EMILEE CARPENTER, LLC, DBA EMILEE CARPENTER PHOTOGRAPHY, EMILEE CARPENTER, Plaintiffs-Appellants, v. LETITIA JAMES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW YORK, MARIA L. IMPERIAL, IN HER OFFICIAL CAPACITY AS THE ACTING COMMISSIONER OF THE NEW YORK STATE DIVISION OF HUMAN RIGHTS, WEEDON WETMORE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF CHEMUNG COUNTY, Defendants-Appellees.
No. 22-75
United States Court of Appeals For the Second Circuit
August Term 2022
Argued: September 28, 2022
Decided: July 12, 2024
* The Clerk of Court is respectfully directed to amend the captions accordingly.
Before: CARNEY, BIANCO, and NATHAN, Circuit Judges.
Following the Supreme Court‘s decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), State and County Defendants concede and we agree that Carpenter has met her burden at the pleading stage to state a plausible free speech claim. However, we reject Carpenter‘s request to enter a preliminary injunction at this stage. We also affirm the district court‘s dismissal of Carpenter‘s other claims. Carpenter has failed to sufficiently plead that the public accommodations laws violate her right to free association, her right to free exercise of religion, or the Establishment Clause. She has also failed to state a plausible claim that the laws are unconstitutionally overbroad or vague. Accordingly, we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND for further proceedings.
BRYAN D. NEIHART (John J. Bursch, Jonathan A. Scruggs, Jacob P. Warner, on the brief), Alliance Defending Freedom, Washington, DC, for Plaintiffs-Appellants.
Raymond J. Dague, Dague & Martin, P.C., Syracuse, NY, for Plaintiffs-Appellants.
JEFFREY W. LANG (Barbara D. Underwood, Alexandria Twinem, on the brief) for Letitia James, Attorney General, State of New York, Albany, NY,
M. HYDER HUSSAIN, County of Chemung Department of Law, Elmira, NY, for Defendant-Appellee Weeden Wetmore.
NATHAN, Circuit Judge:
Like many states, New York has long had public accommodations laws to guarantee equal access to goods and services for members of protected classes. These laws are codified in New York‘s Human Rights Law and Civil Rights Law, which, among other things, make it an unlawful discriminatory practice for public establishments to refuse service to individuals because of protected characteristics including race, religion, sex, and sexual orientation. See
This case arose when Plaintiff Emilee Carpenter brought a preenforcement challenge against New York‘s public accommodations laws on grounds that they are unconstitutional under the First and Fourteenth Amendments as applied to her business. Specifically, the complaint alleges that New York‘s laws violate Carpenter‘s constitutional rights to free speech, free association, and free exercise of religion, violate the Establishment Clause, and are unconstitutionally overbroad or vague. Carpenter‘s complaint alleges that she is a wedding photographer who wishes to provide her services consistent with her beliefs about marriage. Because one of those beliefs is that marriage should be only between a man and a woman, she intends to refuse her photography services to same-sex couples. Concerned that this course of conduct would violate New York‘s public accommodations laws prohibiting discrimination on the basis of sexual orientation, she brought this preenforcement suit. The district court dismissed all of Carpenter‘s claims.
On appeal, Carpenter challenges each dismissal and seeks an order directing the district court to enter a preliminary injunction. We affirm the district court‘s dismissal of Carpenter‘s claims that New York‘s public accommodations laws (1) violate her First Amendment right to free association, (2) violate her First Amendment right to free exercise of religion, (3) violate the Establishment Clause, (4) are unconstitutionally vague, or (5) are overbroad.
As to the free speech claim, State and County Defendants concede that the case must be remanded in light of the Supreme Court‘s recent decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). We agree. However, in light of the Supreme Court‘s analysis in 303 Creative and relevant First Amendment law, we deny Carpenter‘s request to enter a preliminary injunction at this stage. Instead, we remand to allow the district court to consider the preliminary injunction request in the first instance. In assessing that request, the district court must evaluate a developed factual record—rather than merely the complaint‘s allegations—to determine whether the application of the law at issue actually compels Carpenter‘s expressive conduct, rather than nonexpressive conduct that imposes an incidental burden on speech. And the district court should assess whether Carpenter‘s blogging is a good or service regulated by New York‘s public accommodations laws.
