Case 22-75, Document 129, 05/16/2022, 3315820, Page1 of 42
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`22-75
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`EMILEE CARPENTER, LLC, d/b/a Emilee Carpenter Photography, and
`EMILEE CARPENTER,
`
`
`
`Plaintiffs-Appellants,
`
`
`
`
`
`
`
`
`
`
`
`v.
`LETITIA JAMES, in her official capacity as Attorney General of New York;
`MARIA L. IMPERIAL, in her official capacity as the Acting Commissioner of
`the New York State Division of Human Rights; and WEEDEN WETMORE,
`in his official capacity as District Attorney of Chemung County,
`
`
`
`
`
`
`
`Defendants-Appellees.
`
`On Appeal from the United States District Court for the Western District
`of New York, Case No. 6:21-cv-6303, Hon. Frank P. Geraci, Jr.
`Brief in Support of Appellees and Affirmance of Amici Curiae
`Americans United for Separation of Church and State; ADL (Anti-
`Defamation League); Bend the Arc: A Jewish Partnership for
`Justice; Central Conference of American Rabbis; Covenant
`Network of Presbyterians; Global Justice Institute, Metropolitan
`Community Churches; Hindu American Foundation; Interfaith
`Alliance Foundation; Men of Reform Judaism; Muslim Advocates;
`Muslims for Progressive Values; The Sikh Coalition; Union for
`Reform Judaism; and Women of Reform Judaism
`RICHARD B. KATSKEE
`ALEX J. LUCHENITSER (Counsel of Record)
`ADRIANNE M. SPOTO
`KENNETH D. UPTON, JR.
`Americans United for Separation of Church and State
`1310 L Street NW, Suite 200
`Washington, DC 20005
`(202) 466-7306
`luchenitser@au.org
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`

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`Case 22-75, Document 129, 05/16/2022, 3315820, Page2 of 42
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`RULE 26.1 DISCLOSURE STATEMENT
`The amici are all nonprofit organizations that have no parent
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`corporations and are not owned in whole or in part by any publicly held
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`corporation.
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`i
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page3 of 42
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`TABLE OF CONTENTS
`
`Interests of the Amici Curiae ........................................................................ 1 
`Introduction and Summary of Argument ...................................................... 3 
`Argument ........................................................................................................ 4 
`I.  The Free Exercise Clause does not require the exemption that
`Carpenter seeks ...................................................................................... 4 
`A.  The public-accommodations law does not trigger strict
`scrutiny ............................................................................................ 4 
`B.  The public-accommodations law would satisfy even strict
`scrutiny .......................................................................................... 18 
`II.  New York’s public-accommodations law does not coerce
`Carpenter to participate in religious activity ...................................... 24 
`III.  Antidiscrimination laws protect religious freedom ............................. 27 
`Conclusion .................................................................................................... 32 
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`ii
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page4 of 42
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`Ashcroft v. ACLU,
`542 U.S. 656 (2004) ................................................................................. 21
`Battaglia v. Buffalo Niagara Introductions, Inc.,
`No. 10138581 (N.Y. Div. Hum. Rts. Jan. 28, 2012),
`https://on.ny.gov/39bB3im ......................................................................... 9
`Braunfeld v. Brown,
`366 U.S. 599 (1961) ................................................................................. 19
`Bray v. Alexandria Women’s Health Clinic,
`506 U.S. 263 (1993) ................................................................................. 22
`Catholic Charities of Diocese of Albany v. Serio,
`859 N.E.2d 459 (N.Y. 2006) ..................................................................... 12
`Catholic Charities of Sacramento v. Superior Court,
`85 P.3d 67 (Cal. 2004) ............................................................................. 12
`Central Rabbinical Congress of U.S. & Canada v. New York
`City Department of Health & Mental Hygiene,
`763 F.3d 183 (2d Cir. 2014) ......................................................... 5, 6, 7, 18
`Christian Legal Society v. Martinez,
`561 U.S. 661 (2010) ................................................................................. 22
`Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
`508 U.S. 520 (1993) ....................................................................... 4, 5, 6, 7
`County of Allegheny v. ACLU Greater Pittsburgh Chapter,
`492 U.S. 573 (1989) ................................................................................. 24
`Employment Division v. Smith,
`494 U.S. 872 (1990) ................................................................... 4, 5, 14, 18
`Fields v. City of Tulsa,
`753 F.3d 1000 (10th Cir. 2014) ............................................................... 25
`Fulton v. City of Philadelphia,
`141 S. Ct. 1868 (2021) ..............................................................6, 16, 17, 20
