Keith Ellison, Rebecca Lucero: We will prove LGBTQ discrimination is not free speech

Minnesotans are decent people. We think everyone, no exceptions, should be able to live with the same dignity and respect we want for ourselves and our families. But that common decency is under attack in court.

Last month, the federal appeals court for the Eighth Circuit — in a divided 2-1 ruling with a strong dissent — ruled that, in at least one narrow, hypothetical case, a business in Minnesota that offers services to the general public can use the owners' personal beliefs to discriminate against same-sex couples.

We don't think that's right. Business owners' free speech and beliefs are already fully protected under the First Amendment. What they want is a license to discriminate against LGBTQ folks. But that's a can of worms that has unintended consequences for everyone, no matter who you are.

As Minnesota's chief legal officer and the commissioner charged with enforcing the Minnesota Human Rights Act, respectively, our task is to respect everyone's right to their personal beliefs, no matter how much we may disagree with them — and also to protect everyone's right to be free from discrimination in public.

The facts of the case are these. A video business in St. Cloud called Telescope Media says it wants to start making wedding videos. Unlike any wedding videographer we've ever heard of, this company claims it will exercise complete creative control over wedding videos, so that any couple getting married will be essentially merely actors in the videographers' short film. Telescope wants the right to explicitly exclude LGBTQ couples from this highly unusual service.

Refusing to provide that service would be against the law. The Minnesota Human Rights Act doesn't tell people what they can believe. No law can — that's fully protected for every American under the First Amendment to the U.S. Constitution. The law just says that if someone offers a service to the general public, they have to offer it to everyone.

With good reason. Imagine if a tax preparer refused to do your taxes because they disapprove of your marital status or think a woman shouldn't work outside the home. Imagine if a convenience-store clerk wouldn't let you pump gas because they don't believe in a religious symbol you're wearing or the color of your skin offends them. Imagine if your doctor or nurse denied you medical care — even in an emergency room — because of where you worship, what color your skin is, what gender you are or who you love, for example.

In some states, medical providers are already trying to do this, and the federal government is trying to make it easier for them. But the law in Minnesota is clear — it's illegal to do so.

People have the right to believe whatever they want to believe. What they don't have is the right to deny you the same service they're offering to everyone else. No Minnesotan should be afraid that might happen to them. The Human Rights Act protects all of us from that.

When Telescope sued in federal district court to be able to explicitly exclude LGBTQ folks from the wedding-video services they want to offer, the judge rightly dismissed the suit. He said that because Telescope offers services to the Minnesota public, it has to offer the same service to all Minnesotans. But when Telescope appealed, two out of three judges found that because of Telescope's highly unusual claim that the videographers would retain full creative control of customers' wedding video, it can hide behind "free speech" to discriminate against LGBTQ couples.

This ruling, while narrow for now, amounts to a license to discriminate against LGBTQ folks. As Judge Jane Kelly wrote in her strong dissent, "… what may start in the wedding business — 'we don't do interracial weddings,' 'we don't film Jewish ceremonies,' and so on — likely will not end there." It wasn't that many decades ago that segregated lunch counters were legal. Thankfully, we've moved beyond that ugly past. But letting this decision go unchallenged is the beginning of the path back to it.

We're not letting it go unchallenged.

We could appeal this decision to the U.S. Supreme Court, but the current makeup of that court means we're not likely to win, because the court would have to accept Telescope's fairy tale as true, since there are no other actual facts on record at this early stage of the case. A loss there would make this kind of discrimination against LGBTQ people the law everywhere in America. An appeal to the Supreme Court at this point in the case is exactly what Telescope and the extremist legal-advocacy group that represents it want.

Instead, the best path forward is to take the case back to federal district court. There, we'll be able to help the trial court establish a set of facts based in reality. Then, if it ends up on appeal again, including before the Supreme Court, the appellate courts will have to accept those facts as true, not Telescope's fanciful story.

In the meantime, we're going to keep honoring the First Amendment, which allows everyone to believe what they want, and keep enforcing the Human Rights Act, which allows every Minnesotan to receive the same services in public no matter who they are. Making sure everyone can live with the same dignity and respect we want for ourselves is just common decency. That's the side we're on.

Keith Ellison is attorney general of Minnesota. Rebecca Lucero is commissioner of the Minnesota Department of Human Rights.