• “He refuses to take photos of a gay wedding. Virginia says he’s allowed.”—Washington Post

LEGAL ISSUES

He refuses to take photos of a gay wedding. Virginia says he’s allowed.

By Rachel Weiner and Justin Jouvenal
November 8, 2023 at 12:50 p.m. EST



Wedding photographer Bob Updegrove: “Like any other artist, I want to create photography that I believe in.” (Alliance Defending Freedom)

A Virginia photographer can refuse to take pictures of same-sex weddings and say so on his website after the settlement of a federal lawsuit that challenged the state’s ban on discrimination against gay and transgender people. ... The state committed in a filing in the U.S. Court of Appeals for the Fourth Circuit to not require Bob Updegrove “to offer or provide photography celebrating same-sex weddings” or prevent him from expressing that position in promotional materials. The settlement specifically cited the Supreme Court’s landmark decision in the case of Colorado web design company 303 Creative, in which the six conservatives on the court ruled that the First Amendment allows some businesses to refuse to work for same-sex couples.

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The decision is a blow to the Virginia Values Act, a landmark 2020 law that made Virginia the first state in the South to enact wide-ranging protections for LGBTQ people. The bill was signed by then Gov. Ralph Northam (D) and was one of the signature bills after Democrats took control of the state legislature in 2019. Sen. Adam Ebbin (D-Alexandria), who introduced that legislation, said Tuesday that in settling the case, Virginia Attorney General Jason Miyares gave “a sweetheart deal” to “the ultra-right. {snip} “Miyares has complained about prosecutors allegedly picking and choosing which laws they enforce, then he made a deal refusing to respect the law he swore to uphold,” Ebbin said. The attorney general has criticized local prosecutors he considers insufficiently tough on criminal defendants and tried to give his office the power to prosecute some violent crimes.

Miyares said in a statement that the settlement was simply respecting the U.S. Supreme Court decision. “The Supreme Court made clear … that the government cannot compel people like Mr. Updegrove to speak contrary to their conscience,” Miyares said. “As Attorney General, my highest duty is to the federal Constitution.” A spokesperson added that Miyares has not given up his authority to enforce the Virginia Values Act generally. ... But Ebbin argued there was no reason to concede this case when a federal judge had already dismissed Updegrove’s lawsuit as lacking evidence that he needed protection from the law. That decision had been on appeal.

Updegrove “has never been approached by anyone seeking his photography services for a same-sex wedding,” Judge Claude M. Hilton wrote in 2021, and “never previously engaged in the type of speech that he claims is currently being chilled.” ... These are “made-up lawsuits” that “divide Virginians,” Ebbin said. ... In the U.S. Supreme Court case, there was also no indication that the plaintiff had been asked to do work for a same-sex couple. These and other cases brought by the group were pre-enforcement challenges, arguing anti-discrimination laws have a coercive effect on businesses that involve expressive, creative work. The U.S. Supreme Court said it was “more than enough” to raise First Amendment concerns that the website designer could face sanctions under Colorado’s anti-discrimination law.

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By Rachel Weiner
Rachel Weiner covers federal courts in Washington, D.C. and Richmond, Va. Twitter https://twitter.com/rachelweinerwp

By Justin Jouvenal
Justin Jouvenal covers courts and policing in Fairfax County and across the nation. He joined The Post in 2009. Twitter https://twitter.com/jjouvenal