This Photographer Is Taking Pre-Enforcement Action Against NYS to Continue Operating According to Her Faith

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Posted: Apr 19, 2021 10:45 AM

You've surely heard of Christian bakers, florists, and photographers being taken to court because they refuse to violate their faith while having a business. I recently reported on Jack Phillips, a Christian baker who is in court, again, because he doesn't wish to bake a cake transgender transitions. Alliance Defending Freedom, who is representing Phillips, is also representing Emilee Carpenter, a photographer in New York. What's particularly of interest is that Carpenter's case is a pre-enforcement one; she's suing New York State Attorney General Letitia James, rather than wait for James to take action against her.

Townhall spoke to Jonathan Scruggs, senior counsel for Alliance Defending Freedom, about the case, specifically the intrigue of this being a pre-enforcement case.

“Since just last year, Emilee has received at least seven requests to create content celebrating same-sex weddings. She shouldn’t have to wait for the government to punish her with fines up to $100,000, take away her business, or even throw her in jail simply for disagreeing with her beliefs. New York’s law is so egregious, it even allows government officials to send in ‘testers’ posing as customers to see if Emilee is violating the law. That’s why she is proactively challenging this law," Scruggs told Townhall.

Carpenter's attorneys filed Emilee Carpenter Photography v. James earlier this month, in the U.S. District Court for the Western District of New York. The human rights laws the suit is challenging, which Scruggs is referencing, are described by ADF as those "that force Emilee Carpenter to create photographs and blogs celebrating same-sex weddings if she does so for weddings between one man and one woman. Penalties for violating the law include fines of up to $100,000, a revoked business license, and up to a year in jail."

ADF also explains that "One of the challenged laws also forbids Emilee and her business, Emilee Carpenter, LLC, from publicly explaining on her studio’s own website or social media her religious reasons for only celebrating wedding ceremonies between one man and one woman. New York forbids such communications because they could make potential customers feel 'unwelcome, objectionable or not accepted, desired, or solicited.'"

The lawsuit provides a glimpse into how restrictive New York laws are for those who want to be able to carry out their business while living according to their faith. For example, Carpenter cannot even ask clients about whether she will be asked to provide services for same-sex couples, exclusively offer her services to engagements and weddings between one woman and one man, have a written or unwritten policy on her blog about her services, deny services to same-sex couples if she offers them to opposite-sex couples, display photographs and blog posts between only weddings between only one woman and one man, while displaying opposite-sex couples. She cannot be considered to be "providing any unequal treatment."

To stay in business, Carpenter would have to risk breaking the law or violating her faith, which she cannot do, and should never be asked to do. 

"The state shouldn’t be able to silence or punish me for living out my convictions," said Carpenter. "I serve clients from all backgrounds, but the government is attempting to tell me what to do, what to say, and what to create based on its beliefs, not mine. Free speech protects everyone. Photographers and other artists should be able to choose the stories they tell."

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The suit alleges that there are concerns for Carpenter's constitutional rights, including: her First Amendment Right to Freedom of Speech, Association, and Press; her First Amendment Right to Free Exercise of Religion; the First Amendment's Establishment Clause; and her Fourteenth Amendment Right of Due Process.

It's worth noting that ADF sees a particular path for this case. "In 2019, the U.S. Court of Appeals for the 8th Circuit and the Arizona Supreme Court ruled in favor of filmmakers and artists, respectively, who brought similar challenges against laws like New York’s. ADF attorneys are also asking the court to halt New York from enforcing its laws against Carpenter and her business while her lawsuit proceeds," the ADF web page says. 

"Emilee serves all people; she just cannot promote messages which contradict her religious beliefs about any topic, including marriage. The government cannot coerce artists to create messages against their will and intimidate them into silence just because it disagrees with their beliefs. This case was filed in a federal court, and it does have the potential to reach the U.S. Supreme Court. A favorable ruling would help to clarify that free speech protects everyone, including artists like Emilee," Scruggs also told Townhall about where the case could go from here.