Case Information
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EMILEE CARPENTER, LLC, et al. ,
Plaintiffs, Case # 21-CV-6303-FPG v.
DECISION & ORDER LETITIA JAMES, et al. ,
Defendants.
INTRODUCTION
Our nation was founded on a principle of “inherent equality”—that it is not merely true,
but “self-evident,” that “all men are created equal” and “endowed by their Creator with certain
unalienable Rights,” including “Life, Liberty, and the pursuit of Happiness.”
Adarand
Constructors, Inc. v. Pena
, 515 U.S. 200, 240 (1995) (Thomas, J., concurring in part and
concurring in judgment). Historically, it is an aspiration that has been subject to a variety of
caveats, restrictions, and provisos when applied to certain groups, persons, and classes. But it is
also an aspiration that “could not forever tolerate” such limitations.
City of Mobile v. Bolden
, 446
U.S. 55, 104 (1980) (Marshall, J, dissenting). Throughout our history, Americans have struggled
and suffered in order to extend that principle of equality to the excluded, armed with the belief that
our society should fully reflect our most cherished values. The Supreme Court’s landmark
decisions memorialize the necessary, but oftentimes painful, process of reconciling our values and
our practices.
See Brown v Bd. of Educ. of Topeka, Shawnee Cnty., Kan.
,
As it has elsewhere, this process has unfolded in the arena of the public marketplace. Since
the end of the Civil War, states and localities have enacted and expanded legislation to ensure that
historically underserved, disfavored, or disadvantaged classes of persons have the same access to
the American marketplace’s great bounty as that afforded to the public at large. Without such
access, private discrimination in the marketplace could “perpetuate a caste system in the United
States,”
Bell v. Maryland
,
Plaintiffs are Emilee Carpenter and the entity through which she operates her for-profit wedding-photography business, “Emilee Carpenter, LLC.” [1] Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983, arguing that, as applied to her business, New York’s public- accommodations laws compel her to “violate her conscience by professing the state’s [favorable] view about [same-sex] marriage.” ECF No. 1 at 3. She seeks declaratory and injunctive relief against Defendants Letitia James (in her official capacity as the Attorney General of New York), Jonathan J. Smith (in his official capacity as Interim Commissioner of the N.Y.S. Division of Human Rights (“DHR”)), [2] and Weedon Wetmore (in his official capacity as District Attorney of Chemung County, New York). Currently before the Court are three motions: (1) Plaintiff’s motion for a preliminary injunction (ECF No. 3), (2) Wetmore’s motion to dismiss under Rule 12(b)(1) (ECF No. 24), and (3) the State’s motion to dismiss under Rules 12(b)(1) and 12(b)(6) (ECF No. 27). The motions have been fully briefed, and the Court has also received amicus briefs from dozens of entities and organizations. [3] The Court thanks all involved for their thorough submissions. The magnitude of these briefs, coupled with the passion with which their positions are articulated, demonstrate the importance of the issues under discussion.
For the reasons that follow, Wetmore’s motion is DENIED; the State’s motion is GRANTED insofar as all claims are dismissed with prejudice for failure to state a claim upon which relief may be granted; the Court sua sponte dismisses with prejudice the claims against Wetmore for failure to state a claim upon which relief may be granted; and Plaintiff’s motion for a preliminary injunction is DENIED AS MOOT.
BACKGROUND The following facts are taken from the complaint, unless otherwise noted. Plaintiff describes herself as a “photographer, natural people person, [] storyteller,” and “Christian.” ECF No. 1 at 3. Based in Chemung County, Plaintiff has been a for-profit wedding photographer since 2012, and has operated her business through “Emilee Carpenter, LLC” since 2019. Id. ¶¶ 25, 27. In addition to wedding photography, [4] Plaintiff provides “branding-photography” services, which “depict and promote businesses and their services” for marketing purposes. Id. ¶¶ 36, 37.
Living by the biblical admonition that one should “do it all for the glory of God,” Plaintiff’s religious beliefs “shape every aspect of her life,” including her photography. Id. ¶¶ 20, 21. In order to “honor God’s glory in His creation and display God’s beauty, artistry, and truth,” she only accepts projects in which she can “portray the subject(s) or content of the photograph in a positive, appealing, and uplifting manner.” ¶¶ 41, 42. Similarly, to convey her beliefs that “marriage is a gift from God that should be treasured and celebrated,” Plaintiff “seeks to create photographs that evoke joyful emotions and . . . positively portray the couple, their wedding (or engagement), and God’s design for marriage.” Id. ¶¶ 48, 55.
Plaintiff also uses her photography services to celebrate and promote her view of marriage. On her business’s website, Plaintiff maintains a blog. Plaintiff provides a “complimentary blog post for the client[s]” of each wedding she photographs, in which she posts pictures of the wedding, “encourage[s] the couple, and communicate[s] her views on marriage to the couple and to the general public.” ECF No. 1 ¶¶ 35, 89. Plaintiff believes her blog is “an integral part of her business” that allows her to “publicly associate herself” with her photography and promote “her business, artistic style, and approach to photography.” Id. ¶¶ 91, 92.
In providing her wedding photography services, Plaintiff demands “full artistic license and total editorial discretion” from her clients and uses that discretion to “create her desired image[s] consistent with her artistic style and religious beliefs.” Id. ¶¶ 53, 77. To that end, Plaintiff would not accept any projects that required her to portray “the couple, their marriage, or their wedding in a negative way,” id. ¶ 103, use certain aesthetic styles inconsistent with her “artistic judgment,” id. ¶ 111, or take photographs celebrating “anything immoral” or “dishonorable to God.” Id. ¶ 113. As is relevant here, Plaintiff will decline projects that promote or celebrate same-sex marriage, whether that be a request from a same-sex couple looking for a wedding photographer, or a “staged wedding shoot” for an advertisement that depicts a same-sex wedding. ECF No. 1 ¶¶ 117, 138. She believes that accepting such assignments would, in effect, “promote activities contrary to her beliefs [and] express messages contradicting her beliefs.” ¶ 118. Plaintiff maintains that the issue is not the people involved in the project, but the topic of same-sex marriage itself. She claims that she has no qualms with photographing “LGBT individuals” or working with them as clients in other contexts; her concern is that she does not wish to “participate in a ceremony or express a message [through her photography] that violates her religious beliefs.” Id. ¶¶ 130, 136.