BACKGROUND
I. Factual Allegations
The current posture of the case is review of the grant of a motion to dismiss, so the factual allegations are taken from Plaintiff‘s complaint and any incorporated documents, and they are assumed to be true at this stage. See Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012). Plaintiff Emilee Carpenter is a photographer from Chemung County, New York, who provides engagement and wedding photography services to the general public through her limited liability company Emilee Carpenter, LLC. As explained in more detail below, Carpenter alleges that the wedding photographs she creates for her customers are customized expressions of her own artistic vision. Carpenter runs a website as part of her business, on which she advertises her services and displays her work. She also publishes a blog on her website, which includes posts about the engagements and weddings she photographs. As the district court noted, it is unclear whether these blog posts are part of the photography service that Carpenter offers to the general public. See Emilee Carpenter, LLC v. James, 575 F. Supp. 3d 353, 372 n.10 (W.D.N.Y. 2021) (observing that Carpenter‘s complaint at times describes the blog as a form of her own marketing for her business). As we explain below, the precise nature and the status of Carpenter‘s blogging remain factual questions for the district court to evaluate in the first instance based on a more developed record. Carpenter‘s allegations regarding the blog do not alter our resolution of the appeal at this stage and so we need not examine them further here.
Carpenter‘s complaint alleges that she seeks to conduct her photography business consistent with her religious faith and her own beliefs about marriage. To that end, she requires all engagement and wedding clients to sign a service agreement giving her full artistic license and editorial discretion over their photographs. One of Carpenter‘s beliefs is that marriage should be only between a man and a woman. She alleges that she therefore will not provide her photography services for same-sex weddings or engagements, as she thinks doing so would express acceptance and celebration of same-sex marriage contrary to her beliefs. Carpenter claims she will provide other photography services to the individuals whose weddings she will not photograph—such as “branding photographs for a business owned and operated by LGBT individuals“—but she will not provide her wedding-photography service to same-sex couples. App‘x at 37.
According to the complaint, Carpenter currently silently screens prospective clients for same-sex couples, ignoring requests for engagement and wedding photography from couples who appear to be the same sex. Carpenter intends to continue refusing to photograph same-sex couples’ engagements and weddings. Further, she wishes to amend her company‘s operating agreement to include a “Beliefs and Practices” statement explaining this practice, to advertise on her website that she will not provide engagement or wedding photography to same-sex couples because of her religious and personal beliefs, and to ask prospective clients directly whether they are a same-sex couple so that she can decline their request if they are. See App‘x at 51.
Carpenter understands that running her business in this way would be contrary to
Today, New York‘s public accommodations laws are codified in the state‘s Human Rights Law and Civil Rights Law. Three provisions of the Human Rights Law are at issue in this case. First, the Accommodations Clause makes it an “unlawful discriminatory practice” for the provider of a “place of public accommodation, resort or amusement . . . to refuse, withhold from or deny to” an individual “any of the accommodations, advantages, facilities or privileges thereof” on the basis of a number of protected characteristics including race, religion, sex, and sexual orientation.
Separately, the Civil Rights Law provides that “[n]o person shall . . be subjected to any discrimination in his or her civil rights, or to any harassment . . . in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state” on the basis of protected grounds including (again) sexual orientation.
These laws can be enforced in a number of ways. Any person aggrieved by discrimination may file a complaint with New York‘s Division of Human Rights, as may certain state officials including the Attorney General.
II. Procedural History
Carpenter sued state and county officials in the Western District of New York in April 2021, alleging that New York‘s public accommodations laws violate her First Amendment rights to free speech, free association, and free exercise of religion; violate the Establishment Clause; and are unconstitutionally vague and overbroad. Carpenter sought injunctive and declaratory relief, and also moved for a preliminary injunction.
The County Defendant moved to dismiss Carpenter‘s complaint for lack of standing, while the State Defendants moved to dismiss for lack of standing and failure to state a claim. The district court denied the motions to dismiss for lack of standing, concluding that Carpenter faced a credible threat of having New York‘s laws enforced against her. See Carpenter, 575 F. Supp. 3d at 365-70. Defendants do not contest this holding on appeal. However, the court dismissed Carpenter‘s complaint for failure to state a claim and denied her request for a preliminary injunction as moot. See id. at 370-86. Carpenter timely filed the present appeal. After oral argument, we held consideration of this case in abeyance pending the Supreme Court‘s issuance of its decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). With that decision issued, we now resolve this appeal.
