Anti-Gay Wedding Photographer Loses in Court
Emilee Carpenter, Alliance Defending Freedom target NY public accommodations law
BY ARTHUR S. LEONARD
Alliance Defending Freedom
(ADF), a conservative
religious litigation
organization that
fi les lawsuits challenging LGBTQ
rights, lost the fi rst round in its
lawsuit challenging the application
of New York’s law banning sexual
orientation discrimination in public
accommodations on December
13 when US District Judge Frank
P. Geraci, Jr., granted the defendants’
motion to dismiss the lawsuit
for failure to state a valid legal
claim.
ADF fi led suit in federal district
court in Rochester on April 6, 2021,
on behalf of Emilee Carpenter, a
wedding photographer who does
not want to provide her services
for weddings of same-sex couples.
Carpenter has been in business
since 2012. She claims that several
same-sex couples tried to contact
her through her website, but she did
not respond to their inquiries due
to her religious and moral objections
to same-sex marriages. She
claims to have been deterred from
publicly advertising her refusal to
provide services for same-sex weddings
because the New York State
Human Rights Law expressly forbids
businesses from advertising
that they will deny their services to
customers because of their sexual
orientation. Carpenter’s lawsuit
challenges three provisions of the
Human Rights Law as well as the
state’s Civil Rights Law, which also
bans abridging the civil rights of
people because of their sexual orientation.
Carpenter sued New York Attorney
General Letitia James, Interim
Commissioner of the State Division
of Human Rights Jonathan
J. Smith, and Chemung County
District Attorney Weedon Wetmore,
seeking injunctions to block
them from prosecuting her. They
all moved to dismiss the case, arguing
that because Carpenter has
not been charged with any violations
of the law, she does not have
standing to sue them in federal
court. James and Smith alternatively
Emilee Carpenter and the Alliance Defending Freedom have lost the fi rst round in their challenge to
New York’s public accommodations law.
moved to dismiss the complaint
for failure to state a valid
legal claim.
Judge Geraci devoted a substantial
part of his opinion to explaining
why he concluded that Carpenter
had a right to bring this lawsuit
in federal court, based on the State
Division of Human Rights’ past
track record of having enforced
the law against a wedding venue
that turned away a lesbian couple.
Although Carpenter has not been
prosecuted, her practice of denying
wedding photography services to
same-sex couples clearly violates
the law, as does her intention to
advertise that practice, so even if
prosecution is not imminent, it is
more than hypothetical. That was
enough to give her standing to sue,
wrote the judge, in light of precedents
from the Supreme Court
and the Second Circuit Court of
Appeals.
However, Judge Geraci concluded,
none of Carpenter’s constitutional
claims were likely to
be successful. She is raising First
Amendment claims of freedom of
expression, freedom of association,
free exercise of religion (as
well as invoking the Establishment
Clause), and 14th Amendment
Due Process, arguing that certain
words in the Human Rights Law
are inadequately specifi c to meet
constitutional standards.
ALLIANCE DEFENDING FREEDOM
Perhaps the most signifi cant
part of the court’s analysis concerns
the free speech and association
claims. Carpenter objects that
requiring her to provide her services,
which include not only photography
but also display of wedding
pictures on her website, would
compel her to express approval of
same-sex marriages, a violation of
her conscience and right to refrain
from speech to which she objects.
Geraci agreed that these objections
raise First Amendment concerns
that warrant strict scrutiny
of the challenged law. However,
he found that the state’s policy of
ensuring that LGBTQ people have
equal access to goods and services
provided to the public by for-profi t
businesses qualifi ed as compelling
governmental interest.
Geraci invoked the US Supreme
Court’s Masterpiece Cakeshop
opinion in support of this conclusion.
“In Masterpiece,” he wrote,
“the Supreme Court unequivocally
recognized that society had historically
treated ‘gay persons and
gay couples . . . as social outcasts’
who were ‘inferior in dignity and
worth.’ In light of this history, the
court found it ‘unexceptional’ that
states were empowered to ‘protect
gay persons, just as it can protect
other classes of individuals, in
acquiring whatever products and
services they choose on the same
LEGAL
terms and conditions as are offered
to other members of the public.’ Indeed,”
he continued, “it would be
‘inconsistent with the history and
dynamics of civil rights law,’ which
‘ensure equal access to goods, services,
and public accommodations,’
to exempt from those laws all public
accommodations that object to
same-sex marriage.”
ADF was relying heavily on the
Supreme Court decisions that upheld
the First Amendment right
of the Boy Scouts of America to
dismiss James Dale, an out gay
assistant scoutmaster, as well as
the First Amendment right of the
Boston St. Patrick’s Day Parade
organizers to bar from participation
an organization of LGBT Irish
people who sought to march under
a banner identifying their organization.
Judge Geraci pointed out
that those cases were easily distinguishable,
since they involved
non-commercial groups that were
formed as expressive associations
to advance particular issues and
values, whereas Carpenter runs
a for-profi t commercial enterprise.
Neither of the Supreme Court decisions
appeared appropriate to determining
this case.
Although in Masterpiece Cakeshop
that Supreme Court did overturn
the ruling by the Colorado
Civil Rights Commission against
a baker who refused to design and
produce a wedding cake for a gay
couple, it was not due to disagreement
with the Colorado court’s
analysis of the constitutional issues,
but rather because of perceived
hostility by members of the
Commission because of the baker’s
religious beliefs. At least, this
was the reasoning articulated by
a majority of the court, although
many commentators have found it
unconvincing and saw it as an attempt
by a majority of the justices
to avoid confronting the claim that
the court’s governing precedent
denying religious exemptions from
compliance with neutral laws of
general applicability should be
overruled — a goal which has been
➤ PHOTOGRAPHER, continued on p.15
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