Plaintiff initiated the present suit after learning about New York’s public accommodation laws. She believes that those laws “threaten[] her ability to operate her business according to her faith” and “restrict[] what she could post on her studio’s website and social media sites and what she could say to prospective clients.” ¶ 144. There are four provisions in dispute; three contained in the New York Human Rights Law and one contained in the New York Civil Rights Law.
The first provision is what Plaintiff refers to as the “Accommodation clause.” New York’s Human Rights Law provides: “It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” N.Y. Exec. Law § 296(2)(a). Plaintiff does not dispute that her business is a “public accommodation” subject to the law. ECF No. 1 ¶ 153.
The second provision is the “Denial clause,” which makes it unlawful to “publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place [of public accommodation] shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status.” N.Y. Exec. Law § 296(2)(a).
The third provision is the “Unwelcome clause,” which prohibits a public accommodation from publishing, circulating, issuing, displaying, posting, or mailing any written or printed communication to the effect that “the patronage or custom [] of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.”
The fourth provision is found in New York Civil Rights Law § 40-c. That statute reads:
“No person shall, because of race, creed, color, national origin, sex, marital status, sexual
orientation, gender identity or expression, or disability, as such term is defined in section two
hundred ninety-two of the executive law, be subjected to any discrimination in his or her civil
rights, . . . by any other person or by any firm, corporation or institution, or by the state or any
agency or subdivision of the state.” N.Y. Civ. Rights Law § 40-c(2);
see also id.
§ 40 (stating that
“[a]ll persons within . . . this state shall be entitled to the full and equal accommodations,
advantages, facilities and privileges of any places of public accommodations”). Plaintiff agrees
that this law is co-extensive with the Human Rights Law and does not require separate analysis.
See
ECF No. 3-1 at 11 n.1;
see also Ganzy v. Allen Christian Sch.
,
By her own admission, Plaintiff is currently refusing requests to photograph same-sex weddings, while acknowledging that New York’s public-accommodation laws prohibit her from doing so. In the last year, Plaintiff has received seven requests for same-sex weddings, and she has effectively declined those requests by not responding to them. See ECF No. 1 ¶¶ 266-67. Furthermore, based on her understanding of these laws, Plaintiff has yet to take some actions related to her business that she would have taken absent these laws. See id. ¶¶ 123-25. For example, Plaintiff would like to amend her LLC’s operating agreement to prohibit it from providing wedding photography services to same-sex couples. She would like to do overtly what she is currently doing surreptitiously: screen prospective clients to ensure that she does not agree to photograph a same-sex wedding. And she would like to explicitly advertise her business’s limitations on her website, through social media, and with prospective clients directly.
Both for the actions she has already taken and for those she intends to take, Plaintiff fears prosecution by the three named defendants—James, Smith, and Wetmore. Both James and Smith can file administrative complaints with DHR for violations of Section 296. See N.Y. Exec. Law §§ 295(6)(b), 297(1). Those complaints trigger an investigation by DHR, which, if jurisdiction and probable cause exist, leads to administrative proceedings. Id. §§ 295(7), 297(1), 297(4)(a). If, after a hearing, a public accommodation is found to have violated the Human Rights Law, Smith is empowered to, inter alia , issue cease-and-desist orders, award compensatory damages, and assess civil fines up to $50,000 or (if the violation is willful, wanton, or malicious) up to $100,000. § 297(4)(c). Once an order is entered against a public accommodation, it is subject to criminal penalties if it willfully violates the order, id. § 299, which a district attorney may prosecute. See N.Y. County Law 700(1); see also N.Y. Exec. Law § 299 (stating that violation of a DHR order is a misdemeanor “punishable by imprisonment . . . for not more than one year, or by a fine of not more than five hundred dollars”). Under certain circumstances, James may initiate civil actions to enforce DHR orders and criminally prosecute violators. N.Y. Exec. Law §§ 63(9), (10). In addition, a violation of Civil Rights Law § 40-c constitutes a class A misdemeanor, N.Y. Civ. Rights Law § 40-d, which may be prosecuted by a district attorney or, if not, by James. N.Y. County Law 700(1); N.Y. Exec. Law § 63(10).
On April 6, 2021, Plaintiff brought this pre-enforcement challenge to New York’s public accommodation laws. She alleges that the laws violate (1) her free-speech and free-association rights; (2) her right to freely exercise her religion; (3) the Establishment Clause of the First Amendment; and (4) her right to due process. ECF No. 1 at 47-53. On June 16, 2021, Wetmore filed a motion to dismiss under Rule 12(b)(1), arguing that any action against him is not ripe for adjudication and that Plaintiff lacks standing to bring a pre-enforcement challenge. ECF No. 24. On June 17, 2021, the State moved to dismiss under Rule 12(b)(1) and Rule 12(b)(6). ECF No. 27. It argues that Plaintiff lacks standing, that her claims are not ripe for adjudication, and that the Court lacks jurisdiction over James. The State also argues that Plaintiff has failed to plead any sufficient constitutional claim.
DISCUSSION
The Court concludes that Plaintiff has standing to bring her pre-enforcement challenge, and it denies Defendants’ motions to that extent. On the merits, however, the Court concludes that Plaintiff fails to state a claim for relief, dismisses her claims with prejudice, and will not grant leave to amend. Because the claims are dismissed, Plaintiff’s motion for a preliminary injunction is denied as moot.