DISCUSSION
We review de novo a district court‘s dismissal for failure to state a claim, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff‘s favor. See Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016). In order to survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As an initial matter, before reaching the merits of Carpenter‘s claims, we agree with the district court—and Defendants, on appeal—that Carpenter has plausibly alleged an injury in fact for the purpose of standing. We note, however, that it will be her obligation to continue to demonstrate standing “with the manner and degree of evidence required at the successive stages of the litigation.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)); see also Gill v. Whitford, 585 U.S. 48, 69 (2018) (“The facts necessary to establish standing, however, must not only be alleged at the pleading stage, but also proved at trial.“). Our conclusion here is premised on assuming the truth of Carpenter‘s factual allegations as pled in her complaint. But this conclusion would have little bearing on the question of standing if a more developed factual record should cast doubt on whether Carpenter faces a credible threat of enforcement of New York‘s laws.
I. Free Speech Claim
Carpenter principally argues that New York‘s public accommodations laws violate her First Amendment right of free speech on the theory that the laws compel speech.
Since the district court‘s ruling, the Supreme Court issued its decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). Carpenter argues now, and State and County Defendants concede, that this claim must be remanded to the district court in light of the Supreme Court‘s decision. Carpenter further argues that 303 Creative warrants vacating the district court‘s denial of a preliminary injunction and directing entry of an injunction on remand. For the reasons that follow, we agree that Carpenter‘s free speech claim must be remanded to the district court, but we decline Carpenter‘s invitation to direct entry of a preliminary injunction. Instead, on remand, the district court should consider the application for preliminary injunctive relief on a developed factual record.
A. Dismissal for Failure to State a Claim
Following 303 Creative, we conclude (as the Defendants also concede) that Carpenter has pled sufficient facts to plausibly allege a free speech claim. 303 Creative concerned a graphic designer, Lorie Smith, who offered website design services through her business, 303 Creative LLC. Smith planned to create wedding websites but asserted faith- and free-speech-based objections to creating wedding websites for same-sex couples. Smith stated a fear that her refusal to offer her services for same-sex weddings would violate Colorado‘s Anti-Discrimination Act (CADA) which, much like New York‘s laws here, prohibits a public accommodation from denying “the full and equal enjoyment” of its goods and services to any customer based on a number of protected categories including sexual orientation. 303 Creative, 600 U.S. at 580-81. Smith brought a preenforcement First Amendment challenge alleging that she faced a credible threat that Colorado would enforce CADA to compel her to create websites celebrating marriages she does not endorse—namely, same-sex weddings. See id. at 580.
The Supreme Court held that, as applied to Smith‘s website design business, Colorado‘s public accommodations law violated the First Amendment because it impermissibly compelled speech. Id. at 588. The Court took three steps to reach that conclusion: First, the Court acknowledged the credible threat that Colorado would invoke CADA to compel Smith to create wedding websites that she did not wish to create. Id. at 583. Second, it determined that “the wedding websites Ms. Smith seeks to create qualify as ‘pure speech‘” under the First Amendment. Id. at 587. And third, the Court concluded that “the wedding websites Ms. Smith seeks to create involve her speech.” Id. at 588. Having drawn these three conclusions, the Court reasoned that CADA could not constitutionally be applied to Smith‘s wedding website business, because the First Amendment prohibits Colorado from compelling persons like Smith to engage in pure speech. See id. at 592 (stating that public accommodations laws cannot be “applied to expressive activity to compel speech” (internal quotation marks omitted)).
Relevant here, the Supreme Court declared that the parties did not contest the first premise in its chain of logic (the threat of compulsion). It then ruled that the other two premises—that the websites Smith would be compelled to create (1) qualify as “pure speech” that (2) involve her speech—followed directly from the parties’ factual stipulations. First, the Court said its conclusion as to “pure speech” followed from the following stipulations: “that Ms. Smith‘s websites promise to contain images, words, symbols, and other modes of expression,” “that every website will be her original, customized creation,” and “that Ms. Smith will create these websites to communicate ideas—namely, to celebrate and promote the couple‘s wedding and unique love story and to celebrate and promote what Ms. Smith understands to be a true marriage.” Id. at 587 (cleaned up).
The Court next accepted the premise that the wedding websites at issue involved Smith‘s speech. “Again,” the Court said, “the parties’ stipulations lead the way to that conclusion.” Id. at 588. This time, the Court referred to the parties’ stipulations that “Ms. Smith intends to vet each prospective project to determine whether it is one she is willing to endorse,” “consult with clients to discuss their unique stories as source material,” and in the end “produce a final story for each couple using her own words and her own original artwork,” which will be presented together with the name of her solely owned company. Id. (cleaned up); id. at 579.
