We wrote in August about an Eighth Circuit U.S. Court of Appeals decision, noting how it underscored in various ways the importance of policy-oriented philanthropy being attentive to particular opportunities and the usually many challenges in trying to pursue them.
In the case, the philanthropically supported Alliance Defending Freedom (ADF) represented the Telescope Media Group, which was founded and is owned by Carl and Angel Larsen. The Larsens produce short documentaries and wedding videos. The Christian filmmakers believe marriage is between a man and a woman. The State of Minnesota disagreed and thought—and argued in court, citing its antidiscrimination law—that it could prevent the Larsens from declining to make videos for same-sex marriages on the basis of their religious beliefs.
The Larsens’ situation, of course, was similar to the nationally more-familiar one of Jack Phillips, whose Masterpiece Cakeshop could not be forced by Colorado to bake wedding cakes for same-sex marriages, the U.S. Supreme Court held last year. Phillips’ case did not hinge on his First Amendment claim however, but rather on the unfairness of Colorado’s process.
The Eighth Circuit panel in the Larsens’ case rejected Minnesota’s position, explicitly on First Amendment grounds. “Because the First Amendment allows the Larsens to choose when to speak and what to say,” according to Judge David Stras’ opinion in Telescope Media Group, “we reverse the [federal district court’s] dismissal of two of their claims and remand with instructions to consider whether they are entitled to a preliminary injunction” against the antidiscrimination law from the lower court.
“Eventually,” according to ADF vice president Jeremy Tedesco in a Wall Street Journal op-ed, “a case like Telescope Media Group will give the justices a chance to resolve the free-speech question they left open and protect the rights of all creative professionals.”
Minnesota Attorney General Keith Ellison and Minnesota Department of Human Rights Commissioner Rebecca Lucero apparently must think so, too—though maybe not right away.
Almost an admission about an appeal
“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,” Ellison and Rebecca Lucero wrote in a Minneapolis Star Tribune op-ed early this month.
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.
A skeptic might think Ellison and Lucero are merely just biding their legal time until a hypothetically new President more sympathetic with their position has an opportunity to alter the makeup of the U.S. Supreme Court’s lineup. They almost admit as much.
Patience was one of five characteristics of successful policy-oriented philanthropy that we observed about the case in August. Given the announced Ellison-Lucero plans, patience either needs to be noted again—or maybe augmented with another, necessary note, about consolidation.
In the public-policy “process” overall, there is almost always a “need to patiently consolidate major legal victories,” as my Giving Review co-editor Mike Hartmann has written in another context—“both for those organizations and individuals who fought for them (either in court or in the court of public opinion) and those who fund those groups and people.”
In the legal arena in particular, “victories require consolidation; wins have more staying power when the rationale behind the decision is reinforced in other legal, administrative, legislative, outright political, or even plain old policy-implementation contexts (or combinations thereof),” he writes. “For those who like a particular ruling or precedent, it needs to be preserved, protected, respected, and implemented, and usually, at least some want it expanded; this all requires further follow-up activity in one or more of those contexts (read: further funding).”
Ellison and Lucero have put the Larsens’ rights in this category. It should be noted.