Never Mind The Supreme Ct Ruling a Trump Appointed Judge Rules Photographer Can Reject Gay Couples

Senate Majority Leader Mitch Mcconnell and Judge Justin Reed Walker.

Andrew Wolfson

Louisville Courier Journal

 

A federal judge has blocked the city of Louisville from enforcing its Fairness Ordinance against a photographer who says she can only shoot pictures of weddings between a man and a woman because of her Christian religious beliefs. 

U.S. District Judge Justin Walker ruled Friday that Metro Government may not compel Chelsey Nelson to photograph same-sex weddings or punish her for advertising on her website or social media that she only photographs and blogs about opposite-sex ceremonies. 

“America is wide enough for those who applaud same-sex marriage and those who refuse to,” Walker wrote in a 27-page opinion. “The Constitution does not require a choice between gay rights and freedom of speech. It demands both." 

Walker, a judicial conservative who has been confirmed to the U.S. Court of Appeals for the District of Columbia, also cited the Supreme Court’s 2015 opinion establishing the right of same-sex marriage. 

“Just as gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,'" Walker wrote, quoting the opinion in Obergefell v. Hodges, “neither can Americans ‘with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth.'" 

Background:Court date for photographer suing over Fairness Ordinance approaches

Walker issued a preliminary injunction for Nelson, saying she is likely to win a lawsuit in which she protested restrictions under the Fairness Ordinance, which protects members of the LGBTQ community from discrimination. 

Walker said “her photography is art," that “art is speech” and that the government can’t compel speech when it violates the speaker’s religious or political principles. 

Although photography is wordless, Walker said, “so too is refusing to salute the flag or marching in a parade, both of which the Supreme Court has said are protected forms of speech.” 

Nelson's lawyer, Jonathan Scruggs, senior counsel for Alliance Defending Freedom, applauded the ruling.

“Just like every American, photographers and writers like Chelsey should be free to peacefully live and work according to their faith without fear of unjust punishment by the government,” he said. "“The court was right to halt enforcement of Louisville’s law against Chelsey while her case moves forward."

The city's lawyers did not immediately respond to questions about the opinion or whether they will appeal.

Its lawyers argued that laws targeting discriminatory conduct do not violate the First Amendment. 

Read this:5 years after same-sex marriage ruling, Kentucky couples reflect 

The American Civil Liberties said in a brief that if Nelson could refuse service to same-sex couples on First Amendment grounds, another photographer could turn away interracial or interfaith couples, or Black or Muslim couples. 

“There is no question that Louisville has the authority to prohibit businesses that choose to operate within its boundaries from discriminating in their sales of goods and services to the public,” it said. 

The city also said it had never taken or threatened enforcement action against Nelson. 

But Walker said enforcement is a possibility, given that between 2010 and 2017, Louisville investigated 93 businesses for alleged violations of the Fairness Ordinance, and because the city declined to disavow that it might prosecute her. 

Nelson also contended that her business suffered because she could not market openly because of the fear of being fined and having to pay legal fees.

Her suit filed last year drew national attention, including support from President Donald Trump's administration. 

The Supreme Court in 2018 considered a case like Nelson’s when it ruled in favor of a Colorado baker who had refused to create a wedding cake for a gay couple. Jack Phillips said decorating cakes is a form of art through which he can honor God and that it would displease God to create cakes for same-sex marriages. 

But the court’s decision was narrow, and it left open the larger question of whether a business can discriminate against LGBTQ people based on rights protected by the First Amendment. 

Nelson:As a Christian, I shouldn't be forced to work same-sex weddings

In 1999, Louisville passed the Fairness Ordinance, which prohibits discrimination based on sexual orientation and gender identity in housing, public accommodations and employment.

Walker noted that the law requires that companies serve LGBTQ customers and refrain from advertising that they won’t serve them. In the two decades since then, 19 Kentucky communities have passed similar laws. 

Paying homage to the struggle to enact those laws, Walker said that “a generation ago, when 10 Louisvillians founded the Fairness Campaign, discrimination against gay and lesbian people was legal in every Kentucky city," but that with “extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives, the Fairness Campaign and its allies changed that.”