`
`
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`iii
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`
`TABLE OF AUTHORITIES—continued
`
`Heart of Atlanta Motel, Inc. v. United States,
`379 U.S. 241 (1964) ........................................................................... 22, 23
`Henderson v. Kennedy,
`253 F.3d 12 (D.C. Cir. 2001) ............................................................. 27, 28
`Hernandez v. Commissioner,
`490 U.S. 680 (1989) ........................................................................... 13, 14
`Huri v. Office of the Chief Judge,
`804 F.3d 826 (7th Cir. 2015) ................................................................... 30
`Janny v. Gamez,
`8 F.4th 883 (10th Cir. 2021), petition for cert. dismissed,
`142 S. Ct. 878 (2022) ............................................................................... 26
`Kane v. De Blasio,
`19 F.4th 152 (2d Cir. 2021) ......................................................... 14, 15, 16
`Khedr v. IHOP Restaurants, LLC,
`197 F. Supp. 3d 384 (D. Conn. 2016) ...................................................... 29
`Lawrence v. Texas,
`539 U.S. 558 (2003) ................................................................................. 22
`Lee v. Weisman,
`505 U.S. 577 (1992) ........................................................................... 25, 26
`Lyng v. Northwest Indian Cemetery Protective Ass’n,
`485 U.S. 439 (1988) ................................................................................... 7
`Martineau v. Ghezzi,
`389 F. Supp. 187 (N.D.N.Y. 1974) ........................................................... 15
`Masterpiece Cakeshop, Ltd. v. Colorado
`Civil Rights Commission,
`138 S. Ct. 1719 (2018) .................................................. 9, 11, 12, 20, 21, 23
`Minnesota ex rel. McClure v. Sports & Health Club, Inc.,
`370 N.W.2d 844 (Minn. 1985) (en banc) ................................................. 30
`Morgan v. Zaharo Cab Corp.,
`No. 10117888 (N.Y. Div. Hum. Rts. Nov. 14, 2008),
`https://on.ny.gov/38mgBLI ...................................................................... 10
`
`iv
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`TABLE OF AUTHORITIES—continued
`
`Nappi v. Holland Christian Home Ass’n,
`No. 2:11-cv-2832, 2015 WL 5023007 (D.N.J. Aug. 21, 2015) ................. 30
`New Hope Family Services, Inc. v. Poole,
`966 F.3d 145 (2d Cir. 2020) ....................................................................... 6
`Newman v. Piggie Park Enterprises, Inc.,
`390 U.S. 400 (1968) (per curiam) ............................................................ 28
`Our Lady of Guadalupe School v. Morrissey-Berru,
`140 S. Ct. 2049 (2020) ............................................................................... 4
`Paletz v. Adaya,
`No. B247184, 2014 WL 7402324
`(Cal. Ct. App. Dec. 29, 2014) ................................................................... 29
`Prince v. Massachusetts,
`321 U.S. 158 (1944) ................................................................................. 19
`Reynolds v. United States,
`98 U.S. 145 (1878) ................................................................................. 4, 5
`Roberts v. U.S. Jaycees,
`468 U.S. 609 (1984) ..................................................................... 20, 21, 24
`Romer v. Evans,
`517 U.S. 620 (1996) ................................................................................. 28
`Santa Fe Independent School District v. Doe,
`530 U.S. 290 (2000) ................................................................................. 26
`Sherbert v. Verner,
`374 U.S. 398 (1963) ........................................................................... 18, 19
`Stormans, Inc. v. Selecky,
`586 F.3d 1109 (9th Cir. 2009) ................................................................... 7
`Tandon v. Newsom,
`141 S. Ct. 1294 (2021) (per curiam) ...................................................... 6, 8
`Town of Greece v. Galloway,
`572 U.S. 565 (2014) ................................................................................. 24
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`v
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`TABLE OF AUTHORITIES—continued
`
`
`United States v. Lee,
`455 U.S. 252 (1982) ........................................................................... 18, 19
`U.S. Power Squadrons v. State Human Rights Appeal Board,
`452 N.E.2d 1199 (N.Y. 1983) ................................................................... 10
`Warner v. Orange County Department of Probation,
`115 F.3d 1068 (2d Cir. 1996), reinstated after vacatur and
`remand, 173 F.3d 120 (2d Cir. 1999) ...................................................... 26
`We the Patriots USA, Inc. v. Hochul,
`17 F.4th 266 (2d Cir. 2021), petition for cert. docketed
`(U.S. Feb. 14, 2022) (No. 21-1143) .............................................. 14, 16, 17
`Wisconsin v. Yoder,
`406 U.S. 205 (1972) ........................................................................... 18, 19
`Yellowbear v. Lampert,
`741 F.3d 48 (10th Cir. 2014) ................................................................... 12
`Constitutions, Statutes, and Rules
`2002 N.Y. Sess. Laws A.1971, https://bit.ly/3MdwuTp ............................... 15
`N.Y. Ben. Ord. Law § 2 ................................................................................ 11
`N.Y. Dom. Rel. Law § 10-b ........................................................................... 11
