Judge Halts Enforcement of LGBT Anti-Discrimination Law Against Photographer – Courthouse News Service

(AP Photo/Wong Maye-E)

LOUISVILLE, Ky. (CN) — A federal judge has issued a ruling preventing the city of Louisville from enforcing an anti-discrimination law against a wedding photographer who claims that the ordinance prevents her from refusing to photograph a same-sex wedding.

The city’s rule known as the “Fairness Ordinance” was passed in 1999, and prevents discrimination based upon sexual orientation and gender identity for housing, employment and public accommodations.

However, U.S. District Judge Justin Walker issued a ruling Friday that puts into question the future of the ordinance, and for the time being prevents the city from enforcing the rule against wedding photographer Chelsey Nelson while her lawsuit continues in court.

Nelson filed her lawsuit in November of last year, and claims the law violates her free speech rights because she could be sued if she refused to photograph a same-sex wedding if asked and because the law prohibits her from speaking her beliefs on her professional website.

Walker, at least preliminarily, found that the law is likely to violate Nelson’s free speech rights. He said she should not be compelled to photograph a same-sex wedding and should not be prohibited from advertising her Christian beliefs as the lawsuit proceeds.

“Because the Accommodations Provision compels Nelson to express herself in a manner contrary to her conscience, the Court presumes that the provision — as applied to Nelson — is unconstitutional,” Walker wrote. “To be sure, without discovery or even an answer from Louisville, it’s premature to say Nelson will definitely prevail. But it’s highly likely.”

Walker’s injunction hinged on the idea that Nelson’s wedding photography is a form of speech, specifically labelling wedding photography a form of “storytelling.”

“A government can no more compel that speech than it can compel a freelance speechwriter to write for a political candidate she opposes,” Walker wrote.

Despite Walker appearing to favor Nelson’s viewpoint, he denied her request to block Louisville from enforcing the law against other businesses. On that issue, Walker found that the law still contained many valid avenues of enforcement against sexual orientation discrimination, leaving in place protections that would prevent a restaurant or hotel from refusing service to a gay or lesbian patron.

“To be clear, most applications of antidiscrimination laws — including Louisville’s Fairness Ordinance — are constitutional. Today’s ruling is not a license to discriminate. Nor does it allow for the ‘serious stigma’ that results from a sign in the window announcing that an owner won’t serve gay and lesbian customers,” Walker wrote. 

“In Louisville, since 1999 and still today, Marriott cannot refuse a room to a same-sex couple. McDonald’s cannot deny a man dinner simply because he is gay. Neither an empty hotel room, nor a Big Mac, is speech. And it is unnecessary today to decide any questions unrelated to speech.”

Walker also ruled that while the lawsuit shall move forward, Nelson cannot seek damages for any lost profits she feels she was denied because of her stances, as it would be difficult to blame that on the law. This appears to be bolstered by the fact that in court documents, it is stated that no one has ever made a formal discrimination complaint against Nelson’s photography business.

In the aftermath of Walker’s ruling, Jonathan Scruggs, a lawyer from the Alliance Defending Freedom who argued in favor of Nelson during court proceedings, championed the court’s decision.

“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,” Scruggs said. “The court was right to halt enforcement of Louisville’s law against Chelsey while her case moves forward. She serves everyone. She simply cannot endorse or participate in ceremonies she objects to, and the city has no right to eliminate the editorial control she has over her own photographs and blogs.”

Nelson also found support from the Department of Justice, who in February filed a statement of interest.

“The central question presented in this case is whether the government can compel a wedding photographer to photograph, provide photography editing services for, and blog about weddings of which she does not approve, and does not wish to photograph or to promote,” wrote Assistant Attorney General Eric Dreiband. “The answer is no.”

However, while enjoying support from the Justice Department, the American Civil Liberties Union submitted a court document voicing its support for the Fairness Ordinance.

“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 general public,” wrote Corey Shapiro on behalf of the ACLU.

The ACLU went on to argue that if the court accepted Nelson’s argument, it could be used as a shield by other photographers who wish to discriminate against certain couples.

“The implications of Nelson Photography’s arguments are not limited to sexual-orientation discrimination or weddings. If the First Amendment bars a locality from applying an antidiscrimination law to the provision of wedding photography because it involves expression, then photography companies could refuse to photograph an interracial or interfaith couple’s wedding,” Shapiro wrote. 

“Photographers could refuse to provide photography services for women, Muslims, African Americans, or any other group the company’s owner does not wish to serve.”

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