As Carpenter and State and County Defendants agree, the Supreme Court‘s reliance on these factual stipulations is dispositive here. That is because the specific facts alleged in Carpenter‘s complaint are substantially similar to the relevant facts stipulated to by the parties in 303 Creative. Specifically, Carpenter has alleged that she exercises artistic license to create customized and original images that express her religious views about marriage. Carpenter has thus alleged substantially similar facts to suggest that her photography services plausibly qualify as expressive activity under the Court‘s holding, see App‘x at 26-32. In light of these factual allegations, Carpenter has plausibly stated a compelled speech claim because the Accommodations Clause of New York‘s Human Rights Law requires her to extend her photography services to same-sex weddings.1
We accordingly reverse the district court‘s grant of the motion to dismiss that claim.
B. Preliminary Injunction Request
Although we agree that Carpenter has plausibly stated a valid free speech claim, we reject Carpenter‘s argument that 303 Creative “proves that Emilee deserves injunctive relief for her free-speech claim now.” Appellant‘s Letter Br. at 1 (emphasis
“We review the denial of a motion for a preliminary injunction for abuse of discretion, which we will identify only if the decision rests on an error of law or a
clearly erroneous finding of fact, or cannot be located within the range of permissible decisions.” New Hope Fam. Servs., Inc. v. Poole, 966 F.3d 145, 180 (2d Cir. 2020). “The district court‘s denial of [Carpenter‘s] preliminary injunction motion as moot rests on an error of law, specifically, the court‘s dismissal of all [Carpenter‘s] claims.” Id. For the reasons stated in the preceding discussion, Carpenter‘s free speech claim should not have been dismissed and, thus, the preliminary injunction motion is not moot.
Carpenter urges this Court not only to vacate the denial of its preliminary injunction motion, but also to direct entry of the requested injunction on remand. We recognize our authority to do so, see id., but decline in the instant case because Carpenter‘s request for a preliminary injunction at this stage rests on a misreading of 303 Creative and further development of the factual record on remand is warranted before entry of a preliminary injunction.
The Supreme Court‘s decision in 303 Creative justifies remand for resolution of the preliminary injunction for two reasons. First, the Court in 303 Creative was clear that its holding was tied to the factual stipulations reached in that case. Andfor good reason. In cases like these, “details might make a difference.” Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm‘n, 584 U.S. 617, 624 (2018). To make the limited reach of its holding clear, the 303 Creative Court acknowledged that “[d]oubtless, determining what qualifies as expressive activity protected by the
Directly relevant to the facts of this case, the majority in 303 Creative rebuffed the dissent‘s suggestion that the Court‘s holding would allow a professional photographer who takes photos of newlyweds to “refuse to sell that service to a newlywed gay or lesbian couple, even if she believes the couple is not, in fact, just married because in her view their marriage is false.” Id. at 630 (Sotomayor, J., dissenting) (internal quotation marks omitted). The majority clarified: “Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers,stationers, and others, asking if they too provide expressive services covered by the
For that reason, the district court must be given the opportunity to consider a developed and specific factual record regarding Carpenter‘s business and determine whether, if applied here, New York‘s public accommodations laws will compel Carpenter‘s expressive activity as contemplated by 303 Creative.
Second, and relatedly, 303 Creative must be read in light of familiar
303 Creative reminds us first that the
Instead, the preliminary question in a case asserting unlawfully compelled speech is whether the law at issue regulates “nonexpressive conduct” of a commercial nature—perhaps with an “incidental burden[] on speech,” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011)—or whether the law as applied compels what the Court in 303 Creative called “pure speech” or “expressive activity,” 303 Creative, 600 U.S. at 599; see also Masterpiece Cakeshop, 584 U.S. at 631 (“[I]t is a general rule that such objections [to same-sex marriage] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.“).
In 303 Creative, the Court rejected Colorado‘s argument that the “case involves only the sale of an ordinary commercial product and any burden on Ms. Smith‘s speech is purely incidental.” 303 Creative, 600 U.S. at 593 (internal quotation marks omitted). Instead, as the majority explained, “the State hasstipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create customized and tailored speech for each couple.” Id. (internal quotation marks omitted). Here too, before entering or denying a preliminary injunction, the district court on remand should consider whether the factual record ultimately establishes, contrary to Carpenter‘s allegations, that her photography services involve only the sale of ordinary commercial services, i.e., nonexpressive conduct—or if it indeed supports her claim that the services constitute expressive conduct.
