ACLU Amicus Brief in Updegrove v. Herring

USCA4 Appeal: 21-1506 Doc: 35-1 Filed: 08/27/2021 Pg: 1 of 33 Total Pages:(1 of 36)
No. 21-1506
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
ROBERT UPDEGROVE,
LOUDOUN MULTI-IMAGES, LLC, d/b/a Bob Updegrove Photography,
Plaintiffs-Appellants
v.
MARK R. HERRING, in his official capacity as Virginia Attorney General;

R. THOMAS PAYNE, II, in his official capacity as
Director of the Virginia Division of Human Rights and Fair Housing,
Defendants-Appellees.
On Appeal from the United States District Court

for the Eastern District of Virginia
Alexandria Division
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE
Eden Heilman Lindsey Kaley

Counsel of Record Ricca Prasad
AMERICAN CIVIL LIBERTIES UNION AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF VIRGINIA, INC. FOUNDATION
701 E. Franklin Street, Suite 1412 125 Broad Street, 18th Floor
Richmond, Virginia 23219 New York, NY 10004
Phone: (804) 644-8080 Phone: (212) 549-2500
eheilman@acluva.org lkaley@aclu.org
rprasad@aclu.org
Counsel for Amici Curiae

TABLE OF CONTENTS
STATEMENT OF COMPLIANCE WITH RULE 29(a) .....................................1
STATEMENT OF AMICI CURIAE .......................................................................1
SUMMARY OF ARGUMENT ...............................................................................1

ARGUMENT ............................................................................................................5
I. REFUSING TO PROVIDE PHOTOGRAPHY SERVICES THAT

ARE OFFERED TO THE PUBLIC AT LARGE TO SAME-SEX
COUPLES IS DISCRIMINATION BASED ON SEXUAL
ORIENTATION AND VIOLATES VIRGINIA’S LAW. .........................5
II. THE FREE SPEECH CLAUSE DOES NOT AUTHORIZE A
BUSINESS TO ENGAGE IN DISCRIMINATION PROHIBITED
BY A REGULATION OF CONDUCT THAT INCIDENTALLY
AFFECTS EXPRESSION. ...........................................................................6
A. Virginia’s Law Should Receive Minimal First Amendment Scrutiny
Because It Regulates Commercial Conduct and Affects Expression
Only Incidentally. .......................................................................................6
B. Any “Compelled Expression” Is Incidental to the Accommodation

Clause’s Regulation of the Conduct of Sales and Does Not Alter the
First Amendment Analysis. ......................................................................10
C. The Free Speech Clause Does Not Protect a Public Accommodation’s

Right to Publish Its Unlawful Policy of Discrimination. .........................15
III. VIRGINIA’S LAW SATISFIES EVEN STRICT SCRUTINY.............18
A. Virginia Has a Compelling Interest in Eradicating Invidious

Discrimination. .........................................................................................18
B. Uniform Enforcement of Virginia’s Law Is the Least Restrictive

Means for Furthering the State’s Compelling Interest. ............................22
CONCLUSION.......................................................................................................24
CERTIFICATE OF COMPLIANCE ..................................................................25
ii
CERTIFICATE OF SERVICE ............................................................................26
iii
TABLE OF AUTHORITIES
Cases
303 Creative LLC v. Elenis,

No. 19-1413, 2021 WL 3157635 (10th Cir. July 26, 2021) ......................... passim
Associated Press v. NLRB,
301 U.S. 103 (1937) ................................................................................................8
Associated Press v. United States,

326 U.S. 1 (1945) ....................................................................................................8
Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987) ..............................................................................................15
Brush & Nib Studio, LC v. City of Phx.,

448 P.3d 890 (Ariz. 2019) ............................................................................ passim
Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ..............................................................................................18
Chelsey Nelson Photography LLC v. Louisville/Jefferson City Metro Gov’t,

479 F. Supp. 3d 543 (W.D. Ky. 2020). .............................................. 11, 13, 19, 21
Christian Legal Soc’y v. Martinez,

561 U.S. 661 (2010) ..............................................................................................15
Elane Photography, LLC v. Willock,
309 P.3d 53 (N.M. 2013) .............................................................................. passim
Emilee Carpenter, LLC v. James,
No. 6:21-cv-06303 (W.D.N.Y. Apr. 6, 2021).......................................................21
Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144 (2017) ..........................................................................................14
Fulton v. City of Phila.,

141 S. Ct. 1868 (2021) ..........................................................................................22
Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ................................................................................................7
iv
Gifford v. McCarthy,
23 N.Y.S.3d 422 (N.Y. App. Div. 2016) ..............................................................21
Heart of Atlanta Motel, Inc. v. U.S.,
379 U.S. 241 (1964) ....................................................................................... 19, 20
Heckler v. Mathews,
465 U.S. 728 (1984) ..............................................................................................20
Hishon v. King & Spalding,

467 U.S. 69 (1984) ..............................................................................................3, 9
Hunt v. Nuth,
57 F.3d 1327 (4th Cir. 1995) ..................................................................................3
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.,

515 U.S. 557 (1995) ................................................................................... 2, 12, 15
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ..........................................................................................12
Katzenbach v. McClung,
379 U.S. 294 (1964) ...............................................................................................3
Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) ................................................................................................9
Madsen v. Women’s Health Ctr.,
512 U.S. 753 (1994) ..............................................................................................17
Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n,
138 S. Ct. 1719 (2018). ................................................................................. passim
Messenger v. State,
41 N.W. 638 (Neb. 1889) .......................................................................................5
Miami Herald Publ’g Co. v. Tornillo,