I. Standard of Review
A complaint will survive a motion to dismiss under Rule 12(b)(6) when it states a plausible
claim for relief.
Ashcroft v. Iqbal
,
II. Standing
Defendants argue that Plaintiff does not have standing to maintain this action. [5] The State contends that Plaintiff has only alleged a “speculative fear of enforcement,” in light of the absence of “any past enforcement actions against her company” or the possibility “that an investigation will be started any time soon.” ECF No. 27-1 at 13. Furthermore, Plaintiff’s claims “rest on speculation” about whether and how an enforcement action might occur. at 14. The State also suggests that Plaintiff’s putative injury is not traceable to James, insofar as anyone can “initiate a claim under the Human Rights Law.” Id. at 15.
For his part, Wetmore contends that Plaintiff has not alleged a credible threat of enforcement by him pursuant to either the Human Rights Law or Civil Rights Law. He notes that he may criminally prosecute an individual under the Human Rights Law only if the individual interferes with DHR in the performance of its duties or violates a DHR order—neither of which Plaintiff has done or intends to do. See N.Y. Exec. Law § 299. In addition, Wetmore reads Civil Rights Law § 40-d to permit a district attorney to criminally prosecute a public accommodation for violation of Civil Rights Law § 40-c only if the violation occurs “alongside a traditional Penal Law violation.” ECF No. 24-2 at 8. He has gone so far as to file an affidavit averring that his office “would not prosecute an action under the State Civil Rights Law[] absent contemporaneous violation of the Penal Law” or other criminal violation. ECF No. 59 at 8.
The Court concludes that Plaintiff has plausibly alleged standing to bring this pre- enforcement challenge against all three defendants.
“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
‘Controversies.’”
Susan B. Anthony List v. Driehaus
,
“For an alleged injury to support constitutional standing, it must be ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
Knife Rts., Inc. v. Vance
,
“The identification of a credible threat sufficient to satisfy the imminence requirement of
injury in fact necessarily depends on the particular circumstances at issue.”
Knife Rts.
, 802 F.3d
at 384. A credible threat of prosecution cannot rest “on fears that are imaginary or speculative,”
id.
(internal quotation marks omitted), and it “will not be found where plaintiffs do not claim that
they have ever been threatened with prosecution, that a prosecution is likely, or even that a
prosecution is remotely possible.”
Cayuga Nation v. Tanner
,
In this case, the actions in which Plaintiff has engaged and intends to engage are “arguably
affected with a constitutional interest[] but proscribed by statute.”
Knife Rts.
,
Finally, Plaintiff has sufficiently alleged a “credible threat of prosecution” under these
provisions.
Knife Rts.
,
Defendants’ arguments to the contrary are not persuasive. The State cites
Jones v.
Schneiderman
, 101 F. Supp. 3d 283 (S.D.N.Y. 2015), for the proposition that “[a] government
official’s statement that a statute prohibits a type of conduct in the abstract—even where the
official also states her intent to enforce the statutory prohibition against the public generally—is
usually insufficient, without more, to establish that prosecution is imminent against a particular
plaintiff.” ECF No. 27-1 at 13. In the context of pre-enforcement constitutional challenges, the
Second Circuit has explicitly rejected the rule stated in
Jones
.
See Cayuga Nation
, 824 F.3d at
332 n.9 (stating that “an individual plaintiff [can] establish standing even where there [is] no
express threat of prosecution specifically directed at the plaintiff”). No specific threat of
enforcement is necessary to confer standing.
See Tong
,
The State next contends that James is an improper defendant because, although she can file
administrative complaints for violations of the Human Rights Law, so can “almost anybody.” ECF
No. 27-1 at 15. But to show that her injury will be “redressed by a favorable decision,”
Driehaus
,
As for Wetmore, he has filed an affidavit stating that he would not prosecute a person under Civil Rights Law § 40-d “absent a contemporaneous violation of the Penal Law” or other allegations “indicating another explicit criminal violation.” ECF No. 59 at 8. These caveats are derived from Wetmore’s belief that, historically, district attorneys have only prosecuted violations of the Civil Rights Law when those violations have been “accompanied by other [legal] violations.” ECF No. 24-2 at 6.
The Court is not convinced. Even if Wetmore’s view finds support in the prosecution
history of the statute, it remains the case that Civil Rights Law § 40-d makes it a criminal offense
to “violate any of the provisions of [Civil Rights Law § 40-c].” N.Y. Civ. Rights Law § 40-d.
There is no explicit exception or caveat of the kind Wetmore seeks to include. Plaintiff reads Civil
Rights Law § 40-d to render her criminally liable if she is found “to have discriminated against
any other person because of sexual orientation,” ECF No. 1 ¶ 224, and that straightforward
interpretation is “reasonable enough” for her to “legitimately fear . . . enforcement of the statute.”
Pac. Capital Bank, N.A. v. Connecticut
,
In sum, Plaintiff has standing because she has plausibly alleged that she engaged and
intends to engage “in a course of conduct arguably affected with a constitutional interest, but
proscribed by statute, and there exists a credible threat of prosecution thereunder.”
Knife Rts.
, 802
F.3d at 384 (internal ellipsis omitted). This conclusion is consistent with the recent decisions of
two federal circuit courts.
See Elenis
,
III. Free Speech/Free Association Claim
Plaintiff’s first claim proceeds as follows. Through her photography, Plaintiff seeks to express the “love, intimacy, and sacrifice of God’s design for marriage,” which, in her view, can only exist in marriages “between one man and one woman.” ECF No. 1 ¶¶ 47, 48, 57, 117. She claims that, because she offers her wedding-photography services to opposite-sex couples, the Accommodation clause applies to her business and compels her to offer those same expressive services to same-sex couples. In practical effect, this means that the Accommodation clause compels her to create artistic expression that celebrates same-sex marriages and to associate herself with same-sex marriages, contrary to her desire and beliefs. Plaintiff argues that this statutory mandate is subject to strict scrutiny and violates her speech and associational rights under the First Amendment. In a similar vein, Plaintiff asserts that the Denial and Unwelcome clauses unconstitutionally prohibit her from advertising her religious views and her business’s policies on same-sex marriage.