`N.Y. Exec. Law § 292 ............................................................................. 10, 11
`N.Y. Exec. Law § 296 ........................................ 3, 8, 12, 13, 15, 17, 18, 19, 21
`
`Other Authorities
`Complaint, Fatihah v. Neal, No. 6:16-cv-00058, ECF No. 3
`(E.D. Okla. Feb. 17, 2016) ................................................................. 29, 30
`Christy Mallory et al., Williams Institute, The Impact of
`Stigma and Discrimination Against LGBT People in Texas
`(2017), https://bit.ly/3LQWkfE ................................................................ 23
`S. Rep. No. 88-872 (1964) ............................................................................. 23
`
`
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`TABLE OF AUTHORITIES—continued
`
`Brent Staples, Traveling While Black:
`The Green Book’s Black History, N.Y. Times (Jan. 25, 2019),
`https://nyti.ms/3aaPiAB .......................................................................... 23
`
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page9 of 42
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`INTERESTS OF THE AMICI CURIAE1
`Amici are religious and civil-rights organizations that are united in
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`respecting the important but distinct roles of religion and government in
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`our nation. Amici represent diverse faiths and beliefs while sharing a
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`commitment to ensuring that LGBTQ people remain free from officially
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`sanctioned discrimination. They believe that the right to exercise religion
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`freely is precious and should never be misused to undermine that principle
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`or otherwise cause harm. Amici also recognize and oppose the threat to
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`religious freedom that would result if the Constitution were understood to
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`require religious exemptions from antidiscrimination laws.
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`The amici are:
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` Americans United for Separation of Church and State.
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` ADL (Anti-Defamation League).
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` Bend the Arc: A Jewish Partnership for Justice.
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` Central Conference of American Rabbis.
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` Covenant Network of Presbyterians.
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` Global Justice Institute, Metropolitan Community Churches.
`
`
`1 No counsel for a party authored this brief in whole or in part, and no
`person other than amici, their members, or their counsel made a monetary
`contribution intended to fund the brief’s preparation or submission. All
`parties have consented to the filing of this brief.
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`1
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page10 of 42
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` Hindu American Foundation.
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` Interfaith Alliance Foundation.
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` Men of Reform Judaism.
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` Muslim Advocates.
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` Muslims for Progressive Values.
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` The Sikh Coalition.
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` Union for Reform Judaism.
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` Women of Reform Judaism.
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`2
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page11 of 42
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`INTRODUCTION AND SUMMARY OF ARGUMENT
`New York law requires that public accommodations serve all people
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`regardless of their sexual orientation. See N.Y. Exec. Law § 296(2)(a). The
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`law thus ensures that when LGBTQ people seek to buy goods and services
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`on the same terms as everyone else, they do not suffer the stigma and
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`degradation associated with discrimination.
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`In a nation defined by its religious pluralism, the many and varied
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`beliefs among our people make it inevitable that secular laws—including
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`New York’s public-accommodations law—will at times offend some
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`people’s religious sensibilities. But while religion and religious practices
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`may not be specially disfavored, there is no Free Exercise Clause violation
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`when a law that regulates conduct for valid secular purposes and in a
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`nondiscriminatory manner incidentally burdens some religious exercise.