418 U.S. 241 (1974) ..........................................................................................8, 13
Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue,

460 U.S. 575 (1983) ................................................................................................7
v
Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) ................................................................................................3
Norwood v. Harrison,
413 U.S. 455 (1973) ................................................................................................8
Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) ................................................................................................7
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal.,

475 U.S. 1 (1986) ..................................................................................................13
Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rel.,

413 U.S. 376 (1973) ..............................................................................................16
R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................................................................................8
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ..............................................................................................16
Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781 (1988) ..............................................................................................22
Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ....................................................................................... 17, 18
Romer v. Evans,
517 U.S. 620 (1996) ................................................................................................2
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) ..............................................................................................17
Rumsfeld v. Forum for Acad. & Institutional Rts., Inc.,
547 U.S. 47 (2006) ................................................................................... 10, 14, 16
State v. Arlene’s Flowers, Inc.,

441 P.3d 1203 (Wash. 2019) ................................................................................21
Swanner v. Anchorage Equal Rts. Comm’n,

874 P.2d 274 (Alaska 1994) .......................................................................... 19, 23
vi
Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) ........................................................................ passim
United States v. Burke,
504 U.S. 229 (1992) ..............................................................................................23
United States v. O’Brien,

391 U.S. 367 (1968) ................................................................................................7
Washington Post v. McManus,

944 F.3d 506 (4th Cir. 2019) ................................................................................12
Wisconsin v. Mitchell,
508 U.S. 476 (1993) ..............................................................................................15
Wooley v. Maynard,
430 U.S. 705 (1977) ..............................................................................................12
Statutes
42 U.S.C. § 3604(c) (1988) ......................................................................................16

Va. Code § 2.2-3905(A)...........................................................................................22
Va. Code Ann. § 2.2-3904(B) ................................................................................2, 5
vii
STATEMENT OF COMPLIANCE WITH RULE 29(a)
Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 29(a)(4)(E), the
American Civil Liberties Union (“ACLU”) and the ACLU of Virginia (together,
“Amici Curiae”) declare that neither party’s counsel authored any part of this brief,
and neither party in this case or other third-party contributed money to fund the
preparation or submission of this brief. Pursuant to FRAP 29(a)(2), Amici Curiae
declare that this brief is filed with the consent of both parties.
STATEMENT OF AMICI CURIAE
The ACLU is a nationwide, nonprofit, nonpartisan organization with
approximately two million members dedicated to defending the principles of
liberty and equality embodied in the Constitution. The ACLU of Virginia is one of
the ACLU’s statewide affiliates with approximately 28,000 members. As
organizations that advocate for First Amendment liberties as well as equal rights
for lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people, the ACLU,
the ACLU of Virginia, and their members have a strong interest in the application
of proper standards when evaluating constitutional challenges to civil rights laws.
SUMMARY OF ARGUMENT
Plaintiffs Loudoun Multi-Images LLC and Robert Updegrove (together, “the
Photography Studio” or “Appellants”) seek a constitutional right to operate a
business open to the public that denies equal service to same-sex couples, in
1
violation of the Virginia Human Rights Act (“Virginia’s law” or “the law”). Va.
Code Ann. § 2.2-3904(B). Like other public accommodation laws, Virginia’s law
bars businesses that are open to the public from refusing service to customers
based on certain aspects of the customer’s identity—including, in Virginia, their
sexual orientation and gender identity. Id. (the “Accommodation Clause”). The
statute also prohibits such businesses from displaying a notice that the “services of
any such place shall be refused, withheld from, or denied to any individual on the
basis of” a protected characteristic. Id. (the “Publication Clause”). Such laws help
ensure that LGBTQ individuals have equal opportunity to participate in the
“transactions and endeavors that constitute ordinary civic life in a free society.”
Romer v. Evans, 517 U.S. 620, 631 (1996).
Virginia unquestionably has the authority to prohibit businesses within its
borders from discriminating against LGBTQ people in the sales of goods and
services to the general public. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 572 (1995). The Photography Studio argues, however, that
because the services it sells are “expressive” and because Mr. Updegrove objects to
marriage for same-sex couples, the First Amendment entitles the Photography
Studio to discriminate based on sexual orientation. The Photography Studio also
seeks a right to post on its website, and distribute to prospective customers, a
2
notice proclaiming that it will not provide the same services to same-sex couples in
violation of Virginia law.1
This is not the first time in our history when a business offering its services
to the general public has sought to avoid an antidiscrimination law by invoking the
First Amendment. The Supreme Court has never accepted such arguments. See
Hishon v. King & Spalding, 467 U.S. 69, 78 (1984); Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402 n.5 (1968) (citing Katzenbach v. McClung, 379
U.S. 294 (1964)).
Nor can businesses evade generally applicable antidiscrimination laws and
trigger heightened scrutiny by characterizing their services as “expressive
conduct.” Virginia’s law is content- and viewpoint-neutral; it does not restrain or
alter the exchange of ideas; and it does not compel businesses to speak a state-
selected message. The implications of the Photography Studio’s arguments are far-
reaching. If the Free Speech Clause were to bar a state from applying an
1
Before the district court, the Photography Studio argued that Virginia’s law
violates the Religion Clauses in addition to the Free Speech Clause of the U.S.
Constitution, and Amici Curiae opposed both arguments. However, since the
Photography Studio failed to raise its claims for violations of the Religion Clauses
in its opening brief, we address only the free speech argument, and the
Photography Studio should not be able to revive its Religion Clause arguments
during this appeal. See, e.g., Hunt v. Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995)
(“[A]ppellate courts generally will not address new arguments raised in a reply
brief because it would be unfair to the appellee and would risk an improvident or
ill-advised opinion on the legal issues raised.”).
3
antidiscrimination law to the provision of wedding photography because it
involves expression, then photography companies could refuse to serve interracial
or interfaith couples, women, Muslims, Black people, or any other group the
company’s owner objects to serving. Brush & Nib Studio, LC v. City of Phx.
(“B&N”), 448 P.3d 890, 938–39 (Ariz. 2019) (Timmer, V.C.J., dissenting). And
under the Photography Studio’s proposed rule, because numerous sellers provide
goods or services that involve expression (including stationers, printers, and other
producers of custom products), a wide range of businesses could claim a First
Amendment exemption from generally applicable regulations of commercial
conduct. See 303 Creative LLC v. Elenis, No. 19-1413, 2021 WL 3157635, *11
(10th Cir. July 26, 2021). Indeed, “unique goods and services are where public
accommodation laws are most necessary to ensuring equal access.” Id.
Moreover, even if intermediate or strict scrutiny applied to the Photography
Studio’s free speech claim, applying Virginia’s law to the Photography Studio’s
provision of commercial services would still be constitutional. Virginia’s law
furthers its compelling interest in eradicating invidious discrimination and is the
least restrictive means of achieving that goal. See 303 Creative, 2021 WL
3157635, at *9–12. As the Supreme Court of Nebraska explained in one of the
earliest public accommodation decisions, a barber opening a shop to the public
cannot say “You are a slave, or a son of a slave; therefore I will not shave you.”
4
Messenger v. State, 41 N.W. 638, 639 (Neb. 1889) (internal quotation marks
omitted). To recognize the Photography Studio’s asserted First Amendment
objection would run counter to the basic principle, reflected in over a century of
public accommodation laws, that all people should be able to receive equal service
in American commercial life.
ARGUMENT
I. REFUSING TO PROVIDE PHOTOGRAPHY SERVICES THAT ARE