The State responds that the purpose of the Accommodation clause is not to compel speech as such, but rather to prohibit businesses from discriminating against certain protected classes of potential customers. Any effect that prohibition may have on the kinds of expression that Plaintiff ultimately produces is merely incidental to the antidiscriminatory purpose of the law. The State therefore argues that the Accommodation clause is subject to “a deferential standard of review,” and that it satisfies that standard in light of the State’s “compelling governmental interest” in eradicating discrimination. ECF No. 26 at 23.
a. Accommodation Clause
“The First Amendment, applicable to the States through the Fourteenth Amendment,
prohibits laws that abridge the freedom of speech.”
Nat’l Inst. of Fam. & Life Advocs. v. Becerra
,
138 S. Ct. 2361, 2371 (2018). “Some of [the Supreme] Court’s leading First Amendment
precedents have established the principle that freedom of speech prohibits the government from
telling people what they must say.”
Rumsfeld v. F. for Acad. & Institutional Rts., Inc.
, 547 U.S.
47, 61 (2006);
see, e.g.
,
West Virginia State Bd. of Educ. v. Barnette
,
The Supreme Court has imposed a lesser degree of scrutiny on regulations that only
“incidentally burden[] speech.”
United States v. Albertini
,
The Supreme Court has also held that the Constitution protects one’s “freedom of
expressive association”—that is, “[the] right to associate for the purpose of engaging in those
activities protected by the First Amendment—speech, assembly, petition for the redress of
grievances, and the exercise of religion.”
Roberts v. U.S. Jaycees
, 468 U.S. 609, 618 (1984).
“Freedom of association . . . presupposes a freedom not to associate,”
id.
at 623, and “[t]he forced
inclusion of an unwanted person in a group infringes the group’s freedom of expressive association
if the presence of that person affects in a significant way the group’s ability to advocate public or
private viewpoints.”
Boy Scouts of America v. Dale
,
For purposes this order, the Court will assume that strict scrutiny applies on the theory that
the Accommodation clause compels speech and expressive association. It is true that the
Accommodation clause does not
facially
regulate a public accommodation’s speech or other
expressive activity; it simply prohibits public accommodations from withholding their goods or
services for discriminatory reasons.
See
N.Y. Exec. Law § 296(2)(a);
see also Hurley
, 515 U.S.
at 572. For the vast majority of businesses, the obligation to serve a customer pursuant to
antidiscrimination legislation does not implicate a cognizable First Amendment interest.
See
Masterpiece Cakeshop
,
Plaintiff’s theory is a bit more nuanced than that. The complaint alleges—and the Court
must accept—that Plaintiff does not intend to wholly discriminate against LGBT individuals as
such, and she is willing to provide a variety of photography services to LGBT individuals.
See
ECF No. 1 ¶¶ 128-32. What Plaintiff is challenging is the Accommodation clause’s prohibition
on “limited menus.” It is well-settled that the Accommodation clause not only prohibits a public
accommodation from wholly denying a person its services on the basis of a protected
characteristic, but also from withholding “
any
of the . . . advantages . . . or privileges” it offers to
the public. N.Y. Exec. Law § 296(2)(a) (emphasis added). As a result, “[t]he statute does not
permit businesses to offer a limited menu of goods and services to customers on the basis of a
status that fits within one of the protected categories.”
Gifford
, 23 N.Y.S.3d at 429 (internal
quotation marks omitted);
see, e.g.
,
Batavia Lodge No. 196, Loyal Ord. of Moose v. N.Y.S. Div. of
Hum. Rts.
,
Plaintiff argues that, as applied to her, the prohibition on “limited menus” compels her to
create photographs for same-sex couples that celebrate their marriages if she creates photographs
for opposite-sex couples that celebrate their marriages.
See
ECF No. 1 ¶ 160. The Court does not
consider this a strained interpretation of the Accommodation clause or an unlikely target of the
State’s enforcement efforts. Just a few years ago, the Appellate Division, Third Department,
interpreted the Accommodation clause to prohibit “limited menus” and upheld a DHR
determination that a wedding venue violated that prohibition when it refused to host a same-sex
wedding ceremony, even if it “would ‘happily’ host wedding receptions, parties or other events
for couples in same-sex relationships.”
Gifford
,
Plaintiff thus makes a plausible case that the “limited menu” prohibition compels her to
create speech—
i.e.
, photographs celebrating the marriage of same-sex clients
[10]
—to the same
extent she creates such speech for opposite-sex clients. In analogous circumstances, two federal
circuit courts have agreed that, as applied, public accommodation laws can operate to compel
speech in this manner.
See Elenis
,
Regardless, the Court need not make any definitive determination on the matter. The Court
will simply assume that, as applied, the Accommodation clause operates to compel Plaintiff to
speak in the manner she claims, and it will therefore apply strict scrutiny to assess the
constitutionality of that statutory command.
See Becerra
,
As noted, content-based regulations of speech “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Becerra , 138 S. Ct. at 2371. The State asserts that it has a “compelling governmental interest” in “[t]he eradication of discrimination.” ECF No. 27-1 at 31. The Court interact” with the couple or to “encourage” wedding guests, so the Accommodation clause does not compel equal access to those activities. The blogposts are a closer call, as Plaintiff sometimes claims that blogging is a “service” she provides to couples, though elsewhere she suggests that its purpose is to advocate for her own religious beliefs and market her business. ECF No. 1 ¶¶ 35, 91, 92, 93, 156; see also ECF No. 3-5 ¶¶ 116-41. While the Court frames its analysis in terms of compelled photography, this equally applies to Plaintiff’s blogging, assuming it could be deemed an accommodation, advantage, facility or privilege of her business.
agrees, though that interest must be delineated with more precision than the State’s formulation.