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`That is exactly the kind of law Section 296(2) is.
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`Exempting businesses from the law so that they may refuse service
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`to gay and lesbian people based on the businesses’ religious views would
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`undermine, not advance, religious freedom. The arguments that plaintiff-
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`appellant Emilee Carpenter, LLC makes for such an exemption would
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`also, if accepted, permit businesses to rely on their religious beliefs to deny
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`service to people of the “wrong” religion—or race, or sex, or any other
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`protected characteristic, for that matter. Far from promoting religious
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`freedom, a ruling in Carpenter’s favor would thus hamstring New York’s
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`ability to ensure that its residents can live as equal members of the
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`community regardless of faith or belief.
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`ARGUMENT
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`I. The Free Exercise Clause does not require the exemption that
`Carpenter seeks.
`Religious freedom is a value of the highest order. But the
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`constitutional guarantee of religious freedom is not an entitlement to
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`“general immunity from secular laws.” Our Lady of Guadalupe Sch. v.
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`Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020). The Free Exercise Clause is
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`not, and never has been, a free pass to violate the law. And it in no way
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`compels New York to exempt Carpenter from the State’s prohibition
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`against sexual-orientation discrimination in public accommodations.
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`A. The public-accommodations law does not trigger strict
`scrutiny.
`Though government cannot regulate a religious practice because it is
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`religious (see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of
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`Hialeah, 508 U.S. 520, 531–33 (1993)), religion-based disagreement with
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`the law does not excuse noncompliance. “To permit this would be to make
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`the professed doctrines of religious belief superior to the law of the land,
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`and in effect to permit every citizen to become a law unto himself.” Emp.
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`Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting Reynolds v. United States,
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`98 U.S. 145, 166–67 (1878)). And that would “open the prospect of
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`constitutionally required religious exemptions from civic obligations of
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`almost every conceivable kind,” from drug laws to traffic laws. Id. at 888–
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`89.
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`The Supreme Court has therefore held that laws that apply
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`generally and are neutral with respect to religion do not trigger
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`heightened scrutiny, even if they “ha[ve] the incidental effect of burdening
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`a particular religious practice.” Lukumi, 508 U.S. at 531; accord Smith,
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`494 U.S. at 879. Hence, “a state can determine that a certain harm should
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`be prohibited generally, and a citizen is not, under the auspices of her
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`religion, constitutionally entitled to an exemption.” Cent. Rabbinical Cong.
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`of U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183,
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`196 (2d Cir. 2014). Accordingly, Carpenter’s religious motivations cannot
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`excuse noncompliance with the public-accommodations law’s prohibition
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`on sexual-orientation discrimination, and Carpenter’s free-exercise claim
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`was properly dismissed.
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`1. The neutrality requirement means that a law must not “restrict
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`practices because of their religious motivation.” Lukumi, 508 U.S. at 533.
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`Discriminatory intent may be apparent on the face of a law, or it may be
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`revealed through the law’s practical effects, as when legal requirements
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`have been “gerrymandered with care to proscribe” religious conduct qua
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`religious conduct. See id. at 533–34, 542. But neutrality is not undermined
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`just because a law affects a claimant’s religious exercise. Rather, to trigger
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`strict scrutiny the claimant must show that the state has targeted specific
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`religious conduct or beliefs for maltreatment. See id.; New Hope Family
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`Servs., Inc. v. Poole, 966 F.3d 145, 162–63 (2d Cir. 2020).
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`General applicability is the closely related requirement that the
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`state, “in pursuit of legitimate interests, cannot in a selective manner
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`impose burdens only on conduct motivated by religious belief.” Lukumi,
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`508 U.S. at 543. Government thus may not burden religious conduct while
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`affording more favorable treatment to nonreligious conduct that is as
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`detrimental to the underlying state interests. See Tandon v. Newsom, 141
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`S. Ct. 1294, 1296 (2021) (per curiam). Nor may the state utilize “a
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`mechanism for individualized exemptions” to favor requests for secular
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`exceptions over religious ones. See Fulton v. City of Philadelphia, 141 S.