OFFERED TO THE PUBLIC AT LARGE TO SAME-SEX COUPLES
IS DISCRIMINATION BASED ON SEXUAL ORIENTATION AND
VIOLATES VIRGINIA’S LAW.
Although framed as a constitutional challenge to the law, the Photography
Studio’s brief avows that its proposed course of conduct is not discriminatory. The
Photography Studio argues its refusal is not based on sexual orientation because it
will provide other services to same-sex couples; it just will not photograph their
weddings. Appellants’ Br. 5, 52. But Virginia’s law—like other public
accommodation laws—does not merely prohibit a complete denial of all services
to a customer. Rather, the law prohibits businesses from denying “any of the
accommodations, advantages, facilities, services, or privileges made available” to
the general public. Va. Code Ann. § 2.2-3904(B) (emphasis added). As the
Supreme Court of New Mexico explained in a virtually identical case, “if a
restaurant offers a full menu to male customers, it may not refuse to serve entrees
5
to women, even if it will serve them appetizers.” Elane Photography, LLC v.
Willock, 309 P.3d 53, 62 (N.M. 2013).
The Photography Studio objects to providing a service to an entire class of
customers: same-sex couples seeking photography services for their weddings. The
Photography Studio asserts that it is denying services based on the message of a
same-sex couples’ wedding, but the only so-called message is the identity of the
couple being served. If a business needs to know who the service is for to decide
whether it will provide those services, that is identity-based discrimination. A
company refusing to provide wedding photography for interracial or Jewish
couples would be discriminating based on race or religion, even if the company
said its refusal was because it disapproved of those unions. See Telescope Media
Grp. v. Lucero (“TMG”), 936 F.3d 740, 769 (8th Cir. 2019) (Kelly, J., concurring
in part and dissenting in part); B&N, 448 P.3d at 938 (Timmer, V.C.J., dissenting);
Elane Photography, 309 P.3d at 78 (Bosson, J., specially concurring).
II. THE FREE SPEECH CLAUSE DOES NOT AUTHORIZE A

BUSINESS TO ENGAGE IN DISCRIMINATION PROHIBITED BY A
REGULATION OF CONDUCT THAT INCIDENTALLY AFFECTS
EXPRESSION.
A. Virginia’s Law Should Receive Minimal First Amendment

