Wedding photographer has potential free speech claim in rejecting same-sex weddings

This case pits New York's prohibition against sexual orientation discrimination with the Supreme Court's recent cases holding that religious businesses may discriminate against gay and lesbian clients on account of their religious beliefs. 

The case is Emilee Carpenter, LLC v. James, issued on July 12. The plaintiff is a wedding photographer who does not want to service same-sex weddings. She brought this lawsuit seeking a court declaration that New York's anti-discrimination statute (in the context of public accommodations, such as wedding photography) cannot override the constitutional protection against forcing people to violate their religious beliefs. In this case, plaintiff's religious beliefs are opposed to same-sex weddings. She also asserts that forcing her to service same-sex weddings would could constitute coerced speech in violation of the First Amendment.

This case was argued in September 2022. In the interim, the Supreme Court issued 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), which held that Colorado's public accommodations law violated the First Amendment because it compelled speech in a similar case: a graphic designer did not want to service same-sex weddings in her website business, which qualified as "pure speech." Plaintiff in this case says 303 Creative helps her cause, as the wedding photography business is expressive activity. The Court of Appeals (Carney, Bianco and Nathan) agrees, and reverses the Rule 12(b)(6) dismissal, holding that plaintiff has plausibly asserted a First Amendment claim, notwithstanding the New York statute that prohibits discrimination on the basis of sexual orientation.

But plaintiff is not entitled to a preliminary injunction this early in the case, enjoining enforcement of the New York statute as to her wedding photography business. In the 303 Creative case, the Supreme Court expressly declined to hold whether such photographers engage in expressive conduct such that the First Amendment allows them to bypass the anti-discrimination statutes. We are going to need a factual record to determine if this is really a free speech case, or whether this is a mere business case for which the First Amendment provides no protection.

Nor is plaintiff able to win under the Free Exercise Clause, which protects religious liberty. Under the Supreme Court's free exercise cases, a facially-neutral statute cannot violate the Constitution if it applies to everyone (or is "generally-applicable," the clunky phrase the Court uses in these cases). The New York law is generally-applicable and does not single out religious practices for punishment. Under the rational-basis standard of review, the New York statute is constitutional as applied to plaintiff because New York has an interest in combating discrimination.