Herring files amicus brief in case of New York business suing to refuse to offer wedding photography services to LGBTQ+ couples

On July 2, 2021, Attorney General Mark R. Herring joined a coalition of 21 attorneys general in filing an amicus brief in support of the constitutionality of New York’s anti-discrimination law. In March, Attorney General Herring successfully defended the Virginia Values Act, the Commonwealth’s historic anti-discrimination law, in court against similar attacks.

Attorney General Herring and his colleagues filed the amicus brief with the United States District Court for the Western District of New York in the case of Emilee Carpenter, LLC v. James. The case was brought by a photography business refusing to offer its services to same-sex couples. Specifically, the plaintiffs, Emilee Carpenter and her business Emilee Carpenter, LLC, are seeking to post an online notice stating that their services are not for LGBTQ+ couples. Plaintiffs claim New York’s anti-discrimination law violates their First Amendment rights to freedom of speech and exercise of religion. This brief supports New York’s motion to dismiss the lawsuit and its opposition to the plaintiffs’ request for a preliminary injunction.

“Every single American should be able to live in their communities without fear of discrimination, regardless of whom they love, what they look like, where they’re from, or how they worship,” said Attorney General Herring. “I successfully defended a similar law in Virginia, and I am proud to stand with my colleagues in defending New York’s anti-discrimination law against these narrow-minded attacks. We are living in the 21st century, and our goal must always be to create an open and welcoming community for all.”

In the brief, Attorney General Herring and his colleagues argue that states across the country have enacted laws to prohibit discrimination against LGBTQ+ people in places of public accommodations to prevent severe economic, personal, and social harm. Discrimination by places of public accommodation “denies equal access to important goods and services and, by segregating the marker, has a well-established ‘substantial and harmful effect’ on the economy.”

According to the brief, a majority of Americans – 189 million – now live in communities that expressly prohibit places of public accommodation from discriminating on the basis of sexual orientation. Twenty-two states, including Virginia, and the District of Columbia have such laws. Attorney General Herring and his colleagues further argue that prejudice “on account of sexual orientation ‘has severely limited or actually prevented access to employment, housing and other necessities of life, leading to deprivation and suffering’ and fostered a general climate of hostility and distrust, leading in some instances to physical violence.” The brief points out the Supreme Court has long held that discrimination in public accommodations is a “unique evil.”

Attorney General Herring and his colleagues argue that the First Amendment does not allow a business to exclude customers in violation of anti-discrimination laws. It also does not protect the speech in advertisements that give notice that places of public accommodations will refuse service on the basis of a protected characteristic.

Finally, Attorney General Herring and his colleagues call on the Court to follow the Supreme Court’s instruction to ensure that LGBTQ+ individuals are not subjected to “indignities when they seek goods and services in an open market.”

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.