Specifically, the Court agrees that New York has a compelling interest in ensuring that individuals,
without regard to sexual orientation, have “equal access to publicly available goods and services.”
Roberts
,
This economic interest is consistent with one of the earliest justifications for public
accommodation laws. At common law, “a person engaged in a public calling, such as innkeeper
or common carrier, was held to be under a duty to the general public and was obliged to serve,
without discrimination, all who sought service.”
Madden v. Queens Cnty. Jockey Club, Inc.
, 296
N.Y. 249, 253 (1947);
see also Hurley
,
In New York, these changes were upheld as consistent with the State’s police power. For
example, in
People v. King
,
In other words, one of the objects of public accommodation law is “to ensure by statute for [individuals in historically disadvantaged or disfavored classes] desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn”—namely, “that accepting the usual terms of service, they will not be turned away merely on the proprietor’s exercise of personal preference.” Hurley , 515 U.S. at 578. This justification animates New York’s public accommodation laws in the context of sexual orientation discrimination. When, in 2003, the New York legislature amended the Human Rights Law and Civil Rights Law to add sexual orientation as a protected category, it declared “that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering.” See 2002 N.Y. Sess. Laws ch. 2, § 1. The purpose of the legislation was to dismantle the economic barriers that hindered LGBT individuals’ opportunities to enjoy a “full and productive life,” rather than to “promote any particular attitude, course of conduct or way of life.” Id.
The Supreme Court has long found this interest compelling. A state’s interest in
“eliminating discrimination” so as to ensure that “its citizens [have] equal access to publicly
available goods and services” is one of the “highest order.”
Roberts
,
Nevertheless, some courts appear to have concluded that, while parity of access to publicly
available goods and services is a compelling interest as a general matter, it is not compelling
enough to justify a public accommodation law that compels speech or forces inclusion in a manner
that impairs the accommodation’s expressive activity.
See Lucero
,
In Dale , the Supreme Court held that New Jersey’s public accommodation law was applied in an unconstitutional manner when it required the Boy Scouts—a “private, not-for-profit organization engaged in instilling its system of values in young people”—to accept James Dale, an “avowed homosexual and gay rights activist,” as a member. Dale , 530 U.S. at 644. “[H]omosexual conduct” was “inconsistent with the values” that Boy Scouts taught and worked to instill. Id. at 650. The Supreme Court recognized the compelling interest “in eliminating discrimination” in public accommodations, but it observed that “[a]s the definition of ‘public accommodation’ has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.” Id. at 657. By forcing the Boy Scouts to include Dale, New Jersey had “significantly affect[ed]” the organization’s expression, id. at 656, and “such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association” could not be justified by the state’s antidiscrimination interests. Id. at 659.
In
Hurley
, the Supreme Court drew a similar line with respect to compelled speech. In that
case, the Massachusetts Supreme Judicial Court had interpreted the state’s public accommodation
law to require “private citizens who organize a parade to include among the marchers a group
imparting a message the organizer do not wish to convey.”
Hurley
,
The Supreme Court agreed. The parade was a form of expression protected by the First
Amendment,
see id.
at 569-70, and the Court was of the opinion that Massachusetts’s public
accommodation law “ha[d] been applied in a peculiar way,” insofar as it did not merely compel
“openly gay, lesbian, or bisexual individuals” to be admitted into the parade, but required “the
admission of [the group] as its own parade unit carrying its own banner.”
Id.
at 572. In the Court’s
view, this had the effect of “essentially requiring [the organizers] to alter the expressive content of
their parade” and of “declaring the [organizers’] speech itself to be the public accommodation.”
Id.
at 572-73. This expansive application of public accommodation law “violate[d] the
fundamental rule of protection under the First Amendment, that a speaker has the autonomy to
choose the content of his own message.”
Hurley
,
Both
Dale
and
Hurley
involved, in the Supreme Court’s view, expansive applications of
public accommodation laws that reached beyond their core, economic justification. As originally
envisioned, public accommodation laws sought to extend the “old common law” rule—which
promised “to any member of the public wanting a meal at the inn [that] . . . they will not be turned
away merely on the proprietor’s exercise of personal preference”—to a wider swath of publicly
available goods and services. at 578. But the laws originally did no more than compel an
economic relationship between proprietor and customer, a relationship that is not clothed with a
significant level of constitutional protection.
See Roberts
, 468 U.S. at 634 (O’Connor, J.,
concurring in part and concurring in judgment) (“The Constitution does not guarantee a right to
choose employees, customers, suppliers, or those with whom one engages in simple commercial
transactions, without restraint from the State. A shopkeeper has no constitutional right to deal only
with persons of one sex.”). Over time, however, public accommodation laws were extended to
compel not only access to goods and services available in the public marketplace, but also to
membership in organizations.
See id.
at 616, 625-26. Standing alone, this was not irrational or
unjustified, as membership in a private organization can confer various privileges and benefits.
See id.
at 626. But the Supreme Court believed that, “[a]s the definition of ‘public accommodation’
[] expanded [beyond] clearly commercial entities,” the potential “for conflict between state public
accommodations laws and the First Amendment rights of organizations [] increased.”
Dale
, 530
U.S. at 657. Individuals have a First Amendment right to “combine with others to advance [their]
views,” and compelling a group to accept others as members or participants can conceivably
interfere with the group’s ability “to advocate its desired viewpoints.”
New York State Club Ass’n,
Inc. v. City of New York
,
So it came to pass in
Dale
. Compelling the Boy Scouts to accept Dale as a member would
“derogate from the organization’s expressive message” and was thus unconstitutional.