Along these lines, 303 Creative also reiterates the familiar
The question posed here, then, is whether Carpenter‘s photography services are expressive conduct, because, for example, her photographs provide conduits of public discourse or “communicate ideas.” Brown, 564 U.S. at 790; see also Wilson, 343 U.S. at 501 (describing protected mediums of expression as “organ[s] of publicopinion” that “may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression“). Even if photography is “presumptively expressive,” Mastrovincenzo v. City of New York, 435 F.3d 78, 93 (2d Cir. 2006), some photography services may be so devoid of expressive content as to fall outside the category of expressive conduct, cf. Telescope Media Grp. v. Lucero, 936 F.3d 740, 751 (8th Cir. 2019) (concluding that certain videos were protected speech where complaint alleged that videos were “not just . . . simply recordings, the product of planting a video camera at the end of the aisle and pressing record“). In the absence of such a stipulation, the district court must decide on remand which category Carpenter‘s photography falls into: expressive or not.
That is essentially the question the Supreme Court answered in 303 Creative when it determined that Smith‘s wedding websites were expressive or “pure speech.” The factual stipulations confirmed that Smith was not merely selling off-the-shelf commercial products. Instead, she was creating original, tailored, and expressive works that all parties agreed communicated Smith‘s particularpersonal views. As the Court put it, Smith‘s websites constituted “modes of expression” and were designed to communicate Smith‘s ideas about what constitutes a “true marriage.” 303 Creative, 600 U.S. at 587. Put otherwise, the parties had all but agreed that Smith was an artist and that her websites were her artistic mediums of expression. But here, whether Carpenter‘s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand in light of a developed evidentiary record.
Finally, the Court‘s requirement in 303 Creative that the websites involve Smith‘s speech also returns us to familiar
The Supreme Court spelled out this principle in Hurley. There, the Court considered whether an entity who is organizing or compiling expressive content created by one or more third parties is engaged in its own expressive activity that is also protected by the
Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine, as articulated in Hurley and303 Creative, whether the law compels Carpenter‘s own speech. In making this determination, a court might consider whether the public accommodations law compels Carpenter to “‘alter the expressive content‘” of her photographs, id. at 585 (quoting Hurley, 515 U.S. at 572–73), or “affect their message,” id. at 589 (quoting Hurley, 515 U.S. at 572) (alterations adopted), whether it “‘interfere[s] with [her] choice not to propound a point of view contrary to [her] beliefs,‘” id. at 586 (emphasis added) (quoting Boy Scouts of America v. Dale, 530 U.S. 640, 654 (2000)), and whether it “forc[es] . . . [her] to include other ideas within [her] own speech that [she] would prefer not to include,” id.
Carpenter insists that ”303 Creative also shows that Emilee deserves injunctive relief . . . because the parties had their chance to develop the record below, no one disputes a relevant fact, . . . and 303 Creative shows that compelling speech is per se invalid.” Appellant‘s Letter Br. at 14. To the contrary, 303 Creative makes clear that the district court must be given the opportunity to consider a more fully developed factual record. This is especially so because Carpenter‘s statement that “no one disputes a relevant fact” is incorrect. Here, unlike in 303Creative, the State did not agree to factual stipulations in the district court demonstrating that all of the
Beyond any factual disputes raised with respect to Carpenter‘s alleged expressive activities in her photography and photography-related services, the district court should also consider the nature of the speech on Carpenter‘s company blog in light of a more developed record. Specifically, the court should assess whether Carpenter‘s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customerspurchase from her—in other words, whether Carpenter‘s blogging is a good or service regulated by New York‘s public accommodations laws.
