Faulty Assumptions:

  1. People have a religious duty to discriminate and;
  2. discriminatory conduct is protected by the constitutional guarantee of Free Exercise.

Alliance Defending Freedom is an anti-LGBTQ hate group — for good cause. With nominal plaintiffs, ADF has gone to federal court to nullify the nondiscrimination law of the Commonwealth of Virginia which became effective in July. 

The case is captioned Updegrove v. Herring. The full identity of the plaintiff is Robert Updegrove, and Loudoun MultiImages LLC d/b/a Bob Updegrove Photography. Herring is Virginia’s AG.

In a prior case1 Professor Eugene Volokh2 made some credible arguments regarding a wedding photographer. Photography is a form of art and the photographer’s attendance is required at the wedding. In contrast Volokh supported the position of the state in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The problem, however, goes beyond the photographer because the suit has the potential to invalidate the entire law. The judge assigned to this case is Claude M. Hilton, a Reagan appointee. 

Even if Hilton makes a narrow ruling it opens the door to other claims of Religious Freedom™. It would also send what I think is the wrong message to the public.

Another issue is that a win for the photographer is a win for ADF. The Commonwealth of Virginia would probably be required to pay ADF’s fees. That money would be used to further oppress LGBTQ people.

ADF would love to get another case before the Supreme Court, particularly if Amy Coney Barrett is confirmed. The problem with Barrett is not her religious beliefs. She can believe in the sanctity of chickpeas for all I care. She becomes problematic if she imposes her beliefs on others through her decisions which I believe she would do.

That augers poorly for LGBTQ people. I am objectively disordered and transgender people do not really exist. Roe v. Wade is probably a legal corpse which would mean that women of means can get abortions but poor women cannot.

I probably agree with Volokh but, on balance, think that the Commonwealth should prevail because of the consequences of a decision in favor of the photographer.

I would argue that no one has a religious duty to discriminate which is tempered by the fact that I am an agnostic Jew. Conservative Christians in these matters conflate service with approval. They seem to discriminate in order to robustly demonstrate their disapproval.

I’ve heard it all before

There is nothing novel in the complaint. ADF makes the invalid argument that service means “celebrating” the event. It is just a business transaction: Goods or services are exchanged for money. The vendor doesn’t have a stake in the event nor an emotional attachment.

I will write about this again when the Commonwealth of Virginia files a reply.


1 Elane Photography v. Willock. The Supreme Court declined to hear the case allowing a ruling adverse to Elane Photography to stand.

2 Volokh is always a credible source of opinion. He is equality-minded and intellectually honest balancing First Amendment rights with fairness.

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