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`Ct. 1868, 1877 (2021) (quoting Smith, 494 U.S. at 884).
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`New York’s public-accommodations law is neutral and generally
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`applicable. Far from “purposefully singl[ing] out religious conduct” for
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`discriminatory treatment (see Cent. Rabbinical Cong., 763 F.3d at 194), it
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`bars sexual-orientation discrimination in all places of public
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`accommodation. A business’s motivations for denying service, religious or
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`otherwise, are immaterial. And Carpenter offers no evidence that the law
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`was “specifically directed at . . . religious practice” (id. at 193 (quoting
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`Smith, 494 U.S. at 878)).
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`The fact that a law may affect some religiously motivated conduct is
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`an unavoidable result of how law operates in a religiously diverse society.
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`See Smith, 494 U.S. at 878–80, 888–90; see also Lyng v. Nw. Indian
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`Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988) (“[G]overnment simply
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`could not operate if it were required to satisfy every citizen’s religious
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`needs and desires.”). Such incidental effects do not amount to religious
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`targeting or render a law non-neutral. See Lukumi, 508 U.S. at 535.
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`Accordingly, New York may enact and enforce laws when, as here, it
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`acts on “a legitimate concern of government for reasons quite apart from
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`[religious] discrimination.” Id. That is true even if the law
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`disproportionately affects some religious exercise. See, e.g., id. at 531. And
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`“[t]he Free Exercise Clause is not violated even though a group motivated
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`by religious reasons may be more likely to engage in the proscribed
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`conduct.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1131 (9th Cir. 2009).
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`2. Nor are the neutrality and general applicability of New York’s
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`prohibition on sexual-orientation discrimination in public accommodations
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`undermined by any asserted exemptions for secular activities. As the
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`Supreme Court recently clarified, a law may fail the requirements of
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`neutrality and general applicability if it treats religious activity more
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`harshly than comparable secular activities—that is, secular activities that
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`equally conflict with the underlying state interests. See Tandon, 141 S. Ct.
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`at 1296. The Covid-related public-health law at issue in Tandon, for
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`example, was not neutral and generally applicable because it severely
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`restricted in-home religious gatherings while exempting nonreligious
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`gatherings that posed greater or equal risks of transmission of Covid. See
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`id. at 1296–97. So if Section 296(2) prohibited religiously motivated
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`denials of service but permitted nonreligious denials that equally
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`interfered with the law’s purpose of eradicating discrimination in public
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`accommodations against gay and lesbian people, heightened scrutiny
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`would apply.
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`But the statute does no such thing. Indeed, Carpenter fails to
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`identify any secular exemptions from New York’s prohibition against
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`sexual-orientation discrimination in public accommodations.
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`First, Carpenter points to scenarios that do not represent
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`exemptions at all but instead are examples of conduct that is not
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`discriminatory. Carpenter asserts that Section 296(2) exempts bakers who
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`do not want to create cakes with anti-LGBTQ or racist messages. See
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`Appellants’ Br. 38. But neither opposition to LGBTQ rights nor racism
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`makes one a member of a protected class, so declining to make a cake with
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`those messages would not constitute discrimination under New York’s law.
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`8
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`Contrary to what Carpenter suggests (Appellants’ Br. 39), the Supreme
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`Court did not hold in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
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`Commission, 138 S. Ct. 1719 (2018), that a public-accommodations law is
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`not neutral toward religion if it prohibits refusal to bake a cake for the
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`wedding of a same-sex couple but allows refusal to bake an anti-LGBTQ
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`cake. The Court instead treated as evidence of an antireligious value
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`judgement a state civil-rights commission’s reasoning that anti-LGBTQ
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`cakes communicated an offensive message while cakes celebrating same-
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`sex weddings did not. See id. at 1730–31. Justice Kagan explained in a
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`concurring opinion that if the civil-rights commission had simply reasoned
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`that being opposed to marriage equality for LGBTQ people does not make
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`one a member of a protected class under the applicable public-
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`accommodations law, there would not have been a free-exercise concern.
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`See id. at 1732–34 (Kagan, J., concurring).
