Emilee Carpenter
In New York, Emily Carpenter seeks a license to discriminate. Image via her website
ADF seems to have done a cut and paste from similar lawsuits.

Emilee Carpenter is a photographer in New York. Carpenter believes that she has a God-given right (if not an obligation) to discriminate against gay couples in defiance of state law. She is suing the state in federal court (the Western District of New York).

Alliance Defending Freedom, an anti-LGBTQ hate group, is representing Carpenter. Their long game is to get another case before the United States Supreme Court. Absent something completely unexpected they will surely lose at the district court. The cynics at ADF probably think that they have a decent shot if the composition of the Supreme Court remains mostly religious conservative (including Mitch McConnell’s parting gift).

According to Court records ADF is seeking a preliminary injunction prohibiting the State of New York from enforcing its nondiscrimination law. I highly doubt that that is going to happen. ADF will then appeal to the Second Circuit. I doubt that they will appeal to the Supreme Court and risk having the Court decline to hear the case.

According to the record:

New York’s Accommodations … and Discrimination … Clauses to compel Plaintiffs to offer or provide their wedding photography services (photographing, editing, and blogging) for same-sex weddings or engagements;

“Blogging?” Does anyone pay this witch to blog.

Plaintiffs, plural, because she is suing as both an individual and on behalf of her business.

[Preventing] Plaintiffs from adopting their desired Beliefs and Practices policy

Ms. Carpenter is entitled to believe anything she wants. She can worship peanut butter if she wants. ADF is conflating beliefs with conduct. A discriminatory policy is conduct.

Here is part of the cut-and-paste:

Plaintiff Emilee Carpenter is a professional photographer with a passion for telling stories through beautiful photographs. She is also a Christian who prides herself on being willing to serve clients of all backgrounds, including those in the LGBT community. Consistent with these same religious beliefs, Emilee cannot use her talents to create photographs or blog posts that convey messages she disagrees with, such as those promoting sexist or vulgar content. …

The above is the same tired argument. “I am happy to take money from LGBTQ people wanting photographs but I cannot photograph their marriages.”

A similar argument would be indisputably racist: “I serve Black people all the time but, due to my sincerely held religious beliefs I cannot condone and photograph the wedding of a Black man to a white woman.”

The anti-Semitic version: “I frequently serve Jewish people. However my religious beliefs prevent me from condoning or photographing the wedding of a Jewish man to a Christian woman.”

Were it not for bigots like Emilee Carpenter, nondiscrimination laws would be unnecessary. There is no religious duty which compels someone to discriminate on any basis. Religious zealotry compels carpenter not to wed another woman. There are durable precedents which prevent people from imposing their religious beliefs on others (Reynolds v. United States — 1879 and Employment Division v. Smith — 1990.

In the latter case Justice Scalia made it abundantly clear that there cannot be religious exceptions to otherwise valid laws. The federal Religious Freedom Restoration Act only applies to federal law.

The appeal to preventing Special Rights™ is nauseating:

New York requires Emilee to provide more than equal treatment regardless of status. New York demands special treatment for certain messages—requiring Emilee to photograph and write blogs celebrating and to participate in same-sex weddings.

It is nauseating because the person seeking special rights is Emilee Carter. Moreover, religion is a matter of choice. Sexual orientation is involuntary. (Religious conservatives promote toxic and futile conversion therapy to suggest that sexual orientation is a choice.)

Eugene Volokh has written about nondiscrimination laws. His assertion is that certain artists should be exempted. I think he uses a wedding singer as an example. I do not know if a photographer meets that standard. I don’t always agree with him but he is always intellectually honest. I mention Volokh only to point out that there is a rational argument siding with Carpenter.

I do not agree with that argument but at least it is sane. Even if she does meet that standard I have a serious problem with carving out a religious exemption to a nondiscrimination law. If we balance potential harm to Carpenter against “we don’t serve your kind here” the scale tips, in my opinion, towards the State of New York. It haarms someone’s dignity to be told that their money isn’t good at some establishment.

In this case I think that my resentment is due to the lawyering as much as Carpenter’s desired license to discriminate. It is dubious but Carpenter might have a legitimate argument given the fact that she would have to attend a ceremony that she disapproves of. Then again; so what? New York does not make an exception.

If she did go to the nuptial of a gay marriage how would she be harmed in any way whatsoever? She, and ADF, confuse service with approval. No one is soliciting Carpenter’s approval because no one requires, or even desires, her approval. If this is all about her need to vividly depict her disapproval then she has a serious personality disorder.

I might also be more inclined to side with Carpenter were she the defendant in an enforcement action. That doesn’t seem to be the case. Apparently, no gay couple has asked her to photograph their wedding and now no gay couple ever will. Honestly, were she charged with discrimination, I think I would want the state to impose the harshest penalty under law.

With Carpenter as a plaintiff, we are all paying for this foolishness regardless of the outcome. If she wins the case then New York State would be required to pay her legal fees to Alliance Defending Freedom. I am not in favor of anything that would fund a hate group.

Furthermore, the retired CEO in me is offended. As far as I am concerned customers select the businesses they will patronize in contrast to businesses selecting their customers based upon criteria irrelevant to the business.

Finally, Ms. Carpenter’s business is an LLC. If she is so devoted to doing the work of her deity then she should have incorporated as a nonprofit organization.

New York added sexual orientation as a protected class on January 28, 2002. I doubt that Emilee Carpenter has been in business that long. Odds are that she started her business knowing that she would be unable to discriminate against gay people. A same-sex wedding is not a reasonable exception.

Finally, most Christians — of all stripes — disagree with Emilee Carpenter.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.