Antigay Virginia Photographer Sues for Right to Discriminate

A photographer in Norfolk, Va., has filed a preemptive lawsuit against the state's new LGBTQ+ rights law, saying it would force him to go against his Christian beliefs by serving same-sex weddings.

The Virginia Values Act, which bans discrimination based on sexual orientation and gender identity in housing, public and private employment, public accommodations, and access to credit, went into effect last Wednesday. The photographer's business would be considered a public accommodation.

The photographer, Chris Herring, filed suit Tuesday in federal court in Virginia, one day before the law came into force, The Virginian-Pilot reports. He's represented by the Alliance Defending Freedom, which has served numerous anti-LGBTQ+ clients, including the Colorado baker who won a qualified victory at the U.S. Supreme Court in 2018.

Herring "faces an impossible choice: violate the law and risk bankruptcy, promote views against his faith, or close down," the suit states. "And this was exactly what Virginia officials wanted for those who hold Chris' religious beliefs about marriage. Legislators who passed Virginia's law called views like Chris' 'bigotry' and sought to punish them with 'unlimited punitive damages' to remove them from the public square."

He serves LGBTQ+ clients for his brand and adventure shoots but says photographing same-sex couples' weddings would make a statement against his beliefs, therefore violating his First Amendment rights, ADF Senior Legal Counsel Kate Anderson told The Virginian-Pilot. Herring wants to post a message on his website saying he would not serve these weddings but fears he would be fined by the state, she said.

The proposed message would read, "Because of my faith, I can only photograph consistent with who I am and what I believe. I can only photograph what celebrates God's creation and design for the world. I won't photograph ceremonies that contradict God's design for marriage as something between one man and one woman." The law prohibits the publication of any statement of intention to discriminate, but it's unclear how it would be enforced, the Virginia paper notes. The text of the law does not specify fines but says people who believe they've suffered discrimination can seek redress through a Division of Human Rights in the state's Department of Law.

"The issue is how laws like this have been applied," Anderson said. The Arizona Supreme Court, for instance, last year ruled that a stationery shop in Phoenix could refuse to create custom invitations for same-sex weddings without violating the city's LGBTQ+ rights ordinance. The shop had never received an order from a same-sex couple but, like Herring, challenged the law preemptively. ADF also represented the shop.

In the Colorado case, Masterpiece Cakeshop owner Jack Phillips had refused to create a custom wedding cake for a same-sex couple. The Colorado Civil Rights Commission ruled that Phillips had violated the state's antidiscrimination law, but the U.S. Supreme Court vacated that ruling on the basis that the commission had shown insufficient respect for Phillips's religious beliefs. However, the high court did not establish a right to discriminate.

Virginia Attorney General Mark Herring (no relation to the photographer) is reviewing the lawsuit and will respond in court, spokeswoman Charlotte Gomer told The Virginian-Pilot. "Attorney General Herring believes that every Virginian has the right to be safe and free from discrimination no matter what they look like, where they come from, or who they love," Gomer said. "LGBT Virginians are finally protected from housing and employment discrimination under Virginia law and Attorney General Herring looks forward to defending the Virginia Values Act in court against these attacks."