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`Likewise, New York’s public-accommodations law is not violated
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`when a business acts for “legitimate and nondiscriminatory reason[s]”
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`(Appellants’ Br. 38). For example, Carpenter’s complaint cites cases (J.A.
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`60 ¶ 291) in which a matchmaker refused service based on a prospective
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`client’s refusal to share personal information rather than based on his
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`disability (Battaglia v. Buffalo Niagara Introductions, Inc., No. 10138581,
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`at 4–6 (N.Y. Div. Hum. Rts. Jan. 28, 2012), https://on.ny.gov/39bB3im) and
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`9
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page18 of 42
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`a taxi driver accelerated when a passenger attempted to enter his taxi
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`because he did not see the passenger rather than because of the
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`passenger’s race or religion (Morgan v. Zaharo Cab Corp., No. 10117888,
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`at 2, 4–5 (N.Y. Div. Hum. Rts. Nov. 14, 2008), https://on.ny.gov/38mgBLI).
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`Once again, these are not exemptions from New York’s antidiscrimination
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`law because no discrimination based on membership in a protected class
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`took place. The same reasoning applies when healthcare providers refer
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`patients to a different office “based on sound medical judgment”
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`(Appellants’ Br. 38): the patient is not being denied service based on
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`membership in a protected group.
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`Carpenter also points (id. at 48) to the public-accommodations law’s
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`nonapplication to entities that are “in [their] nature distinctly private”
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`(N.Y. Exec. Law § 292(9)), such as private clubs with selective membership
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`policies (see U.S. Power Squadrons v. State Hum. Rts. Appeal Bd., 452
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`N.E.2d 1199, 1204 (N.Y. 1983)). But these “distinctly private” entities are
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`by definition not open to the public at large, so allowing them to control
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`their membership does not risk subjecting the citizens of New York to the
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`stigma and degradation of being denied equal access to goods and services
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`in the public marketplace. That “distinctly private” entities are not
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`covered by New York’s public-accommodations law therefore does not
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`undermine the interests supporting the law. Moreover, because “religious
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page19 of 42
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`corporation[s]” and “benevolent orders” (many of which are also religious,
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`see N.Y. Ben. Ord. Law § 2) are included among “distinctly private”
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`entities under the statute (see N.Y. Exec. Law § 292(9)), the public-
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`accommodations law’s treatment of “distinctly private” entities
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`accommodates religion instead of disfavoring it.
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`In fact, New York accommodates religion even more broadly through
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`another statute, N.Y. Dom. Rel. Law § 10-b, which grants an exemption
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`from all New York antidiscrimination laws, with respect to provision of
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`wedding services or facilities, not only to religious corporations and
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`benevolent orders but also to “a not-for-profit corporation operated,
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`supervised, or controlled by a religious corporation, or any employee
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`thereof being managed, directed, or supervised by or in conjunction with a
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`religious corporation, benevolent order, or a not-for-profit corporation.”
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`That New York has not expanded this exemption to religious objectors who
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`operate for-profit businesses such as Carpenter does not trigger strict
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`scrutiny, for the exemption favors religion instead of discriminating
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`against it. Indeed, in Masterpiece Cakeshop, the U.S. Supreme Court
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`emphasized that although
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`it can be assumed that a member of the clergy who objects to
`gay marriage on moral and religious grounds could not be
`compelled to perform the ceremony without denial of his or her
`right to the free exercise of religion . . . if that exception were
`not confined, then a long list of persons who provide goods and
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page20 of 42
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`services for marriages and weddings might refuse to do so for
`gay persons, thus resulting in a community-wide stigma
`inconsistent with the history and dynamics of civil rights laws
`that ensure equal access to goods, services, and public
`accommodations.
`
`138 S. Ct. at 1727. State high courts have likewise rejected the proposition
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`that if government grants an exemption to certain kinds of religious
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`institutions it must then extend the exemption to all religious entities and
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`objectors, explaining that the law is full of exemptions that are restricted
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`to certain kinds of religious entities, and that prohibiting legislatures from
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`reasonably limiting the scope of religious exemptions would harm religious
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`freedom by discouraging legislators from enacting the exemptions at all.
