Angel and Carl Larsen are a St. Cloud couple with eight kids, deep Christian faith and a conviction that the First Amendment protects their videography business from having to film same-sex weddings.

Attorney General Lori Swanson is the state’s top lawyer who, alongside the state human rights commissioner, defended Minnesota against the Larsens’ lawsuit this year and won a sweeping ruling, which said the Constitution does not shield businesses from obeying state human rights law.

Both sides will be watching Tuesday, when the U.S. Supreme Court hears arguments in a parallel case brought by a baker against the state of Colorado. Swanson signed a friend-of-the-court brief siding with Colorado and citing the ruling Minnesota won from U.S. District Judge John Tunheim. The Larsens hope that a favorable decision from the nation’s highest court might help them win an appeal of their case.

Both agree that Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission could have broad national implications as religious conservatives, backed by a well-funded legal foundation, invoke the First Amendment to attack state laws that bar discrimination in the marketplace.

“I believe all of us want to be part of a big story — the story,” Carl Larsen says in a web video produced by the Alliance Defending Freedom (ADF), a national legal advocacy group representing both the Larsens and Masterpiece Cakeshop owner Jack Phillips.

The two cases are so similar that attorneys for Minnesota have asked the Eighth Circuit Court of Appeals to halt proceedings on the Larsens’ appeal until the Supreme Court decides the Colorado case, which could come next spring.

‘Creative expression’?

ADF attorneys have described Phillips, the Colorado baker, as a “cake artist” who was protected by the First Amendment when he refused to design a wedding cake for Charlie Craig and David Mullins in 2012. The state’s civil rights commission ruled that he engaged in discrimination based on sexual orientation.

Unlike Phillips, the Larsens filed a “pre-enforcement” suit against Minnesota before they had wedding customers to turn away, in an effort to avoid penalties under the Minnesota Human Rights Act.

But in both cases, ADF attorneys emphasize the “creative expression” of their clients. And despite criticism that it is waging a campaign to erode civil rights, ADF attorneys say they simply want to ensure all Americans are protected from government overreach.

“What you need to think about is a government you disagree with, which has the power to say either you create expression you don’t agree with or we’ll punish you,” said Jordan Lorence, one of several ADF attorneys representing both the Larsens and Phillips. “That’s what at stake.”

The Larsens, who did not respond to requests for comment for this story, appealed Tunheim’s ruling on Oct. 20. In a commentary published on FoxNews.com that same day, Angel Larsen said their case was designed to preserve freedom of religious beliefs.

“If the First Amendment only protects speech that is popular in its cultural day,” she wrote, “then it really doesn’t protect any speech.”

But in a 63-page opinion in September, Tunheim wrote that Minnesota’s law “does not target speech or expression at all,” but only forbids denying service based on sexual orientation.

“Contrary to the Larsens’ assertions, [the law] does not amount to a state effort to stamp out expression opposing same-sex marriage or to privilege only pro-same-sex marriage views,” Tunheim wrote. Tunheim added that the couple could easily publicize their views of same-sex marriage with a statement on their website, which would be permissible under state law.

The subtleties of the issue and the stakes involved have generated a lively debate in Minnesota legal circles.

Joshua Newville, a Minneapolis attorney who debated Lorence at a Twin Cities event last month, views the Larsens’ videography work as a form of expression, but stops short of siding with Phillips. He also said the conservative Eighth Circuit could draw a similar distinction and side with the couple regardless of the outcome at the Supreme Court.

Still, Newville said, the ADF may be “overplaying its hand” with its strategy of filing free-speech claims against state anti-discrimination laws.

“And as a result, it will help us quickly establish where the line is between First Amendment protections and flat-out discrimination,” he said.

Teresa Collett, a University of St. Thomas law professor, said the Supreme Court left open the door for a “tense, ongoing conflict” surrounding same-sex marriage rights after a 2015 ruling granting recognition to such unions.

“It’s one thing to say the law requires the government to recognize these unions as marriages. It’s quite another to say ‘I’m going to make you recognize it or drive you out of the marketplace,’ ” said Collett, who joined 33 legal scholars in a brief supporting Phillips earlier this year.

Possible precedent

Minnesota is among 21 states and the District of Columbia that prohibit discrimination in public accommodations based on sexual orientation. In October, Swanson joined a group of attorneys general in a brief to the Supreme Court that cited rulings like Tunheim’s and argued that judges are rejecting claims that businesses can cite religious beliefs to turn away customers.

Such theories, offered in both the Larsens’ Telescope Media and Masterpiece Cakeshop cases, threaten “to transform the First Amendment into a vast source of exemptions to anti-discrimination laws,” the states wrote.

Minnesota, meanwhile, is asking the Eighth Circuit to stay the Larsens’ appeal until after the Supreme Court decides the Masterpiece case. Assistant Solicitor General Alethea Huyser pointed to five examples of identical legal arguments being raised in both cases — including the claim that both wedding videography and cake designing are “artistic expression” under attack by state laws.

Any Supreme Court ruling, she wrote, “is very likely to address many of the legal questions raised by this case.”

But Jeremy Tedesco, chief legal counsel for the ADF, said any delay would cause the Larsens to “suffer additional months of inevitable harm.”

In a video produced by the ADF, the couple say they welcome visitors from all backgrounds into their St. Cloud home. A camera pans over a living room scene that finds the couple and eight children — two of whom were adopted from Ethiopia — reading a book. As the featurette nears its end, Angel Larsen tells the camera she believes Telescope Media was created “for such a time as this.”

“I never anticipated it to come to this point,” she said. “But … I want to help my children preserve their religious freedom, and if I don’t do something now I’ll look back and totally regret it.”

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(c)2017 the Star Tribune (Minneapolis)

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