Religious wedding photographer may object to same-sex weddings

A judge in the Western District of New York has held the religious freedom provision of the U.S. Constitution prevents the State of New York from requiring a wedding photographer to work same-sex weddings. This ruling applies a recent U.S. Supreme Court ruling that held the Constitution allows a website designer to object, on religious grounds, to working for a same-sex couple.

The case is Carpenter v. James, 2022 WL 1465550, issued on May 22. Plaintiff objects to same-sex weddings on religious grounds. As such, she will not work such weddings. That stance conflicted with New York's public accommodation laws, which protect gay couples from discrimination. Initially, plaintiff lost her case in the WDNY, but then the Supreme Court issued 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), holding for the first time that the religious freedom principles under the U.S. Constitution allowed a website designer to turn down business from a same-sex couple. That ruling revives Carpenter's case.

Judge Geraci opens his ruling in Carpenter's case with language suggesting that, absent the Supreme Court's ruling, plaintiff would not win this preliminary injunction:

On December 13, 2021, this Court held that the Constitution does not prevent New York State from ensuring that all consumers in the marketplace, without regard to sexual orientation, have “equal access to publicly available goods and services,” including custom goods and services. Emilee Carpenter, LLC v. James, 575 F. Supp. 3d 353, 373 (W.D.N.Y. 2021). This holding flowed from the basic principles on which our nation was founded: all people are “entitled to be treated in a manner consistent with their inherent equality, dignity, and worth.”  Id. at 361 (internal quotation marks and brackets omitted). As a result, the Court dismissed the complaint filed by Plaintiff Emilee Carpenter and the entity through which she operates her for-profit wedding-photography business, “Emilee Carpenter, LLC.”

That ruling is now obsolete, Judge Geraci holds, because the reasoning in 303 Creative applies to this case. While the judge notes "the fundamental,praiseworthy purpose of public accommodation laws like New York's," which "ensure that 'individuals in historically disadvantaged or disfavored classes desiring to make use of public accommodations' recieve 'what the old common law promised to any member of the public meal at the inn -- namely, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference," the Supreme Court has chipped away at that principle, though it has in the past deemed that interest compelling in the context of race and sex discrimination.

Any ruling against Carpenter would compel her to engage in expressive activity with which she disagrees. Compelled speech violates the Constitution, the court now writes. When it took up this case last year, the Court of Appeals held that plaintiff's photography constituted "presumptively expressive" activity, not just commercial activity. The record shows that Carpenter's subjective intention with her photography is to express herself. She operates her business consistent with "her own artistic and moral judgment" in realizing her "own creative vision"and "artistic and religious beliefs." She is not just a photographer but an artist. Artists have free speech rights, which means the government cannot force them to engage in expressive activity they disagree with.