Scrutiny Because It Regulates Commercial Conduct and Affects
Expression Only Incidentally.
When confronted with First Amendment challenges to neutral laws that
6
regulate commercial conduct and affect speech only incidentally, the Supreme
Court has applied minimal scrutiny and upheld the law.2 “[I]t has never been
deemed an abridgement of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or carried out
by means of language, either spoken, written, or printed.” Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 502 (1949); see also Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 456 (1978). The First Amendment is not infringed when the
government enforces a generally applicable regulation of commercial conduct
against an “expressive” business. Even newspaper publishers, whose very product
is protected speech, can be subject “to generally applicable economic regulations”
without implicating the First Amendment. Minneapolis Star & Trib. Co. v. Minn.
Comm’r of Revenue, 460 U.S. 575, 581 (1983). “The fact that the publisher
handles news while others handle food does not . . . afford the publisher a peculiar
constitutional sanctuary in which he can with impunity violate laws regulating . . .
2
Even outside the context of commercial conduct, the Supreme Court has
applied the deferential test set forth in United States v. O’Brien, 391 U.S. 367
(1968), to determine whether a regulation of conduct that is “unrelated to the
suppression of free expression” violates the Constitution as applied to expressive
conduct. Id. at 377 (holding that regulations of conduct that have an incidental
effect on speech but are not aimed at expression need only further an important or
substantial government interest). Whether Virginia’s law is evaluated under the
commercial conduct cases or O’Brien, the result is the same: The law is a
permissible regulation of conduct that does not violate the First Amendment.
7
business practices.” Associated Press v. United States, 326 U.S. 1, 7 (1945);
Associated Press v. NLRB, 301 U.S. 103, 132 (1937). In contrast, a law specifically
requiring a newspaper to print particular content (or forbidding the same) directly
intrudes on the First Amendment. See, e.g., Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241, 258 (1974).
Accordingly, the Supreme Court has uniformly rejected businesses’
challenges to laws barring discrimination, even where those businesses dealt in
expressive goods or services. See TMG, 936 F.3d at 762–63 (Kelly, J., concurring
in part and dissenting in part) (citing Norwood v. Harrison, 413 U.S. 455, 469–70
(1973); Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719,
1723–24 (2018). “Where the government does not target conduct on the basis of its
expressive content, acts are not shielded from regulation merely because they
express a discriminatory idea or philosophy.” R.A.V. v. City of St. Paul, 505 U.S.
377, 390 (1992).3 For example, in Hishon, a law firm argued that applying Title
3
The Photography Studio resists this conclusion by comparing
discrimination against gay people who marry to other (hypothetical) business
interactions that do not actually implicate Virginia’s law. Appellants’ Br. 2. For
example, it is not true that Virginia’s law would compel a Muslim painter to
“create Easter banners for a Church” if it would not create such messages no
matter the identity of the requester. Similarly, the law could not be read to require
filmmakers who promote Democratic fundraisers to “promote Trump rallies,”
since the law does not protect against discrimination based on political party—and
even if it did, the filmmakers would not be required to promote Trump rallies if
they would refuse to publish such messages regardless of the requester’s identity.
8
VII to require it to consider a woman for partnership “would infringe [its]
constitutional rights of expression or association.” Hishon, 467 U.S. at 78.
Although a law firm’s work product is speech, see, e.g., Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 545 (2001), the Hishon Court dismissed the law firm’s
First Amendment defense, holding that there is “no constitutional right . . . to
discriminate.” 467 U.S. at 78. By contrast, a law specifically targeting a law firm’s
speech by, for example, preventing it from bringing cases that “challenge existing
welfare laws,” would “implicat[e] central First Amendment concerns.” See, e.g.,
Velazquez, 531 U.S. at 547–48.
The Photography Studio asserts that its photography and website are
protected speech. Appellants’ Br. 47. But Virginia’s law does not tell the company
how to frame its shots, edit its photographs, which moments to capture, or what to
include on its website; it regulates only the sale of the company’s services to the
public. Businesses that provide photography services to the public are just as
subject to generally applicable regulations of their commercial conduct as
newspapers and law firms. As the Supreme Court of New Mexico held, where “[a
photography studio] is a public accommodation, its provision of services can be
regulated” consistent with the First Amendment, “even though those services
include artistic and creative work.” Elane Photography, 309 P.3d at 66; see also id.
at 59, 71 (“[T]here is no precedent to suggest that First Amendment protections

9
allow such individuals or businesses to violate antidiscrimination laws.”). A video
game business, though producing artistic expressions, is not exempt from the Fair
Labor Standards Act’s prohibition against hiring child laborers. Nor is a tattoo
parlor exempt from a health code regulation governing the disposal of needles.
Such businesses are likewise not exempt from antidiscrimination laws.
Thus, even though the Photography Studio’s work product involves
creativity, that “hardly means” that any regulation of its business operations
“should be analyzed as one regulating [its] speech rather than conduct.” Rumsfeld
v. Forum for Acad. & Institutional Rts., Inc. (“FAIR”), 547 U.S. 47, 62 (2006). The
relevant question is not the nature of a business’s product, but whether Virginia’s
law targets expression or commercial conduct. Here, it prohibits conduct:
discrimination in the provision of goods and services. See id. (finding no
“abridgement of freedom of speech” when a law “make[s] a course of conduct
illegal” even where “the conduct was in part initiated, evidenced, or carried out by
means of language” (internal quotation marks omitted)).
B. Any “Compelled Expression” Is Incidental to the Accommodation

