He Refuses to Take Photos of a Gay Wedding. Virginia Says He’s Allowed.

The Washington Post / Rachel Weiner, Justin Jouvenal

11:48 JST, November 9, 2023

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.

Updegrove’s case shows how the high court’s ruling on free speech will affect anti-discrimination laws throughout the country and how Virginia continues to be a hub for conservative pushback to progressive policies. In both Updegrove’s and the 303 Creative case, the Alliance Defending Freedom, a Christian conservative nonprofit, argued that the work involved was not just a service offered to the public but personal expression.

“Like any other artist, I want to create photography that I believe in,” Updegrove wrote in 2020 Washington Post op-ed after filing his lawsuit. “I believe that marriage is meant to be a unique and sacrificial relationship between one man and one woman that points people to Jesus Christ’s sacrificial covenant with the church.”

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 ultraright.”

In 2021 Northam was replaced by Republican Gov. Glenn Youngkin, who has rolled back protections for trans students in ways civil rights advocates said violate the legislation.

“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.

But the decision was also rooted in the details of that case, in which the plaintiff said each website would be customized to express her personal views and a lower court accepted that the websites were “pure speech.” Unlike Virginia’s law, Colorado’s anti-discrimination law that had been enforced, in another case that ended up before the U.S. Supreme Court.

“303 Creative relied heavily on factual stipulations – agreements between the parties – that were specific to the case,” said Nelson Tebbe, a professor at Cornell Law School who studies religion and free speech. For that reason, it’s “a matter of debate among scholars” how broadly lower courts will apply the ruling.

“My own judgment is that 303 Creative will be enforced in cases concerning wedding photographers and other vendors as well,” he said.

Along with sexual orientation and gender identity, the Virginia Values Act bars discrimination “on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, or status as a veteran.” Violators can be fined $50,000, or twice that for repeated acts of discrimination.

A Post investigation found that several vendors represented by ADF had done little or no wedding work before or after their suits for the right to refuse same-sex couples. Updegrove has photographed weddings for many years, along with conservative political events; he said in court filings he attends the same church as an ADF founder. When the group began representing him, it dropped a similar case involving a man who had incorporated a photography business less than a month earlier. That plaintiff has since moved to a different state and works for a tech company.

“We commend Attorney General Miyares and his office for agreeing that state officials cannot punish Bob for exercising his First Amendment rights,” ADF Legal Counsel Johannes Widmalm-Delphonse said.