Emilee Carpenter
In New York, Emily Carpenter sought a license to discriminate against gay couples. | Image via her website

“Case dismissed! ADF made money, even without prevailing.”

No gay couple ever asked Emilee Carpenter to photograph their wedding. Now, no gay couple ever will ask Emilee Carpenter to photograph their wedding.

Alliance Defending Freedom, an anti-LGBTQ hate group, contacted Carpenter — along with hundreds of wedding vendors — suggesting that she might be the victim of religious discrimination. In April, Carpenter sued the State of New York seeking a religious exemption to the state’s nondiscrimination laws.

Carpenter wanted to be exempt from having to photograph the nuptials of gay couples.

From a business perspective, the suit was a profoundly stupid thing to pursue. ADF claims to be the champion of Christian businesses. Yet, they don’t seem to care very much about the consequences of litigating something that was not in the best interests of their client.

In this case, no gay couple had asked Carpenter for her services. Now — with the help of ADF — she has pissed off every LGBTQ person in her service area. Furthermore, she has alienated the family and supporters of LGBTQ persons. Moreover, she has offended people who simply oppose discrimination.

Businesses are supposed to work hard at attracting customers, Carpenter did just the opposite. What was she thinking? Furthermore, suppose a gay couple did seek her wedding services? What did Carpenter risk?

About the worst thing that could happen is that Carpenter would photograph a celebration that she disapproves of for which she would be compensated. Apparently, Emilee Carpenter feels obliged to display her disapproval by refusing service. She “needs” to send an insipid message of shame.

“ADF is likely to appeal this case to the Second Circuit. They will raise even more money off that enterprise.”

It is pointless because the continuum of approval and shame is designed to influence the behavior of others. In this case she would influence behavior. Just not in a way that would be desirable for any business.

The couple whom she should have served, along with their friends and family, would come to the realization that Emilee Carpenter is a mindless idiot. And a bigot. And self-destructive. And a superstitious fool.

United States District Court Judge Frank Paul Geraci Jr., for the Western District of New York, was a New York State judge for 20 years. Judge Geraci knows a thing or two about writing an opinion. In this case Geraci did not mince words:

Since the end of the Civil War, states and localities have enacted and expanded legislation to ensure that historically underserved, disfavored, or disadvantaged classes of persons have the same access to the American marketplace’s great bounty as that afforded to the public at large. Without such access, private discrimination in the marketplace could “perpetuate a caste system …"

ADF and Ms. Carpenter are infuriating. No business would seek an exemption (based upon “sincerely held religious beliefs™”) from a requirement to serve the wedding of a Jewish man to a Christian woman. Nor would anyone seek an exemption from an interracial marriage. LGBTQ people, however, are still fair game.

People might religiously disapprove of interfaith or interracial marriages. Emilee Carpenter might religiously disapprove of interfaith or interracial marriages. I doubt, however, that it would be easy to find a lawyer who was sufficiently bigoted or sufficiently stupid to champion an anti-Semitic or racist cause (although there are Klansmen who are lawyers).

“The economic logic demands that ADF pursue as many cases as the organization can handle.”

There is a very cynical calculus at work. Alliance Defending Freedom raises money off of every case they pursue. I suspect that they raise far more than their litigation expense. Indeed, for the year ended June 30, 2020, ADF had a surplus of more than $6 million. That was after paying about a dozen people over $200,000 and after paying its CEO, Michael Farris, nearly $500,000. It is a not-for-profit for personal profit.

ADF is likely to appeal this case to the Second Circuit. They will raise even more money off that enterprise. The entire system is corrupted by ADF’s pro bono legal representation:

  1. ADF raises money off of each stage of litigation.
  2. The money ADF raises exceeds its costs.
  3. Win or lose, ADF’s nominal client sustains a significant loss of potential revenues.
  4. ADF risks nothing.
  5. If ADF happens to win then they will collect legal fees from the defendant; in this case New York State.
  6. Taxpayers are on the hook for court costs.

The economic logic demands that ADF pursue as many cases as the organization can handle. The potential for prevailing in any case is economically irrelevant. But I digress.

Judge Geraci cites a case that we are all familiar with:

“[G]ay persons and gay couples” are a part of that public. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rts. Comm’n, 138 S. Ct. 1719, 1727 (2018). Therefore they, like all other members of the public in the marketplace, are entitled to be treated in a manner consistent with their inherent equality, “dignity[,] and worth.” Id. With all this in mind, the Court turns to the present dispute.

“[Clients] lose from the moment that Alliance Defending Freedom sends a demand letter.”

Equity, the rule of law and marketplace fairness prevailed. That is not, however, always the case. As I said, ADF has the economic incentive to pursue these matters. Sometimes they win. Their clients, however, invariably lose regardless of the legal outcome. Such was the case when the Arizona Supreme Court ruled in favor of Brush & Nib in a similar pre-enforcement action (linked above).

Proprietors Breanna Koski and Joanna Duka attempted to salvage things after the favorable ruling with a futile blog post.

Too late. The damage was done. They were defeated by their own arrogance. They were defeated by the belief that their approval (or disapproval) was important. These folks never learn that LGBTQ persons do not seek their approval and sure as hell do not require their approval.

In the process, however, LGBTQ persons are denigrated by the nature of these suits. “We don’t serve your kind here” is a painful affront to those who are denied service.

There are only two ways to stop this pointless — yet demeaning — litigation. Either ADF finds itself sanctioned for abuse of process or potential clients come to the realization that they will lose from the moment that Alliance Defending Freedom sends a demand letter.

Neither of those things is likely to happen.

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.