Clause’s Regulation of the Conduct of Sales and Does Not Alter
the First Amendment Analysis.
The Photography Studio’s objection that the Accommodation Clause of
Virginia’s law compels it to express a message with which it disagrees, Appellants’
Br. 46–50, does not alter the analysis. Virginia’s law requires no state-mandated
10
messages. Just as it would not impermissibly “compel speech” for a state to
prohibit a photography studio that offers corporate headshots to the public from
refusing to provide the same portraits for female employees that it provides for
male employees, Virginia does not impermissibly “compel speech” by requiring
that the Photography Studio offer same-sex couples the same services it offers
heterosexual couples. In arguing that the Accommodation Clause compels speech,
the Photography Studio ignores the unanimous decision in Elane Photography, 309
P.3d at 63–65, and relies instead on the sharply divided rulings in TMG, 936 F.3d
740, and B&N, 448 P.3d 890, and a district court ruling in Chelsey Nelson
Photography LLC v. Louisville/Jefferson City Metro Government, 479 F. Supp. 3d
543 (W.D. Ky. 2020). Appellants’ Br. 48. Those cases wrongly reasoned that
antidiscrimination laws as applied to commercial wedding services compelled
speech because they require the creation of wedding products for weddings of
same-sex couples. But the Accommodation Clause does not compel the creation of
any content, let alone content on a particular topic. As the Elane Photography court
correctly reasoned, a law like the Accommodation Clause “only mandates that if [a
photography studio] operates a business as a public accommodation, it cannot
11
discriminate against potential clients based on their sexual orientation.” 309 P.3d at
64.4
The Photography Studio’s reliance on Hurley, Appellants’ Br. 46–48, is also
misplaced. Hurley involved a “peculiar” application of a public accommodation
law to a privately organized and “inherent[ly] expressive[]” parade. 515 U.S. at
568, 572. The Court found this application impermissible because, instead of
regulating commercial conduct with only an incidental effect on expression, it
regulated nothing but expression—the content of the private parade sponsor’s
speech. Id. at 573. Here, the Photography Studio is a business providing services to
the public, not a private expressive association, and the conduct at issue—the sale
of goods and services—is commercial, not expressive. Hurley itself distinguished
the standard application of public accommodation laws to such businesses as
constitutional. See id. at 578. To expand Hurley’s holding would put courts in the
impossible “business of deciding which businesses are sufficiently artistic to
4
The Photography Studio also mistakenly relies on cases that do not apply
in this context. Appellants’ Br. 46–50. The Accommodation Clause does not
require expression of any state-chosen message. See Wooley v. Maynard, 430 U.S.
705, 715 (1977) (state message on license plates). It does not compel funding of
private speech. See Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,
138 S. Ct. 2448, 2460 (2018) (mandatory union subsidies). Additionally, the
Clause does not target particular kinds of speech. See Washington Post v.
McManus, 944 F.3d 506, 513 (4th Cir. 2019) (political speech targeted). And none
of the cases concern a challenge to a public accommodations law.
12
warrant exemptions from antidiscrimination laws.” Elane Photography, 309 P.3d
at 71. Such a result would be contrary to Supreme Court precedent and create an
unworkable standard.5
This case is also dramatically different from cases in which the Supreme
Court struck down content-based laws that required businesses to publish
particular messages. In Tornillo, 418 U.S. 241, a statute required newspapers that
published attacks on political candidates to allow those candidates free space for a
written reply in the newspaper itself. And in Pacific Gas & Electric Co. v. Public
Utilities Commission of California, 475 U.S. 1 (1986), a state agency ordered a
utility company to mail the newsletter of an environmental group to its customers.
Both the challenged laws favored opposing speech in a content-based way: The
right of reply was triggered by certain content, and the regulation imposed a
content-based penalty. Here, the Accommodation Clause requires just that
businesses open to the public offer the same goods and services to heterosexual
couples as they do to same-sex couples. Any effect on speech is entirely incidental
5
The decisions in TMG, 936 F.3d 740, B&N, 448 P.3d 890, and Nelson
Photography, 479 F. Supp. 3d 543, mistakenly invite courts to apply different First
Amendment standards based on the nature of the services sold. Such a standard is
neither consistent with precedent, nor susceptible to clear or uniform application.
Indeed, advocates for treating custom wedding cakes as protected speech failed to
articulate a workable test when questioned at oral argument, and the Supreme
Court declined to grant them such an exemption. See Transcript of Oral Argument
at 11–19, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111).
13
and does not compel the creation of content. See TMG, 936 F.3d at 772–73 (Kelly,
J., concurring in part and dissenting in part); B&N, 448 P.3d at 932 (Bales, J.,
dissenting); Elane Photography, 309 P.3d at 63–70.
Even where, unlike here, a law requires entities to speak particular words or
provide access for third-party speakers, the Supreme Court has rejected First
Amendment challenges if the law regulates conduct and any compulsion to speak
is incidental. In FAIR, a coalition of law schools argued that a law requiring them
to provide equal access both to military and non-military recruiters compelled them
to endorse military recruiters’ message of discrimination embodied in the Don’t
Ask, Don’t Tell policy; the schools particularly objected on First Amendment
grounds that they would have to send e-mails and post bulletin board messages on
those recruiters’ behalf. 547 U.S. at 52–54, 61–62. The Supreme Court rejected the
claim, reasoning that “[a]s a general matter, the [law] regulates conduct, not
speech. It affects what law schools must do—afford equal access to military
recruiters—not what they may or may not say.” Id. at 60; cf. Expressions Hair
Design v. Schneiderman, 137 S. Ct. 1144, 1150–51 (2017) (explaining that a law
requiring a restaurant to charge $10 for sandwiches would not unconstitutionally
compel speech despite the fact that the restaurant will “have to put ‘$10’ on its
menus or have its employees tell customers that price”).
14
C. The Free Speech Clause Does Not Protect a Public