Dale
, 530
U.S. at 661. The constitutional infirmity was even more pronounced in
Hurley
. The private parade
was deemed a public accommodation in which participation could be compelled, notwithstanding
that, unlike other private organizations, the parade appeared to offer no public “benefit” beyond
its expression itself.
See Hurley
,
A mandate that a business operating in the public marketplace provide equal,
nondiscriminatory access to its goods and services is a faithful application of, not a departure from,
the “old common law” duties applicable to quasi-public entities like inns.
Hurley
,
Thus, New York has a compelling interest in ensuring that individuals, without regard to
sexual orientation, have “equal access to publicly available goods and services.”
Roberts
, 468
U.S. at 624. The only remaining question is whether the Accommodation clause is “narrowly
tailored,” as applied to Plaintiff, to serve that interest.
Becerra
,
New York’s public accommodation laws apply only to those businesses that choose to
“provide services to the public” and are “open to all comers.”
Cahill
,
Nevertheless, Plaintiff asserts that the Accommodation clause is not the least restrictive
means of achieving the State’s interest.
See
ECF No. 3-1 at 31-32;
see also United States v.
Playboy Ent. Grp., Inc.
,
The Court is not persuaded. As Plaintiff concedes, an “expressive” service like hers is not
fungible.
See
ECF No. 57 at 28. Her photographs are a product of her personal “artistic
discretion,” “technical proficiency,” and “moral standards,” and it is her “faith and eye for beauty”
that “shape her photography—from first click to final edit.” ECF No. 1 at 3;
id.
¶¶ 54, 77, 80.
While other photographers may operate in the same market, Plaintiff does not allege that they
would deliver the
same
photographs she does.
Cf. Elenis
,
Accordingly, the Court concludes that New York has a compelling interest in ensuring that individuals, without regard to sexual orientation, [14] have equal access to publicly available goods and services, and that the Accommodation clause is narrowly tailored, as applied to Plaintiff, to serve that interest. As a result, even if the Accommodation clause compels speech or expressive association in a manner that implicates Plaintiff’s free-speech and free-association interests, the provision survives strict scrutiny.
b. Denial/Unwelcome Clauses
Plaintiff’s free-speech challenge to the Denial and Unwelcome clauses does not require
significant analysis. It is well-established that a state “may prohibit speech that promotes unlawful
activity, including unlawful discrimination.”
Elenis
,
In this case, Plaintiff seeks to post a statement advertising the fact that she will not
photograph same-sex weddings, and she wishes to make similar statements directly to prospective
clients.
See
ECF No. 1 ¶¶ 246, 251. But it is unlawful for Plaintiff to discriminate on that basis,
so New York may permissibly prohibit Plaintiff from advertising that “unlawful activity.”
Elenis
,
In light of the foregoing, Plaintiff has failed to state a viable free speech/free association claim on any of the theories she raises. [15]
IV. Free Exercise
Plaintiff next asserts that New York’s public accommodation laws violate her First Amendment right to free exercise of religion. Plaintiff maintains that she exercises her religion when she operates her business, takes photographs of weddings, and participates in wedding ceremonies. ECF No. 1 ¶ 342. She claims that, as applied to her, the laws “substantially burden [her] sincerely held religious beliefs by requiring [her] to either operate [her] expressive business in a way that violate[s] [her] religious beliefs or to close [her] business.” ¶ 343. The Court concludes, however, that the laws are neutral and generally applicable and survive rational basis review.
“[L]aws incidentally burdening religion are ordinarily not subject to strict scrutiny under
the Free Exercise Clause so long as they are neutral and generally applicable.”
Fulton v. City of
Philadelphia
,
In terms of neutrality, the Supreme Court has been clear that the “[g]overnment fails to act
“unwelcome” under the Human Rights Law),
aff’d
,
neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices
because
of their religious nature
.”
Fulton
,
New York’s public accommodation laws are neutral. By only bringing an as-applied
challenge, Plaintiff virtually concedes that the laws are facially neutral.
See
ECF No. 1 ¶ 343. She
raises no non-conclusory factual allegations that the laws were enacted with any kind of religious
(or anti-religious) motivation. And while Plaintiff attempts to assert that the State “punishes” and
“manifests hostility towards” religiously motivated objectors,
id.
¶¶ 292, 293, she does not marshal
sufficient factual allegations to make that assertion plausible. The indicia cited—
e.g.
,
administrative decisions in which DHR found that public accommodations had not denied service
for discriminatory reasons,
id.
¶ 291; the State’s position that religious motivations do not exempt
public accommodations from public accommodation laws,
id.
¶¶ 288, 289, 295; and a tweet by
James in which she expresses disagreement with the
Masterpiece
decision,
id.
¶ 296—do not
support Plaintiff’s assertion and are unlike the sort of hostile conduct that might support a claim.
See, e.g.
,
Masterpiece
,
The mere fact that a state enforces its public accommodation laws notwithstanding the religious motivations of the accommodation does not evince impermissible hostility. See id. at 1727 (“[Religious 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.”); Newdow v. Peterson , 753 F.3d 105, 109 (2d Cir. 2014) (“[T]he Free Exercise Clause does not normally inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct.” (internal quotation marks omitted)).
Plaintiff focuses her attention more on the argument that New York’s public
accommodation laws are not generally applicable. “The principle that government, in pursuit of
legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by
religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.”
Lukumi
,
For example, in
Lukumi
, the City of Hialeah enacted several ordinances that prohibited
religious sacrifice of animals but exempted secular slaughterhouses, kosher slaughterhouses,
hunting, fishing, extermination of pests, and euthanasia of animals.