Accordingly, we reject Carpenter‘s request that we direct entry of the preliminary injunction at this stage of the litigation.4
All in all, we have no doubt that “determining what qualifies as expressive activity protected by the
In sum, following 303 Creative, courts must consider whether (1) the law at issue will compel a business owner to engage in activity she would not otherwise engage in, and (2) that activity constitutes the owner‘s expressive activity. To determine whether services constitute expressive activity, courts must analyze whether the vendor creates a medium of expression or communicates an idea through their services or whether she simply engages in predominantly nonexpressive activity of a commercial nature. This is a nuanced, indeed sometimes “difficult,” inquiry whose application to public accommodations laws
What is clear, however, is that 303 Creative is far from an invitation for public accommodations to discriminate against same-sex couples, or inter-faith couples,or bi-racial couples, or any members of protected groups for that matter. To the contrary—the Supreme Court affirmed that it “do[es] not question the vital role public accommodations laws play in realizing the civil rights of all Americans” and “recognized that governments in this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodation.” Id. at 590 (citation omitted) (emphasis added). It called laws like Colorado‘s or New York‘s that “expressly prohibit discrimination on the basis of sexual orientation” “entirely unexceptional.” Id. at 591 (internal quotation marks omitted). And it insisted that “Colorado and other States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses” given that “there are no doubt innumerable goods and services that no one could argue implicate the
* * *
There is little daylight between the facts alleged by Carpenter and the facts stipulated in 303 Creative. As a result, the parties now agree that Carpenter has sufficiently alleged a free speech claim to survive a motion to dismiss. We adopt that position and remand the claim to the district court. However, we decline Carpenter‘s invitation to direct entry of a preliminary injunction. On remand, the district court must undertake that
II. Free Association Claim
Carpenter also appeals the district court‘s dismissal of her claim that New York‘s public accommodations laws violate her
Implicit in the
We need not reach the latter step of the inquiry because no “expressive association” exists here. Here, Carpenter fails to allege that her business—a single-member
To the extent that Carpenter‘s claim is instead that requiring her to transact with same-sex couples violates her
Moreover, the logic of a generalized expressive association objection to transacting with persons that vendors would like to avoid applies to all public accommodation laws. Opponents of the
Carpenter nevertheless argues that 303 Creative dictates reversal on the freedom of expressive association claim in addition to her free speech claim. It does not. As a preliminary matter, in granting certiorari, the Supreme Courtlimited the question presented to “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the
Carpenter attempts to draw support for a contrary conclusion from 303 Creative‘s reference to Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a freedom of association case. But that attempt falls short. In Dale, the Court held that a public accommodations law implicated the Boy Scouts’ right to expressive association because it required the organization to retain a gay rights activist as an
assistant scoutmaster. Id. at 653. Such a requirement, the Court concluded, “would significantly burden the organization‘s right to oppose or disfavor homosexual conduct.” Id. at 659. But the Supreme Court has since clarified that Dale‘s holding is inapplicable if a public accommodations law “does not force [an organization] to accept members it does not desire.” FAIR, 547 U.S. at 69 (internal quotation marks omitted). A “speaker cannot erect a shield against laws requiring access simply by asserting that mere association would impair its message.” Id. (internal quotation marks omitted). That is exactly what Carpenter‘s associational rights claim attempts to accomplish here. We thus affirm the district court‘s dismissal of Carpenter‘s expressive association claim.III. Free Exercise Claim
We also affirm the district court‘s dismissal of Carpenter‘s free exercise claim.
The Free Exercise Clause protects “the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.‘” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524 (2022) (quoting Emp. Div., Dep‘t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)). However, it “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” Kane v. De Blasio, 19 F.4th 152, 164 (2d Cir. 2021) (quoting Smith, 494 U.S. at 879). A law that is both neutral and generally applicable is subject to rational basis review. Id. By contrast, if a law is “not neutral or not generally applicable, it is subject to strict scrutiny, and the burden shifts to the government to establish that the law is narrowly tailored to advance a compelling government interest.” We The Patriots USA, Inc. v. Conn. Off. of Early Childhood Dev., 76 F.4th 130, 144 (2d Cir. 2023).
The district court held that the challenged laws were neutral and generally applicable and therefore subject to rational basis review. See Carpenter, 575 F. Supp. 3d at 381-84. We agree. On appeal, Carpenter does not challenge the district court‘s neutrality holding. And for good reason. The challenged laws are neutral both facially and as applied because they are not “specifically directed at a religious practice.” Slattery v. Hochul, 61 F.4th 278, 292 (2d Cir. 2023) (internal quotation marks omitted). Carpenter focuses instead on general applicability. In particular, she claims that New York‘s laws are not generally applicable because they allow for individualized exemptions and treat comparable secular activity more favorably than her religious exercise.
