Emilee Carpenter is a New York-based photographer targeting a state law she says forces her to create messages that violate her beliefs – specifically, those regarding same-sex "weddings." Johannes Widmalm-Delphonse is an attorney with Alliance Defending Freedom (ADF), the law firm representing Carpenter.
"Unfortunately, the New York District Court has said that the government can compel her to speak messages that she disagrees with because her art is a product of her unique artistic style and vision," the attorney explains. "That doesn't square with the First Amendment – so we've appealed to the Second U.S. Circuit Court of Appeals, asking them to vindicate Emilee's fundamental right to freely live and work according to her beliefs."
This is a pre-enforcement challenge, meaning Carpenter has not yet been brought up on charges. Still, New York still expects Carpenter and others to comply.
"She faces up to $100,000 fines, a revoked business license, and could be thrown in jail for up to a year under this law," explains Widmalm-Delphonse. "So, we went to court on her behalf because no government should have the unchecked power to violate these basic rights."
It's up in the air as to when the Second Circuit may take up the case, but ADF hopes to get a time soon as to "vindicate her rights."
"Everyone should care about this, no matter what side of an issue you land on," says Widmalm-Delphonse. "This case is actually similar to another case in the Tenth Circuit Court of Appeals called 303 Creative v. Elenis."
In that case, says the attorney, the Tenth Circuit came to the unprecedented conclusion that a graphic designer could be forced to speak messages that she disagrees with because her art is custom and unique.
"[But] again, that doesn't square with the First Amendment," the ADF attorney emphasizes, "and so we filed a petition with the Supreme Court of the United States asking them to overturn the Tenth Circuit decision."
As of now, Carpenter is operating her business, but under what ADF calls these "draconian threats" of fines, loss of license, and jail time.
"And she has been forced to restrict speech," adds Widmalm-Delphonse. "She can't speak freely about her beliefs or about the services that she's willing to provide on her website or in person to her customers.
"So even though she's able to operate her business, the law's affecting her right now and violating her freedom of speech right now."
As ADF explains in the filed complaint, the laws of the state of New York give Carpenter a "multiple-choice test with only bad answers": violate the law, ignore her faith, or end her business. But the First and Fourteenth Amendments, says the legal firm, give her another option: "none of the above."
ADF case page: Emilee Carpenter Photography v. James