Accommodation’s Right to Publish Its Unlawful Policy of
Discrimination.
“[F]ederal and state anti-discrimination laws” are “an example of a
permissible content-neutral regulation of conduct.” Wisconsin v. Mitchell, 508 U.S.
476, 487 (1993). Public accommodation laws do not “target speech or discriminate
on the basis of its content, the focal point of [their] prohibition being rather on the
act of discriminating against individuals in the provision of publicly available
goods, privileges, and services.” Hurley, 515 U.S. at 572; see also Christian Legal
Soc’y v. Martinez, 561 U.S. 661, 694–95 (2010) (antidiscrimination policies are
“textbook viewpoint neutral”); Bd. of Dirs. of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 549 (1987).
Seeking to avoid the minimal scrutiny the Supreme Court has applied to
generally applicable regulations of commercial conduct, the Photography Studio
argues that the Publication Clause of Virginia’s law is content- and viewpoint-
based because it tolerates only viewpoints that “celebrate” a same-sex couple’s
marriage by forbidding businesses from stating that they engage in discrimination
against same-sex couples. Appellants’ Br. 19, 51. But just as there is no
constitutional right to discriminate, there is no concomitant right to publish a
policy of discrimination. The Supreme Court has explicitly disapproved of
businesses posting signs saying “no goods or services will be sold if they will be
15
used for gay marriages,” as they would “impose a serious stigma on gay persons.”
Masterpiece Cakeshop, 138 S. Ct. at 1728–29. In FAIR, the Court explained that
the government “can prohibit employers from discriminating in hiring on the basis
of race. The fact that this will require an employer to take down a sign reading
‘White Applicants Only’ hardly means that the law should be analyzed as one
regulating the employer’s speech rather than conduct.” 547 U.S. at 62. Otherwise,
longstanding bans on discriminatory advertisements in employment, housing, and
public accommodations would have to be struck down on free speech grounds.
See, e.g., 42 U.S.C. § 3604(c) (1988); Pittsburgh Press Co. v. Pittsburgh Comm’n
on Hum. Rel., 413 U.S. 376, 389 (1973) (“Any First Amendment interest . . . is
altogether absent when the commercial activity itself is illegal and the restriction
on advertising is incidental to a valid limitation on economic activity.”).6
Further, the Publication Clause prohibits businesses from posting a policy
that they refuse to provide goods and services on grounds of customers’ sexual
6
The Photography Studio relies on Reed v. Town of Gilbert, 576 U.S. 155
(2015), to argue that the Publication Clause is content- and viewpoint-based.
Appellants’ Br. 51. However, the challenged law in Reed did not restrict signs for
illegal commercial activity, which is what is at issue here. To hold that such laws
are content- or viewpoint- based would swallow the rule laid out by Masterpiece
Cakeshop, FAIR, and Pittsburgh Press. Further, the challenged law categorized
signs based on their content (e.g. “political” or “ideological”), and the content of a
sign therefore determined the type of restrictions it was required to comply with.
576 U.S. at 164. In contrast, the Publication Clause does not alter its prohibition on
discriminatory policies depending on the category of services provided.
16
orientation, regardless of the business’ views on marriage or any other subject. See
Roberts v. U.S. Jaycees, 468 U.S. 609, 623–24 (1984); see also Madsen v.
Women’s Health Ctr., 512 U.S. 753, 763 (1994) (reasoning that “the fact that [an]
injunction cover[s] people with a particular viewpoint does not . . . render the
injunction content or viewpoint based”). The Publication Clause would also
prohibit a photography studio from posting a policy that it sells wedding
photography services to same-sex couples while denying those same services to
heterosexual couples. That is, the Publication Clause requires a company to
communicate that it will provide a service only to the extent that it would provide
the same service to similarly situated customers without regard to sexual
orientation (or race or religion).
The Photography Studio cites Rosenberger v. Rector & Visitors of
University of Virginia, 515 U.S. 819 (1995), to argue that the Publication Clause
prevents it from speaking certain messages based on content and viewpoint.
Appellants’ Br. 51. But in Rosenberger, a university impermissibly treated a
religious student group less favorably than secular student groups. 515 U.S. at 831.
The Publication Clause, however, treats all public accommodations equally,
regardless of the religious or secular nature of their viewpoints. Accordingly, the
Free Speech Clause does not authorize the Photography Studio to publish a notice
on its website of its intent to discriminate.

17
III. VIRGINIA’S LAW SATISFIES EVEN STRICT SCRUTINY.
Although, as shown above, application of Virginia’s law fails to trigger strict
or even intermediate scrutiny, application of the law would be constitutional under
either standard.
A. Virginia Has a Compelling Interest in Eradicating Invidious