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`See Cath. Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 464
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`(N.Y. 2006); Cath. Charities of Sacramento v. Superior Court, 85 P.3d 67,
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`84–86 (Cal. 2004); see also Yellowbear v. Lampert, 741 F.3d 48, 58 (10th
`
`Cir. 2014) (Gorsuch, J.) (“Surely the granting of a religious accommodation
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`to some in the past doesn’t bind the government to provide that
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`accommodation to all in the future. . . .”).
`
` Carpenter goes further astray in relying on exemptions from
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`prohibitions on discrimination that is not in public accommodations or is
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`not based on sexual orientation. For example, Carpenter cites (Appellants’
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`Br. 47) provisions limiting the reach of New York’s restrictions on
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`discrimination in employment (e.g., N.Y. Exec. Law § 296(1)) and housing
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`Case 22-75, Document 129, 05/16/2022, 3315820, Page21 of 42
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`(N.Y. Exec. Law § 296(5)). Carpenter also references (Appellants’ Br. 40,
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`48) an exemption from New York’s disability-accommodation requirements
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`for situations where the accommodation “would fundamentally alter the
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`nature of the facility, privilege, [or] advantage” (N.Y. Exec. Law
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`§ 296(2)(c)(ii)), as well as a provision that allows the State to “grant[ ] an
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`exemption based on bona fide considerations of public policy” from its
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`statutory prohibition against sex discrimination (N.Y. Exec. Law
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`§ 296(2)(b)).
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`But none of these provisions are exemptions from the prohibition
`
`that Carpenter actually challenges—New York’s bar against sexual-
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`orientation discrimination in public accommodations. These provisions
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`therefore do not and cannot undermine New York’s interest in preventing
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`that type of discrimination. The pertinent legal question is whether the
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`challenged prohibition is neutral and generally applicable, not whether
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`some other prohibition falls short.
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`Thus, for example, the Supreme Court held in Hernandez v.
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`Commissioner, 490 U.S. 680, 700 (1989), that the Free Exercise Clause did
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`not entitle a religious group’s members to an exemption from taxation of
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`income paid for spiritual-training sessions. The Court explained that the
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`tax code contains a general prohibition against deducting from income
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`money paid to nonprofits—secular or religious—in exchange for services.
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`See id. at 689–90, 699–700. It made no difference to the Court that other
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`provisions of the tax code allow taxpayers to deduct charitable
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`contributions to nonprofits when the taxpayer receives nothing in return.
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`See id. at 683–84, 689–90, 699–700.
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`Likewise, in Smith, 494 U.S. at 874, 890, the Supreme Court held
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`that Oregon’s general criminal prohibition against use of the mind-
`
`altering drug peyote could be constitutionally applied to people who use
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`peyote as a religious sacrament. The Court concluded that the Oregon law
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`was neutral and generally applicable, as it prohibited both religious and
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`nonreligious uses of peyote. See id. at 874, 879–80. It did not matter to the
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`Court that Oregon state law as a whole did not prohibit the use of another
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`mind-altering substance—alcohol.
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`And recently, this Court ruled that several Covid-vaccination
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`mandates were generally applicable even though they covered only certain
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`classes of workers as opposed to all workers or all New Yorkers. See Kane
`
`v. De Blasio, 19 F.4th 152, 166 (2d Cir. 2021) (certain New York City
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`Department of Education employees and contractors); We the Patriots
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`USA, Inc. v. Hochul, 17 F.4th 266, 274, 290 (2d Cir. 2021) (certain
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`healthcare workers), petition for cert. docketed (U.S. Feb. 14, 2022) (No. 21-
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`1143). This Court explained, “neither the Supreme Court, our court, nor
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`any other court of which we are aware has ever hinted that a law must
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`apply to all people, everywhere, at all times, to be ‘generally applicable.’”
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`Kane, 19 F.4th at 166.
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`Further, it would be particularly inappropriate for the Court to
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`consider exemptions to prohibitions other than the one on sexual-
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`orientation discrimination in public accommodations because of the
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`different considerations and interests that different antidiscrimination
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`provisions address and balance. See, e.g., State Appellees’ Br. 59–60. For
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`example, the only instance we have identified of application of the “public
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`policy” exemption to the prohibition against sex discrimination in public
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`accommodations (N.Y. Exec. Law § 296(2)(b)) was a situation where hair
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`salons were allowed to serve only one gender because separate license