Nessel joins coalition of AGs to uphold Virginia's anti-discrimination law

Michigan Attorney General Dana Nessel joined a coalition of 20 attorneys general in filing a brief in support of the constitutionality of Virginia’s anti-discrimination law.

The amicus brief was filed last Friday, August 27, with the U.S. Court of Appeals for the Fourth Circuit in the case of Updegrove v. Herring. Specifically, the plaintiffs, Robert Updegrove and Loudoun Multi-Images LLC, d/b/a Bob Updegrove Photography, claim they intend to advertise that they won’t offer wedding photography services for LGBTQ+ couples. The plaintiffs claim Virginia’s public accommodations law, amended last year to protect against discrimination on the basis of sexual orientation, violates their First Amendment rights to freedom of speech and free exercise of religion. 

The filed brief supports Virginia’s defense of the law in the plaintiffs’ appeal following the District Court’s dismissal of the lawsuit. 

“Turning away customers based on their sexual orientation is clear discrimination,” Nessel said. “I stand with my colleagues in filing this brief in support of Virginia’s expanded public accommodations law. No one should ever be barred from accessing goods and services simply for whom they love. Allowing such discrimination would set a dangerous precedent.”

In the brief, the attorneys general argue that states across the country have enacted laws to prohibit discrimination against LGBTQ+ people in places of public accommodations to prevent severe economic, personal, and social harm. Discrimination in public accommodation “denies equal access to important goods and services and, by segregating the market, has a well-established ‘substantial and harmful effect’ on the economy.”

According to the brief, a majority of Americans – 189 million – now live in communities that expressly prohibit places of public accommodation from discriminating on the basis of sexual orientation. Virginia’s public accommodations law, which has been in effect since July 2020, forbids sexual-orientation discrimination by businesses engaged in sales to the public, and forbids such businesses from posting a notice indicating their intention to refuse service on the basis of sexual orientation.

The brief further argues that prejudice “on account of sexual orientation ‘has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering’ and fostered a general climate of hostility and distrust, leading in some instances to physical violence.’” The brief points out that the Supreme Court has long held that discrimination in public accommodations is a “unique evil.”

The attorneys general argue that the First Amendment does not allow a business to exclude customers in violation of anti-discrimination laws. It also does not protect the speech in advertisements that gives notice that places of public accommodations will refuse service on the basis of a protected characteristic.

Finally, the attorneys general call on the court to follow the Supreme Court’s instruction to ensure that LGBTQ+ individuals are not subjected to “indignities when they seek goods and services in an open market.” The attorneys general argue that permitting businesses like the plaintiffs’ to discriminate on supposed First Amendment grounds would fundamentally undermine our country’s anti-discrimination laws, including with respect to discrimination on the basis of race, sex, and religion, as well as sexual orientation.

Joining Nessel in filing the amicus brief are the attorneys general of California, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Vermont.