Legal settlement allows Virginia photographer to refuse capturing same-sex weddings

---

A Virginia photographer gained the right to refuse to take pictures of same-sex weddings following a settlement that the state committed to in a filing with the 4th U.S. Circuit Court of Appeals. A federal lawsuit brought by the photographer had challenged the state’s statute regarding discrimination.  

Key Players

Bob Updegrove, a Virginia-based photographer, sought to refuse capturing the weddings of same-sex couples because of his religious beliefs. 

The Alliance Defending Freedom (ADF), a Christian conservative nonprofit, filed the lawsuit on behalf of Updegrove. 

Further Details

In 2020, former Gov. Ralph Northam (D) signed the Virginia Values Act into law, which prohibited discrimination on the basis of sexual orientation, gender identity, and race, among other protected classes. Those who violated the law could be fined up to $50,000 or $100,000 for repeated acts of discrimination. 

At the time, Northam said it sent “a strong, clear message” that “Virginia is a place where all people are welcome to live, work, visit, and raise a family.”

Later that year, with the help of ADF attorneys, Updegrove filed a federal lawsuit to challenge the law, asserting that the act would force him to go against his religious beliefs and photograph same-sex weddings. Updegrove detailed his lawsuit in a Washington Post op-ed entitled “A new Virginia law is censoring artists like me.”

“Virginia legislators have decided that artists can no longer choose the content of their creations if they refuse to promote the state’s preferred views on certain subjects,” Updegrove wrote. “And my state has targeted people of faith more than anyone else.”

Jonathan Scruggs, senior counsel at the ADF, said that artists like Updegrove faced “an impossible choice” when it came to violating the law and promoting views against their faith. “The government cannot demand that artists create content that violates their deepest convictions,” he said. 

But in 2021, U.S. District Judge Claude M. Hilton, nominated by former President Ronald Reagan, dismissed the lawsuit, claiming it lacked evidence that Updegrove needed protection from the statute. According to Hilton, the photographer had “never been approached by anyone seeking his photography services for a same-sex wedding.” 

Shortly after, the ADF filed an appeal. 

In June 2023, the U.S. Supreme Court ruled on a similar case, 303 Creative LLC v. Elenis, holding that the First Amendment allowed certain businesses to refuse to work for same-sex couples. The case involved a Christian graphic artist from Colorado who did not want to design wedding websites for same-sex couples. 

In both Updegrove’s case and 303 Creative, the ADF argued that the work implicated was not just a service, but a form of personal expression subject to First Amendment protection.

Outcome 

Virginia settles Updegrove’s case applying 303 Creative v. Elenis

On Nov. 3, 2023, Updegrove and Virginia Attorney General Jason Miyares reached a settlement that permitted Updegrove to refuse to provide services for same-sex weddings. 

The parties agreed that Updegrove was not required “to offer or provide photography celebrating same-sex weddings” or prevented from explaining his position on his website. The settlement cites the precedent of 303 Creative, indicating that the First Amendment permits some businesses to refuse work for same-sex couples. 

ADF legal counsel Johannes Widmalm-Delphonse said Updegrove’s victory underscored “how the 303 Creative decision will protect countless Americans from government censorship and coercion. The U.S. Constitution protects his freedom to express his views as he continues to serve clients of all backgrounds and beliefs.”

Virginia officials divided, legal implications unclear

Miyares stated that the settlement simply respected the U.S. Supreme Court decision “that the government cannot compel people like Mr. Updegrove to speak contrary to their conscience.”

However, state Sen. Adam Ebbin (D), whose district encompasses parts of Alexandria and Arlington, in northern Virginia, said there was no reason for Virginia officials to settle the case, especially in light of the previous ruling by the circuit court. He dismissed Updegrove’s case and other pre-enforcement challenges, such as 303 Creative, as “made-up lawsuits” that are meant to be divisive. 

Going forward, many legal scholars were speculating on how the lower courts might choose to apply the precedent of 303 Creative to additional cases. Nelson Tebbe, a professor at Cornell Law School, stated that “303 Creative will be enforced in cases concerning wedding photographers and other vendors as well.”