Wedding photographer faces threat of prosecution

Photographer Emilee Carpenter describes herself as a natural people person who loves crafting visual stories, particularly celebrating marriage. She is a Christian and believes she should be able to choose what stories to tell, but a New York law requiring her to promote same-sex weddings threatens to upend her business.

She filed a complaint last week in federal court challenging state laws that force her to take pictures and create posts celebrating same-sex weddings the same as for marriages between one man and one woman. The lawsuit also challenges a provision of the public accommodation law that bars posting an explanation on her website of her religious views on marriage.

Carpenter’s lawsuit joins a growing number of similar challenges by creative professionals to local or state public accommodation laws that bar discrimination on the basis of sexual orientation or gender identity (SOGI laws). They’ve met mixed success.

In October 2019, the Arizona Supreme Court ruled Phoenix could not force Brush & Nib artists Joanna Duka and Breanna Koski to design and create custom wedding invitations that conflict with their Christian beliefs. The city chose not to appeal. Later that year, the 8th U.S. Circuit Court of Appeals temporarily barred enforcement of a Minnesota law requiring Telescope Media’s Carl and Angel Larsen to make and produce videos of same-sex weddings while the couple sought a long-term decision.

In August 2020, Kentucky photographer and blogger Chelsey Nelson won the right to continue photographing only weddings between one man and one woman while her case continues. Notably, the Biden administration’s Department of Justice has not withdrawn a brief in support of Nelson from the Trump administration—at least not yet.

Others haven’t fared so well. Colorado web designer Lorie Smith is appealing after a federal court in 2017 dismissed her challenge to the state’s SOGI law. It’s the same law that triggered a Supreme Court decision in favor of Masterpiece Cakeshop artist Jack Phillips. And it’s not over for Phillips: He’s awaiting a state court judge’s ruling after an attorney sued claiming Phillips illegally refused to design a cake celebrating a gender transition.

Just last month, a federal court in Virginia dismissed photographer Bob Updegrove’s challenge to that state’s SOGI statute. Updegrove claimed the so-called Virginia Values Act required him to take pictures at same-sex weddings and prohibited him from explaining his views of marriage on his website. His attorneys are considering an appeal. And Sweetcakes bakers Melissa and Aaron Klein await a ruling from the Oregon appeals court after the Supreme Court sent their case back for review in light of its ruling in Masterpiece Cakeshop. Oregon put them out of business after they declined to bake a cake for a same-sex wedding.

But Carpenter’s case is different because of the severity of the New York law and the aggressive way officials enforce it, said Alliance Defending Freedom counsel Jonathan Scruggs. “Emilee Carpenter is facing a $100,000 fine, loss of her business license, and a year in jail,” he said, adding that because Carpenter has already declined to respond to multiple requests to photograph same-sex weddings, she is under a direct threat from the state.

Like some other legal commentators, Scruggs believes the Supreme Court needs to provide guidance regarding creative professionals’ free speech and religious liberty protections against nondiscrimination laws.

That may come in Fulton v. City of Philadelphia: The justices are considering whether the city violated the constitution by excluding Catholic Social Services from its foster care program because it refused to place children with same-sex couples. Arlene’s Flowers’ florist Barronelle Stutzman’s challenge to a Washington state law could also give the court a chance to weigh in.

“The state shouldn’t be able to silence or punish me for living out my convictions,” Carpenter said. “Photographers and other artists should be able to choose the stories they tell.”