Judge allows coercion of creative professionals

Emilee Carpenter’s website looks and reads like that of many wedding photographers: Photos of happy couples celebrate nuptials in natural settings. The “about” page says, “my ultimate goal in life is to glorify the one true Creator—God.” But a federal judge’s ruling last week jeopardizes Carpenter’s ability to photograph weddings in line with her commitment to Biblical marriage.

In his Dec. 13 opinion, U.S. District Judge Frank P. Geraci Jr. refused to block a New York nondiscrimination law that would require Carpenter to create photographs and blogs celebrating same-sex weddings. It carries stiff penalties: The young photographer could face fines of up to $100,000, a revoked business license, and up to a year in jail.

Like other creative professionals in recent years, Carpenter filed a pre-enforcement challenge in April on both free speech and free exercise of religion grounds. But Judge Geraci concluded that if Carpenter denied her unique services, it would “‘relegate [same-sex couples] to an inferior market’ than that enjoyed by the public at large.”

That logic—that Carpenter is a “monopoly of one”—gives the government a blank check to regulate any business owner’s speech, said Alliance Defending Freedom’s Jonathan Scruggs, who represented Carpenter: “So we think that violates the First Amendment up, down, and sideways, and is an incredibly dangerous principle to enable the government to do things.”

Scruggs said Geraci’s reasoning tracked with the 10th U.S. Circuit Court of Appeals in 303 Creative v. Elenis, where web designer Lorie Smith unsuccessfully argued a Colorado law compelling her to design wedding websites for same-sex couples violated her constitutional rights. ADF has asked the Supreme Court to review the case, and Scruggs said a decision on whether it will accept could come early next year.

Smith’s case is particularly important after the justices in June declined to review a state appeals court ruling against Washington state florist Barronelle Stutzman, who declined to design arrangements for same-sex weddings. The 77-year-old grandmother later bowed out of her decadelong fight to operate her business in line with her religious beliefs, agreeing to sell her shop and retire in order to avoid millions of dollars in attorneys’ fees.

Court treatment of other creatives has been a mixed bag. In 2019, ADF successfully defended Arizona Brush & Nib wedding invitation designers Joanna Duka and Breanna Koski and Minnesota Telescope Media videographers Carl and Angel Larsen. But several other cases remain unresolved. Colorado Masterpiece Cakeshop baker Jack Phillips last month filed an opening brief in his appeal of a ruling earlier this year slamming him for refusing to design a cake celebrating a gender transition.

Carpenter’s case is not about whether she serves people who identify as LGBTQ but whether she must convey a message that violates her deepest religious convictions. Nor is it about whether same-sex couples have access to wedding photographers, since many will work with them.

“So this really is about singling out one single photographer because she holds a religious view that the state disagrees with, and trying to punish her,” Scruggs said. “It’s ironic, because courts have protected the First Amendment rights of enormous internet companies that are much more like monopolies than a single photographer in New York.”

Scruggs said ADF will appeal.