Lukumi
,
That is not, however, the case here. New York’s public accommodation laws prohibit sexual orientation discrimination and equally burden both discriminatory conduct motivated by religious belief and discriminatory conduct motivated by secular considerations. In other words, New York does not permit discrimination against same-sex couples for secular purposes but prohibit discrimination against same-sex couples for religious purposes. Indeed, Plaintiff has not pled a single example of New York “ ever permitting sexual orientation discrimination [for] any reason—secular or religious.” ECF No. 27-1 at 21.
Plaintiff identifies several exemptions from the Human Rights Law and argues that these exemptions make the laws not generally applicable. See ECF No. 1 ¶¶ 314-16. Most of these exemptions are not relevant, as they apply to discrimination in employment and housing. But, as Defendants correctly observe, “Plaintiff is not asking for an exemption in providing employment or housing, only in offering wedding photography.” ECF No. 27-1 at 21. For the same reason, Section 296(2)(b), which excuses only sex discrimination by public accommodations based on “bona fide considerations of public policy,” is not relevant. [16]
The only relevant exemption Plaintiff identifies is New York Domestic Relations Law §
10-b, which exempts religious entities and benevolent orders from being required to provide
services for “the solemnization or celebration of a marriage.” ECF No. 1 ¶ 316. Plaintiff fails to
plausibly allege that this exemption undermines the State’s interest in providing equal access to
the public marketplace.
See
note 11
supra
;
see also Fulton
,
Accordingly, Plaintiff has failed to plausibly allege that New York’s public
accommodation laws are either not neutral or not generally applicable. As a result, rational basis,
not strict scrutiny, applies.
See Cent. Rabbinical Congress of U.S. & Canada v. N.Y.C. Dep’t of
Health & Mental Hygiene
,
V. Establishment Clause
Plaintiff asserts that New York’s public accommodation laws force her to “participate in
religious exercises contrary to [her] sincere religious beliefs.” ECF No. 1 ¶ 356; ECF No. 56 at 7-
8 (arguing that “New York’s laws also force [Plaintiff] to participate in and attend sacred
ceremonies she objects to”). In her view, equal access under public accommodation law requires
her to “celebrate the wedding,” “follow[] the officiant’s instructions,” “sing,” and pray at same-
sex weddings to the same extent she does so at opposite-sex weddings. ECF No. 3-1 at 28. “It is
an elemental First Amendment principle that government may not coerce its citizens to support or
participate in any religion or its exercise.”
Town of Greece, N.Y. v. Galloway
,
Therefore, this claim must be dismissed.
VI. Vagueness/Due Process
Plaintiff has also raised a claim alleging violation of the Due Process Clause of the Fourteenth Amendment. ECF No. 1 ¶ 360. She alleges that the Unwelcome clause is facially vague and grants officials “unbridled discretion.” ECF No. 57 at 33. Her theory is that because the Unwelcome clause fails to define words like “unwelcome” or “objectionable,” Defendants can employ its language “in a way that discriminates against content, viewpoints, and actions Defendants disfavor.” ECF No. 1 ¶ 364; ECF No. 57 at 33-34.
“[A] plaintiff who engages in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others.”
Holder v. Humanitarian Law
Project
,
VII. Sua Sponte Dismissal of Claims against Wetmore
Although Wetmore has not moved to dismiss Plaintiff’s claims on the merits, the reasons
justifying dismissal of the claims against the State apply equally to him. The Court “has the power
to dismiss a complaint sua sponte for failure to state a claim on which relief can be granted,” so
long as it gives “the plaintiff an opportunity to be heard.”
Thomas v. Scully
,
VIII. Leave to Amend
Finally, the Court dismisses all claims with prejudice and will not give Plaintiff leave to
amend. The defects in Plaintiff’s claims are primarily ones of law, not of fact. In that
circumstance, a court may deny leave to amend.
See Ruffolo v. Oppenheimer & Co.
, 987 F.2d
129, 131 (2d Cir. 1993) (“Where it appears that granting leave to amend is unlikely to be
productive . . . it is not an abuse of discretion to deny leave to amend.”). And as to any claims that
suffer from a pleading deficiency, Plaintiff does not seek leave to amend, and so the Court need
not provide it.
See Ritchie Cap. Mgmt., L.L.C. v. Gen. Elec. Cap. Corp.
,
CONCLUSION
For the foregoing reasons, Defendant Wetmore’s motion to dismiss under Rule 12(b)(1) (ECF No. 24) is DENIED. The State’s motion to dismiss (ECF No. 27) is GRANTED insofar as all claims against Defendants Letitia James and Johnathan J. Smith are dismissed, with prejudice, for failure to state a claim upon which relief may be granted. In addition, all claims against Defendant Weedon Wetmore are sua sponte dismissed, with prejudice, for failure to state a claim upon which relief may be granted. Plaintiff’s motion for a preliminary injunction (ECF No. 3) is DENIED AS MOOT. The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED. Dated: December 13, 2021
Rochester, New York ______________________________________ HON. FRANK P. GERACI, JR.
United States District Judge Western District of New York
Notes
[1] Except where context dictates otherwise, the Court refers to Emilee Carpenter and Emilee Carpenter LLC as “Plaintiff.”
[2] The Court refers to James and Smith collectively as “the State.”
[3] These entities include: the States of Nebraska, Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah, and West Virginia (ECF No. 22); the New Yorker’s Family Research Foundation and New Yorkers for Constitutional Freedoms (ECF No. 23); the Coalition of African American Pastors, Conservative Clergy of Color, Frederick Douglass Foundation, and the Restoration Project (ECF No. 50); New York Civil Liberties Union and American Civil Liberties Union (ECF No. 51); Americans United for Separation of Church and State, Anti-Defamation League, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Global Justice Institute – Metropolitan Community Churches, Hindu American Foundation, Men of Reform Judaism, Methodist Federation for Social Action, National Council of Jewish Women, New York Conference – United Church of Christ, Reconstructionist Rabbinical Association, Union for Reform Judaism, and Women of Reform Judaism (ECF No. 52); and the States of Massachusetts, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia (ECF No. 55).
