MANHATTAN (CN) — If a photographer's work amounts to expressive speech, what about the caterer's or the calligrapher's?
A panel of judges picked through the nuances of wedding planning Wednesday as they heard an appeal from a Christian wedding photographer chaffing at New York’s anti-discrimination laws.
Emilee Carpenter, who is based in western New York's Chemung County, wants an exemption, calling it unconstitutional to make her choose between a penalty of up to $100,000 or photographing same-sex weddings that go against her faith.
“In the wedding context, is there any vendor or service that wouldn’t meet your definition of artist or expressive speech,” asked U.S. Circuit Judge Alison Nathan, grilling Carpenter's lawyer about how exemptions to the state’s public accommodations law to protect the artistic judgment of expressive businesses applies to various wedding-related professionals.
“The caterer, for example,” replied Bryan Neihart, an attorney with Alliance Defending Freedom, a conservative Christian group based in Scottsdale, Arizona.
Nathan appeared incredulous.
“How about a caterer who blogs about how the food celebrates the particular wedding,” the Biden appointee pressed.
“No, your honor, because the service that the caterer is providing is food and that does not necessarily convey any message,” Neihart said. “The caterer is clearly out.”
U.S. Circuit Judge Joseph Bianco, a Trump appointee interjected: “How about a florist?”
“A florist is a closer case,” Neihart answered. “I think there could be circumstances where the florist creates a custom floral arrangement specifically designed to celebrate the marriage.”
“Why isn’t that true for catering, a custom message that conveys love and friendship and the like through food,” Judge Nathan interjected. “How about, like, a sign maker, or the invitation calligrapher?"
Neihart conceded that that sign makers would be covered by First Amendment protections if they were asked to write something on the sign to which they might object.
“Flipping the hypothetical in that situation, for example, New York shouldn’t be compelled to allow a gay sign-maker to create a sign that says ‘defend marriage,’ if it was going to be used for a church event, if you would make the same sign for an LGBT event,” Neihart said. “The First Amendment applies both ways in this context to protect speech of all kinds.”
Bianco and Nathan, the latter being only the second openly gay woman to serve as a federal circuit court judge, were joined on the panel by U.S. Circuit Judges Susan Carney, an Obama appointee.
M. Hyder Hussain from Chemung County Attorney's Office told the panel that that outcome of the case will have a chilling effect on the local community, which does not boast an abundance of wedding photographers for residents to pick and choose from.
Assistant Solicitor General Alexandria Twinem advanced a similar point in the state's appeals brief.
“New York’s public accommodations laws do not violate the First Amendment, and they play a critical role in ensuring that gay and lesbian individuals, like members of other historically disfavored groups, have equal access to the economic, social, and political life of the nation and are protected from the dignitary harm of being excluded from businesses that are purportedly open to the public,” she wrote.
The three-judge panel reserved decision on Carpenter’s appeal at the conclusion of oral arguments Wednesday morning.
On her wedding photography website, Carpenter says she believes “marriage is a picture of the gospel and demonstrates the redemptive love of Jesus Christ, who willingly gave Himself up for us by going to the cross, paying the debt for our sins, and paving a way for us to be united with Him.” She claims New York's public accommodation laws prohibit her from explaining her faith-based studio policies online, and bar her from asking prospective clients whether they seek services that violate her Christian faith.
U.S. District Judge Frank P. Geraci dismissed Carpenter’s claims in December, emphasizing that working at a gay wedding is not the same thing as participating in or celebrating the ceremony.
Carpenter's attorneys at the Alliance Defending Freedom have spearheaded a number of legal cases on gay and transgender issues, including the Masterpiece Cakeshop case that the Supreme Court decided in 2018 and the 303 Creative case, recently granted certiorari to be heard by the court's current conservative supermajority.
“Like countless other artists, Emilee just cannot promote ideas contrary to her values. Because of her religious beliefs, Emilee can’t create photographs or blog posts that devalue God’s creation, condone racism, or promote violence,” Alliance Defending Freedom attorney John J. Bursch wrote in an appeals filing. “She also cannot celebrate weddings with irreverent themes or those that contradict her belief that marriage is the lifelong union of one man and one woman.”
Carpenter's attorney Neihart told Nathan and the three-judge panel that she is “currently suffering irreparable harm by refraining from speaking on topics that she’d like to speak about.”
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