A law is not generally applicable if it selectively imposes burdens on religious conduct. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). “The Supreme Court has explained that a law is not generally applicable in at least two circumstances: first, where it ‘invites the government to consider the particular reasons for a person‘s conduct by providing a mechanism for individualized exemptions,’ and second, where it ‘prohibits religious conduct while permitting secular conduct that undermines the government‘s asserted interests in a similar
The challenged laws do not provide “a mechanism for individualized exemptions,” meaning they do not invite government officials to consider whether an individual‘s reasons for requesting an exemption are meritorious. See id. at 150 (quoting Fulton, 593 U.S. at 533). Carpenter alleges that New York‘s public accommodations laws contain individualized exemptions because they permit artists to refuse to create cakes with anti-LGBTQ or racist messages. But those refusals are not exemptions for otherwise prohibited conduct. Rather, these refusals are permitted because they are not based on a protected ground such as race or sexual orientation. Accordingly, such conduct is simply not regulated by New York‘s antidiscrimination laws. See
Carpenter points to other examples that purportedly support her argument that New York‘s laws allow for individualized exemptions. For instance, Carpenter cites to administrative decisions issued by the New York Human Rights Division. But in each decision, the administrative law judge (ALJ) found that the complainant failed to show discrimination based on any protected ground. In Battaglia v. Buffalo Niagara Introductions, Inc., No. 10138581, 2012 WL 13207309 (N.Y. Div. Hum. Rts. Jan. 28, 2012), the ALJ found that the complainant was denied service for failing to provide sufficient information in his application, not because of his disability status. In Morgan v. Zaharo Cab Corp., No. 10117888, 2009 WL 10738994 (N.Y. Div. Hum. Rts. Nov. 14, 2008), the ALJ found that the complainant was denied transportation because the taxi driver needed to continue driving passengers already in his car, not because of her race or faith. Carpenter‘s reliance on New York Roadrunners Club v. State Division of Human Rights fares no better. 432 N.E.2d 780 (N.Y. 1982) (per curiam). There, the New York Court of Appeals concluded that the New York City Marathon‘s requirement that participants use their feet did not discriminate based on disability status, because the requirement served legitimate purposes such as promoting fair competition. Id. at 781. Contrary to Carpenter‘s contentions, these decisions do not show that the challenged laws create “individualized exemptions” to discriminate based on sexual orientation or any other protected ground. The cited examples have no bearing on the present question of whether the challenged laws create a system of “individualized exemptions” that would render the laws not generally applicable.
Nor has Carpenter plausibly alleged that the challenged laws treat “comparable secular activity more favorably than religious exercise.” Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per curiam). Indeed, she has failed to identify even a single scenario where a public accommodation vendor may lawfully refuse service based on a customer‘s sexual orientation for secular reasons but not for religious reasons. Instead, Carpenter alleges that New York‘s public accommodations laws permit sex discrimination “based on bona fide considerations of public policy.”
New York‘s public accommodations laws are therefore generally applicable and subject to rational basis review. They easily satisfy rational basis review, as the Supreme Court has long “recognized that governments in this country have a ‘compelling interest’ in eliminating discrimination in places of public accommodation.” 303 Creative, 600 U.S. at 590 (quoting Roberts, 468 U.S. at 628); see also Masterpiece Cakeshop, 584 U.S. at 631 (“[R]eligious and philosophical objections . . . do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.“). We therefore affirm the district court‘s dismissal of the free exercise claim.
IV. Establishment Clause Claim
Carpenter also alleges that the challenged laws violate the Establishment Clause by forcing her to attend and participate in religious ceremonies to which she objects. We agree with the district court that Carpenter has failed to state a claim for violation of the Establishment Clause.
Under the Establishment Clause, the government may not “make a religious observance compulsory,” “coerce anyone to attend church,” or “force citizens to engage in a formal religious exercise.” Kennedy, 597 U.S. at 537 (cleaned up). Carpenter alleges that New York‘s public accommodations laws would force her to attend and participate in same-sex weddings, which she believes are “inherently religious” events. Appellant‘s Br. at 42.
But the challenged laws would only require Carpenter to provide her wedding photography services. Nowhere in her complaint does Carpenter allege that
Nor does Carpenter‘s allegation that her mere presence at a same-sex wedding violates her religious beliefs state a claim under the Establishment Clause, because mere presence does not equate to coerced participation in any religious activity. The activities that take place during a wedding are not directed at the commercial photographer or any other wedding vendor—they are directed at the marrying couple and the couple‘s invited family and friends. Cf. Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587-89 (2014) (concluding that mere presence at a public prayer was not coercive because the public is not “directed” to participate in prayer). As the Supreme Court has explained, “offense does not equate to coercion.” Id. at 567. The Establishment Clause does not include a “modified heckler‘s veto, in which . . . religious activity can be proscribed based on perceptions or discomfort.” Kennedy, 597 U.S. at 534 (cleaned up). This is so even accepting as true Carpenter‘s allegations that she will feel “immense social pressure” to attend and participate in the same-sex wedding. Appellant‘s Br. at 42. Social pressure is not state coercion because “mature adults . . . presumably are not readily susceptible to religious indoctrination or peer pressure.” Galloway, 572 U.S. at 590 (internal quotation marks omitted). As the Supreme Court has emphasized, “learning how to tolerate diverse expressive activities has always been ‘part of learning how to live in a pluralistic society.‘” Kennedy, 597 U.S. at 541 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992)).