Discrimination.
Antidiscrimination laws ensure “society the benefits of wide participation in
political, economic, and cultural life.” Roberts, 468 U.S. at 625; see also Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 733 (2014). In Masterpiece Cakeshop, the
Supreme Court affirmed that it is “unexceptional” that the “law can protect gay
persons, just as it can protect other classes of individuals, in acquiring whatever
products and services they choose on the same terms and conditions as are offered
to other members of the public.” Masterpiece Cakeshop, 138 S. Ct. at 1728. And
the Court has recognized repeatedly that the government has a compelling interest
in “eliminating discrimination and assuring . . . citizens equal access to publicly
available goods and services.” Roberts, 468 U.S. at 624. “[P]ublic accommodations
laws help ensure a free and open economy” and “the commercial nature of
Appellants’ business . . . provide[s] [Virginia] with a state interest absent when
regulating non-commercial activity.” 303 Creative, 2021 WL 3157635, at *10.
18
The harm of being refused service because of one’s identity is not erased just
because a customer might be able to obtain goods elsewhere. Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 250 (1964) (reasoning
antidiscrimination laws “vindicate the deprivation of personal dignity that surely
accompanies denials of equal access to public establishments” (internal quotation
marks omitted)). “The government views acts of discrimination as independent
social evils even if the prospective [customers] ultimately find” the goods or
services they sought. Swanner v. Anchorage Equal Rts. Comm’n, 874 P.2d 274,
283 (Alaska 1994).
Contrary to the Photography Studio’s argument, Appellants’ Br. 52,
Virginia’s compelling interest in eradicating discrimination in the provision of
goods and services justifies any attendant restrictions, even if they are
characterized as restrictions on speech. TMG, B&N, and Nelson Photography,
relied on by the Photography Studio, all recognize that the eradication of
discrimination in the provision of goods and services is a compelling government
interest.7 But by concluding that this interest does not apply in the context of
7
See TMG, 936 F.3d at 754 ( “ensuring . . . equal enjoyment of public
accommodations. . . is compelling” (internal quotation marks omitted)); Nelson
Photography, 479 F. Supp. 3d at 559 (ensuring same-sex couples “will not be
turned away” is “unquestionably compelling” (internal quotation marks omitted));
B&N, 448 P.3d at 914 (“ensuring equal access to publicly available goods and
services for all citizens, regardless of their status” is “compelling”).
19
businesses that provide services to create expressive products, those courts
misunderstood the nature of the harm addressed by laws against discrimination.
“The argument that victims of discrimination are free to go elsewhere carries little
force. Antidiscrimination laws . . . were passed to guarantee equal access to all
goods and services otherwise available to the public.” TMG, 936 F.3d at 777
(Kelly, J., concurring in part and dissenting in part); see also Heckler v. Mathews,
465 U.S. 728, 739–40 (1984) (“[D]iscrimination itself . . . can cause serious non-
economic injuries.”); Heart of Atlanta Motel, 379 U.S. at 292 (Goldberg, J.,
concurring) (“Discrimination is not simply dollars and cents, hamburgers and
movies; it is the humiliation, frustration, and embarrassment that a person must
surely feel when he is told that he is unacceptable as a member of the public . . .”
(internal quotation marks omitted)). Indeed, Virginia’s interest in protecting equal
access to services like those provided by the Photography Studio is even stronger
because the services are “unique art,” Appellants’ Br. 4, as that means they are
“inherently not fungible.” See 303 Creative, 2021 WL 3157635, at *10 (“LGBT
consumers may be able to obtain wedding[] . . . services from other businesses;
yet, LGBT consumers will never be able to obtain wedding-related services of the
same quality and nature as those that Appellants offer.”).
Further, if businesses like the Photography Studio are not required to comply
with Virginia’s law, same-sex couples will likely face discrimination in the
20
marketplace when they seek services. The scope of the problem of businesses
seeking a license to discriminate against same-sex couples in the provision of
wedding services is demonstrated by the many businesses in recent years seeking
court approval to do just that. See generally Masterpiece Cakeshop, 138 S. Ct.
1719; State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019); 303 Creative,
2021 WL 3157635; Nelson Photography, 479 F. Supp. 3d 543; B&N, 448 P.3d
890; Elane Photography, 309 P.3d 53; Complaint, Emilee Carpenter, LLC v.
James, No. 6:21-cv-06303 (W.D.N.Y. Apr. 6, 2021); Gifford v. McCarthy, 23
N.Y.S.3d 422 (N.Y. App. Div. 2016); see also TMG, No. 0:16-cv-04094, slip op.
at 6 (D. Minn. Apr. 21, 2021) (describing the case as “a smoke and mirrors case or
controversy from the beginning, likely conjured up by Plaintiffs to establish
binding First Amendment precedent rather than to allow them to craft wedding
videos, of which they have made exactly two”).
The Photography Studio also argues that Virginia's compelling interest in
ending discrimination does not justify applying Virginia’s law to it because its
refusal of wedding-related services to same-sex couples is not discriminatory.
Appellants’ Br. 52. However, refusing to offer services to same-sex couples on the
same basis as it does other clients is discrimination. See supra Part I. If the
Photography Studio will not provide wedding photography services to same-sex
couples, but will offer those same services to other clients, that is discrimination
21
under Virginia’s law.
Finally, contrary to the Photography Studio’s assertion, Virginia’s
compelling interest in eradicating discrimination in the commercial marketplace is
not negated by Virginia’s exemption in its regulations against discrimination in
employment for small-scale employers, which is distinct from its regulations for
public accommodations. Appellants’ Br. 52 (citing Va. Code § 2.2-3905(A)). How
the state tailors its laws as to other conduct does not call into question that its
interest in ending discrimination in public accommodations is of the most
compelling kind. To be clear, the question is not whether there is a compelling
governmental interest in denying the Photography Studio an exemption, see Fulton
v. City of Philadelphia, 141 S. Ct. 1868, 1881–82 (2021), because there are no
existing discretionary exemptions that are available to others that the state refused
to extend to the Photography Studio—and the Photography Studio does not point
to any. The question is only whether Virginia has a compelling interest in
eradicating discrimination, which it does.
B. Uniform Enforcement of Virginia’s Law Is the Least Restrictive