[4] Plaintiff also provides engagement photography. ECF No. 1 ¶ 32. When the Court refers to Plaintiff’s “wedding photography services,” it means both engagement and wedding photography.
[5] Defendants frame their arguments both in terms of standing and in terms of ripeness.
See
ECF No. 24-2 at 2, 10-13;
ECF No. 26 at 12; ECF No. 59 at 2-3. Because the Court addresses and resolves the question of standing, it need not
separately address ripeness.
See Nat’l Org. for Marriage, Inc. v. Walsh
,
[6] True, Plaintiff alleges that her refusal to undertake such projects results from her religious objection to same-sex
marriage specifically, rather than any sort of discriminatory animus to LGBT individuals more generally.
See
ECF
No. 1 ¶¶ 128-40. But given the obvious, intrinsic link between same-sex couples and same-sex marriage, courts have
not found that distinction material.
See, e.g.
,
303 Creative LLC v. Elenis
, 6 F.4th 1160, 1173 (10th Cir. 2021)
(“[A]lthough [the business’s] ‘ultimate goal’ might be to only discriminate against same-sex marriage, to do so [the
business] might also discriminate against same-sex couples. As a result, [the business’s] refusal may be ‘because of’
the customers’ sexual orientation.”);
Elane Photography, LLC v. Willock
,
[7] The Court has repeatedly used the modifier “arguably” in this section to make clear that the inquiry into standing
does not involve a definitive assessment of the merits of Plaintiff’s allegations.
See Davis v. United States
, 564 U.S.
229, 249 n.10 (2011) (cautioning that “weakness on the merits [should not be confused] with absence of Article III
standing”);
Driehaus
,
[8] Because James is a proper defendant on this basis, the Court need not address whether James may be sued based on her authority under Executive Law § 63. See ECF No. 27-1 at 16.
[9] Because Plaintiff’s theory as to the threat of prosecution is fairly discernible from her complaint, the Court denies Wetmore’s request for “a more definite statement [clarifying] . . . how [he] could be in controversy with the plaintiff.” ECF No. 24-2 at 14 (citing Fed. R. Civ. P. 12(e)).
[10] In addition to the photography itself, Plaintiff claims that she engages in a variety of other activities in connection with each wedding she photographs. For example, she writes a blog post about the wedding, she acts “personally excited” at the wedding, she “verbally encourag[es]” the wedding party, and she “personally and joyfully interact[s]” with the bride and groom. ECF No. 1 ¶¶ 65, 68. Taken to an extreme, the “limited menu” prohibition might be interpreted to compel these activities in addition to the photography service itself. See ECF No. 3-1 at 28. But the Court is skeptical of the proposition that, merely because Plaintiff does these things in conjunction with the opposite- sex weddings she photographs, the Accommodation clause compels her to do the same at same-sex weddings. The Accommodation clause only mandates equal access to the “accommodations, advantages, facilities or privileges” of the public accommodation, i.e. , the goods or services the accommodation provides to the public. N.Y. Exec. Law. § 296(2)(a). The service that Plaintiff provides to the public is wedding photography. She is not hired to “joyfully
[11] The antecedent question—whether a business has sufficiently opened its doors to the public such that it is a public accommodation—is not at issue in this case. Plaintiff concedes that her business is a public accommodation. ECF No. 1 ¶¶ 150, 153.
[12] Plaintiff argues that the claimed importance of New York’s interest is undermined by the fact that it provides
exemptions from its antidiscrimination laws in certain instances of sex and disability discrimination.
See
ECF No. 3-
1 at 30-31. Even if that were true, the Court is not persuaded that any underinclusiveness with respect to other forms
of discrimination renders the laws underinclusive with respect to sexual orientation discrimination.
In addition, Plaintiff and some
amici
point out that New York exempts religious entities and benevolent orders from
its public accommodation laws.
See
ECF No. 1 ¶ 316; ECF No. 22 at 25 (citing N.Y. Dom. Rel. Law § 10-b(1)).
However, no argument has been made that these ostensibly private entities engage in public commercial activities to
such a degree that an exemption limits LGBT individuals’ access to publicly available goods and services.
Cf. New
York State Club Ass’n v. City of New York
,
[13] Because Plaintiff concedes that she serves the public at large and is a public accommodation, ECF No. 1 ¶¶ 151,
153, the Court need not delineate the precise scope of the “distinctly private” exemption. Still, it is worth noting that
this exemption seems particularly well-suited to artists who must be selective in their clientele in order to express their
desired message.
See Cahill
,
[14] The analysis may well be different with respect to other protected classes. Over the years, “[p]ublic accommodations
laws have [] broadened in scope to cover more groups” beyond “those groups that have been given heightened equal
protection scrutiny under [Supreme Court precedent].”
Dale
,
[15] In addition, Plaintiff attacks the Unwelcome clause as facially overbroad.
See
ECF No. 1 ¶ 333; ECF No. 57 at 33.
In her view, that provision “could cover any critical statement related to protected classes on a public accommodation’s
website—statements like ‘Israel commits murder’ or ‘Catholicism is wrong.’” ECF No. 57 at 33. The Court dismisses
this claim. In her briefing, Plaintiff fails to undertake any meaningful statutory analysis of the clause to support her
claimed interpretation.
See Adams v. Zenas Zelotes, Esq.
, 606 F.3d 34, 38 (2d Cir. 2010) (“[I]t is impossible to
determine whether a statute reaches too far without first knowing what the statute covers.”). It is not incumbent upon
the Court to do so on her behalf.
See United States v. Zannino
,
[16] In
Bostock v. Clayton County, Georgia
,
[17] Plaintiff cannot succeed under a “hybrid rights” theory, ECF No. 1 ¶ 348, because the Second Circuit does not
recognize such claims.
See Leebaert v. Harrington
,