A Christian wedding photographer and blogger in Virginia filed suit against Attorney General Mark Herring (D-Va.), seeking to prevent the enforcement of a new non-discrimination law that its Democrat supporters admitted was intended to be “punitive” against those who decline to celebrate same-sex weddings. The law presents the photographer with an impossible choice: violate his conscience, close down his business, or face a $50,000 fine for the first offense and $100,000 fines for each later offense.
Chris Herring, owner of Chris Herring Photography, filed the pre-enforcement lawsuit on Tuesday before the law came into effect on Wednesday. The lawsuit claims the Virginia Values Act — which Gov. Ralph Northam (D-Va.) signed on the Saturday before Easter during a pandemic — violates Chris Herring’s rights to free speech, free association, freedom of the press, religious liberty, and the Constitution’s ban on a government establishment of religion.
“It isn’t the state’s job to tell me what I must capture on film or publish on my website,” Chris Herring said in a statement on the lawsuit. “My religious beliefs influence every aspect of my life, including the stories I tell through my photography. If you’re looking for someone to photograph a red-light district or promote drug tourism, I’m not your guy. Now Virginia is trying to intimidate creative professionals like me to change some of my other religious beliefs.”
Chris Herring insisted that he does not discriminate against people based on their sexual orientation — he only refuses to celebrate same-sex weddings because they violate his beliefs on marriage, which God defines as a union between one man and one woman. If a gay man asked him to photograph an opposite-sex wedding, he would do so. If a straight man asked him to photograph a same-sex wedding, he would refuse. The wedding, not the sexual orientation of a client, is the point at issue.
“I happily work with and serve all customers, but I can’t and won’t let the state force me to express messages that contradict my beliefs,” the photographer insisted.
“Artists shouldn’t be censored, fined, or forced out of business simply for disagreeing with the government’s preferred views,” Jonathan Scruggs, senior counsel at Alliance Defending Freedom (ADF), the law firm representing Chris Herring, said in a statement. “Because of Virginia’s new law, Chris faces an impossible choice: violate the law and risk bankruptcy, promote views against his faith, or close down.”
“No matter one’s views on marriage, we all lose when bureaucrats can force citizens to participate in religious ceremonies they oppose, speak messages they disagree with, and stay silent about beliefs they hold dear,” Scruggs added.
Yet AG Mark Herring has repeatedly insisted that if wedding photographers like Chris Herring refuse to help celebrate same-sex weddings, they are discriminating on the basis of sexual orientation. Mark Herring said as much in amicus curiae briefs in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and in Telescope Media Group v. Lindsey (2019), two cases on the issue of whether or not bakers and photographers have the free speech and religious freedom right to refuse to serve same-sex weddings.
Interestingly, Mark Herring argued that non-discrimination laws like the Virginia Values Act would allow a cakeshop to decline to create custom cakes with “offensive messages about LGBTQ people” based on its non-religious objections but as prohibiting a cakeshop from declining to create a custom wedding cake celebrating a same-sex wedding based on its religious objections.
“This distinction treats religious objections to creating expressive works worse than non-religious objections to creating expressive works,” Chris Herring’s lawsuit alleges.
The lawsuit notes that the Virginia Values Act requires the Virginia Human Rights Division to investigate any claims of discrimination for a period as long as six months. In cases where the division finds discrimination, the attorney general can sue and apply a civil penalty “not exceeding $50,000 for a first violation” and “not exceeding $100,000 for any subsequent violation.” The lawsuits would also require defendants to pay “compensatory damages and punitive damages” as well as attorney fees.
“The punitive damages are designed to be especially severe,” Chris Herring’s lawsuit alleges. The lawsuit quotes Delegate Marcus Simon (D-53), who said, “I’ve actually looked at the [uncapped punitive damages in Virginia’s law] language … and I think it’s actually doing exactly what we intended for it to do. If you don’t want to be subject to unlimited punitive damages, don’t discriminate on the basis of sexual orientation. … I mean, this wasn’t meant to be a non-punitive bill.”
“As Delegate Simon indicated, the Act is intended to force Chris and people with beliefs like him to choose between either being punished for his religious convictions and risking bankruptcy or abandoning their business altogether,” the lawsuit alleges.
Chris Herring’s lawsuit quotes other Democrat delegates who supported the Virginia Values Act and expressed hostility to those who view marriage as between one man and one woman.
When considering SB 41 2016, a bill that would have allowed religious persons to object to solemnizing a marriage “in accordance with a sincerely held religious belief … that marriage is or should be recognized as the union of one man and one woman,” State Sen. Adam Ebbin (D-30) condemned the bill, claiming it “carves out a space for bigotry cloaked under the guise of religious freedom.” Ebbin was the chief patron of the Virginia Values Act in the Senate.
During a debate in the Virginia House of Delegatees over an amendment to the Virginia Values Act that would have excluded “a religious corporation, association, society, or unincorporated house of worship” from the definition of public accommodations, Delegate Joshua Cole (D-28) asserted his view of Christianity as the correct one in opposing the amendment:
I understand we have theological disagreements and we have theological beliefs of what we’re supposed to carry out, but if you are a public organization, your doors are supposed to be open to everyone in the public. Now I don’t know what type of Christianity you come from, but the type of Christianity I come from, the Apostle Paul said “Try with everything within you to live peaceably with all men.”
…The Bible also says “And they shall know us by our love.” What are we doing with our witness when we allow organizations to say just because we have St. Peter’s behind it, or Christian behind it, … that we don’t like you so don’t come over here…. Madame Speaker as an ending thought, I will let you know that in Jesus’ day the sinner was not his enemy. It was the church.
These and other Virginia Democrats showed the very same kind of hostility to conservative religious beliefs about marriage that members of the Colorado Civil Rights Commission showed toward Christian baker Jack Phillips, who refused to bake a cake celebrating a same-sex wedding. In that case, the Supreme Court ruled that the commission had violated Phillips’ right to the free exercise of religion by subjecting him to “religious hostility” in its application of the law.
Chris Herring’s lawsuit is a “pre-enforcement challenge.” It aims to convince the court to block Virginia from applying its “punitive” law. Last year, the U.S. Court of Appeals for the 8th Circuit and the Arizona Supreme Court ruled in favor of filmmakers and artists who brought similar pre-enforcement challenges against laws like Virginia’s.
Chris Herring’s First Amendment rights should allow him to follow his conscience in his business. Since he believes that marriage is between one man and one woman, he should be free to photograph opposite-sex weddings without the government forcing him to lend his art to a celebration of same-sex weddings. Given the precedents in cases like this one, Chris Herring should succeed.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.