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

Wednesday, in the case of Emilee Carpenter, LLV v. James, Alliance Defending Freedom has filed a notice of appeal with the Second Circuit Court of Appeals on behalf of Carpenter.

In April, 2021, Carpenter, an Elmira, NY photographer, sought a license to discriminate after being trolled by “Christian” legal group Alliance Defending Freedom. ADF is also deemed a hate group by the Southern Poverty Law Center.

On December 13, 2021 U.S. District Court Judge Frank Paul Geraci Jr. authored a scathing opinion denying Carpenter the privilege of violating New York State’s nondiscrimination laws.

It’s worth noting that no gay couple ever asked Carpenter to film their wedding. Furthermore, the economic calculus causes ADF to take on as many cases as they can possibly handle. For each case the group litigates, ADF will typically generate donations that far exceed their expenses.

Carpenter should sue Alliance Defending Freedom for getting her into this mess in the first place. Gay couples generally choose wedding photographers from recommendations. Carpenter had nothing to gain from this pointless litigation. Worst case is the tiny possibility that she might have to film a same-sex wedding. So what? She doesn’t approve?

It’s just business. Commerce. The exchange of goods or services for money. Doing so does not constitute approval. No one seeks or requires Carpenter’s approval. Meanwhile, Ms. Carpenter has likely ruined her reputation. The general public has a certain disdain for discriminatory businesses.

“ADF’s real clients are its donors. Donors reward ADF’s excessive abuse of process.”

I would expect the Second Circuit to deny an appeal. ADF will then further appeal to the Supreme Court. If the Court honors the ruling in Masterpiece Cakeshop v. Colorado CCRC (which Judge Geraci specifically mentioned in his ruling) then it will refuse to hear the case.

In Masterpiece, the Court ruled in favor of a religious baker. The rationale was that the Colorado Civil Rights Commission was not religiously neutral. Nevertheless, the Colorado nondiscrimination law remains in force.

The Court recently upheld Masterpiece in the case of another ADF client, Barronelle Stutzman/Arlene’s Flowers and Gifts. Stutzman, you will recall, chose not to sell her flowers to be displayed at a same-sex wedding. She lost at trial and appeal.

The Supreme Court sent the case back to the trial court to make a determination of whether or not enforcement of Washington’s nondiscrimination law was religiously neutral.

Once again, the trial court ruled against Stutzman. ADF appealed — again — and lost. ADF tried for a second dip before the Supreme Court. The Court chose not to hear the case. ADF tried to get the Court to reconsider. You know what they say about repeating the same behavior and expecting a different result.

First Amendment expert, Professor Eugene Volokh (UCLA Law), offers an intellectually honest and reasonable guideline. Volokh draws the artistic line at a proverbial wedding singer who should not be forced to perform if he or she has a religious objection to a wedding. I am not sure that I agree with him but I am not a neutral observer. Volokh is striving to be a fair referee.

“I would expect the Second Circuit to deny an appeal. ADF will then further appeal to the Supreme Court.”

While all this is going on, we the taxpayers are picking up the tab. Alliance Defending Freedom does not have paying clients who have to make decisions over potential legal fees. ADF’s real clients are its donors. Donors reward ADF’s excessive abuse of process.

The notice of appeal was the 70th document filed in this case over more than nine months. Every document, motion and hearing has a price tag.

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.