Means for Furthering the State’s Compelling Interest.
Because the most carefully tailored way to ensure equal treatment is to
prohibit discrimination, Virginia’s law is “precisely tailored” to achieve its interest.
See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 800 (1988). Every
22
instance of discrimination “causes grave harm to its victims.” United States v.
Burke, 504 U.S. 229, 238 (1992). Because of the harms associated with each
instance of invidious discrimination, there is simply no “numerical cutoff below
which the harm is insignificant.” Swanner, 874 P.2d at 282.
The Photography Studio also contends that Virginia’s law is not narrowly
tailored because Virginia could choose, as it alleges other jurisdictions have done,
to apply the law only to businesses that are “essential or non-expressive” or,
alternatively, to not apply to “individuals and small businesses that celebrate
weddings.” Appellants’ Br. 53. But Virginia’s law is tailored to Virginia’s interest,
which it achieves by applying the law to the extent that businesses offer goods and
services to the general public. “Excepting [the Photography Studio] from
[Virginia’s law] would necessarily relegate LGBT consumers to an inferior market
because [the Photography Studio’s] unique services are, by definition, unavailable
elsewhere . . . Thus, there are no less intrusive means of providing equal access to
those types of services.” 303 Creative, 2021 WL 3157635, at *10. And the
existence of unrelated exceptions, as described above, does not undermine the
compelling governmental interest in uniform enforcement of the laws here, where
there are no applicable exemptions.
23
Because it is narrowly tailored to serve a compelling interest in eradicating
discrimination in the commercial market, Virginia’s law satisfies any standard of
review, including strict scrutiny.
CONCLUSION
The district court’s decision should be affirmed.
Respectfully submitted,
/s/ Eden Heilman
Eden Heilman
Counsel of Record
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF VIRGINIA, INC.
701 E. Franklin Street, Suite 1412
Richmond, Virginia 23219
Phone: (804) 644-8080
eheilman@acluva.org
Lindsey Kaley
Ricca Prasad
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Phone: (212) 549-2500
lkaley@aclu.org
rprasad@aclu.org
Dated: August 27, 2021
24
CERTIFICATE OF COMPLIANCE
1. This brief complies with type-volume limits because, excluding the
parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure
statement, table of contents, table of citations, statement regarding oral argument,
signature block, certificates of counsel, addendum, attachments):
[x] this brief or other document contains 6,348 words.
[ ] this brief uses monospaced type and contains [state number of] lines.
2. This brief complies with the typeface and type style requirements
because:
[x] this brief or other document has been prepared in a proportionally spaced
typeface using Microsoft Word 2019 in 14-point Times New Roman.
[ ] this brief or other document has been prepared in a monospaced typeface
using [identify word processing program].
Dated: August 27, 2021 /s/ Eden Heilman

Eden Heilman
Counsel of Record
701 E. Franklin St., Ste 1412
Richmond, VA 23219
Phone: (804) 644-8080
eheilman@acluva.org
25
CERTIFICATE OF SERVICE
I certify that on August 27, 2021, I electronically filed the foregoing with the
Clerk of Court through the Court’s CM/ECF system. The participants in the case
are registered CM/ECF users and service will be accomplished through the
CM/ECF system.
/s/ Eden Heilman

Eden Heilman
Counsel of Record
701 E. Franklin St., Ste 1412
Richmond, VA 23219
Phone: (804) 644-8080
eheilman@acluva.org
26
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12/01/2019 SCC -1-

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-2-

ACLU Amicus Brief in Updegrove v. Herring

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USCA4 Appeal: 21-1506 Doc: 35-1 Filed: 08/27/2021 Pg: 1 of 33 Total Pages:(1 of 36)

UNITED STATES COURT OF APPEALS

MARK R. HERRING, in his official capacity as Virginia Attorney General;

On Appeal from the United States District Court

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND

Eden Heilman Lindsey Kaley

Counsel for Amici Curiae

STATEMENT OF AMICI CURIAE .......................................................................1

SUMMARY OF ARGUMENT ...............................................................................1

I. REFUSING TO PROVIDE PHOTOGRAPHY SERVICES THAT

B. Any “Compelled Expression” Is Incidental to the Accommodation

C. The Free Speech Clause Does Not Protect a Public Accommodation’s

III. VIRGINIA’S LAW SATISFIES EVEN STRICT SCRUTINY.............18

A. Virginia Has a Compelling Interest in Eradicating Invidious

B. Uniform Enforcement of Virginia’s Law Is the Least Restrictive

CERTIFICATE OF SERVICE ............................................................................26

303 Creative LLC v. Elenis,

Associated Press v. United States,

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

Brush & Nib Studio, LC v. City of Phx.,

Burwell v. Hobby Lobby Stores, Inc.,

Chelsey Nelson Photography LLC v. Louisville/Jefferson City Metro Gov’t,

Christian Legal Soc’y v. Martinez,

Expressions Hair Design v. Schneiderman,

Fulton v. City of Phila.,

Giboney v. Empire Storage & Ice Co.,

Hishon v. King & Spalding,

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos.,

Legal Servs. Corp. v. Velazquez,

Miami Herald Publ’g Co. v. Tornillo,

Minneapolis Star & Trib. Co. v. Minn. Comm’r of Revenue,

Newman v. Piggie Park Enters., Inc.,

Ohralik v. Ohio State Bar Ass’n,

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal.,

Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Rel.,

R.A.V. v. City of St. Paul,

Roberts v. U.S. Jaycees,

State v. Arlene’s Flowers, Inc.,

Swanner v. Anchorage Equal Rts. Comm’n,

Telescope Media Grp. v. Lucero,

United States v. O’Brien,

Washington Post v. McManus,

42 U.S.C. § 3604(c) (1988) ......................................................................................16

Va. Code Ann. § 2.2-3904(B) ................................................................................2, 5

STATEMENT OF COMPLIANCE WITH RULE 29(a)

Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 29(a)(4)(E), the

preparation or submission of this brief. Pursuant to FRAP 29(a)(2), Amici Curiae

STATEMENT OF AMICI CURIAE

The ACLU is a nationwide, nonprofit, nonpartisan organization with

approximately two million members dedicated to defending the principles of

the ACLU’s statewide affiliates with approximately 28,000 members. As

of proper standards when evaluating constitutional challenges to civil rights laws.

Plaintiffs Loudoun Multi-Images LLC and Robert Updegrove (together, “the

Photography Studio” or “Appellants”) seek a constitutional right to operate a

based on certain aspects of the customer’s identity—including, in Virginia, their

ensure that LGBTQ individuals have equal opportunity to participate in the

Romer v. Evans, 517 U.S. 620, 631 (1996).

Virginia unquestionably has the authority to prohibit businesses within its

Studio to discriminate based on sexual orientation. The Photography Studio also