars an employer from hanging a sign that states “White Applicants Only” technically regulates speech. But its purpose is to regulate conduct, and so it should not be subject to stringent First Amendment review.
Not to Stras. If the court finds that videography is compelled speech, he asked Huyser, “doesn’t the state necessarily lose, because they have no interest in compelling somebody to speak?” This statement has stunning implications. A huge number of activities, from videography and photography to baking, card design, and virtually all wedding services, compel some form of speech. And civil rights measures always compel expression; managers, for instance, must train their employees not to discriminate, promoting the state’s message of equality in commerce. Under Stras’ theory, any law that directs businesses to serve customers equally—and do so in a manner that involves speech—would be unconstitutional. The entire legal framework that supports civil rights laws would come toppling down.
Noteworthy: this interpretation is not new, but rather came from Neil Gorsuch. So if this case goes to the supreme courts, we could, in theory, see a broad uprooting of antidiscrimination laws country-wide.
I’m again reminded of Planned Parenthood vs. Casey, where the standard for “compelled speech” was set notably higher, to the point where states can force doctors to lie about abortion, but that’s neither here nor there. The important thing here is that we may soon see the end of a great deal of antidiscrimination legislation for minorities. Not just on the basis of sexuality, but also on the basis of race. That seems like a fairly terrible outcome regardless of how well-founded it is in the constitution, and in this case, given past jurisprudence, it really isn’t. But given the hard partisan split, I would not be at all surprised to see this outcome, based on a 5-4 split, wreak havoc on LGBT and African-American communities.