For the foregoing reasons, we affirm the district court‘s dismissal of the Establishment Clause claim.
V. Vagueness Claim
Carpenter‘s final two claims focus on the Unwelcome Clause of New York‘s Human Rights Law, which prohibits communications conveying that the patronage of persons with certain protected characteristics is “unwelcome, objectionable or not acceptable, desired or solicited.”
Carpenter argues that this statutory language is unconstitutionally vague, in violation of due process. Like the district court, we conclude that Carpenter has failed to state a valid vagueness claim.
A statute is unconstitutionally vague if it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” or if it “authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Here, though, Carpenter‘s vagueness claim cannot get off the ground, because her own desired speech is clearly covered by the
Carpenter argues that this rule does not apply to vagueness claims based on unbridled enforcement discretion, relying on a D.C. Circuit case. See Act Now to Stop War & End Racism Coal. & Muslim Am. Soc‘y Freedom Found. v. District of Columbia, 846 F.3d 391, 409-10 (D.C. Cir. 2017). We have not decided that question. Nor do we have to decide it here, because even if that is true, Carpenter has not pled a plausible unbridled discretion claim.
Carpenter‘s complaint cannot plausibly allege that the Unwelcome Clause gives New York authorities unbridled discretion when she “fail[s] to cite even a single example of discrimination in enforcement . . . much less show . . . a pattern of discriminatory enforcement.” Telescope Media Grp., 936 F.3d at 762 (rejecting a vagueness challenge to a Minnesota public accommodations law); see also Smith v. Goguen, 415 U.S. 566, 582 n.31 (1974) (noting that “the validity of statutes . . . insofar as the vagueness doctrine is concerned, will depend as much on their judicial construction and enforcement history as their literal terms” (emphasis added)). Without a plausible unbridled discretion argument, Carpenter‘s vagueness claim is clearly foreclosed by Supreme Court precedent, and we affirm its dismissal.
VI. Overbreadth Claim
Finally, like the district court, we conclude that Carpenter has waived any claim that the Unwelcome Clause is facially overbroad. The “strong medicine” of the overbreadth doctrine is to be used “sparingly and only as a last resort.” Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 997 (2d Cir. 1997) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). We will not consider using it here where Carpenter‘s complaint raises no distinct overbreadth claim and makes only passing reference to overbreadth on two occasions within 350 paragraphs, buried in lists of First Amendment doctrines without supporting factual allegations. The claim was further waived in Carpenter‘s briefing, which is comparably sparse and fails to provide any basis for the assertion that the law “bans too much.” Appellant‘s Br. at 60. Through inadequate pleading and briefing, Carpenter has failed to adequately present this claim to the Court, and we therefore affirm the district court‘s dismissal on this ground.
CONCLUSION
The issues in this case require courts to accommodate competing commitments to equality and to the expressive freedoms guaranteed by the First Amendment. On the one hand, it is clear that the First Amendment protects the “freedom to think as you will and to speak as you think.” 303 Creative, 600 U.S. at 584 (quoting Dale, 530 U.S. at 660-61). Laws that are applied to public discourse to coercively alter the messages of private individuals abridge that freedom. Id. at 586-87.
On the other hand, it is equally clear that “gay persons and gay couples cannot
Following the Supreme Court‘s decision in 303 Creative, we agree with Defendants’ concession that Carpenter‘s complaint states a claim that New York‘s public accommodations laws compel her to speak in violation of the First Amendment. However, in light of 303 Creative‘s fact-intensive First Amendment analysis, we deny Carpenter‘s request for entry of a preliminary injunction and instead remand to the district court for determination on a factual record. As to all of her other claims, we hold that dismissal was proper. Accordingly, the judgment of the United States District Court for the Western District of New York is AFFIRMED in part, REVERSED in part, and VACATED in part. We REMAND for further proceedings consistent with this Opinion.