Justice for a Kentucky Christian

Louisville, Ky., may well host the race for the roses at Churchill Downs every year, but when the roses are exchanged at a wedding, a local ordinance mandates that wedding service providers show up even if they have a religious objection to participating in the event. Thankfully the crack attorneys at the Alliance Defending Freedom (ADF) sued to put a stop to that coercion of conscience when they won a nationwide victory with 303 Creative v. Elenis at the U.S. Supreme Court in 2023. But apparently on-point Supreme Court precedent is not good enough for the City of Louisville, which asked a federal district court to dismiss a lawsuit by a wedding photographer without a final injunction that its ordinance is unconstitutional.

In a comprehensive ruling recently, U.S. District Court Judge Benjamin Beaton rejected the city’s request and awarded nominal damages to the photographer. Beaton, a rising star in conservative legal circles nationally, reminded Louisville that he had ruled in 2022 that the so-called “SOGI” ordinance barring discrimination based on sexual orientation or gender identity was unconstitutional, a ruling confirmed by the Supreme Court in 303 Creative. Louisville nevertheless asked the court to vacate its injunction against the ordinance in this round of the case because the plaintiff photographer had moved to another state.

Relying on another important case litigated all the way to the U.S. Supreme Court by ADF, Uzuegbunam v. Preczewski (2021), Judge Beaton explained that her rights had been violated in the past by the statute, and thus she was entitled to nominal damages for that imposition on her constitutionally guaranteed liberties.

Separately, Judge Beaton explained that though the plaintiff had moved to Florida, she still maintained her business as a Kentucky company, advertised in Kentucky, and had client relationships in Kentucky leading to potential future business there. In other words, she faced a legitimate prospect of the ordinance’s enforcement against her in the future.

What’s most frustrating in the whole affair is Louisville’s inability to accept the reality that its ordinance is unconstitutional as applied to wedding service providers. Judge Beaton’s opinion notes that “now, as then, Louisville maintains that the First Amendment allows it to enforce its law and continues to litigate vigorously against Nelson’s website and photography.” He continues, “Louisville does not repudiate the position it has defended through five years of litigation—that Nelson’s statements about her views on marriage and the speech she will and won’t agree to create are clearly proscribed.” The ordinance “remains on the books,” and any aggrieved citizen can file a complaint under it, starting the machinery of the city’s “human rights” apparatchiks against them. Rather than just taking the loss and moving on, the city continues to obfuscate and prevaricate.

The case also reflects deeper problems that remain to be resolved in the wake of 303 Creative. It is a fantastic achievement to protect Christians in the wedding services industry from being forced to celebrate same-sex marriages. However, SOGI laws remain a cudgel used against Christians in other industries and contexts, especially at a time when “gender identity” is a cultural hot button. A SOGI ordinance still could be used to compel businesses to comply with the city’s rules on transgender bathrooms or transgender athletes, for instance.

It’s also frustrating to see that other artists have abandoned Christians in their defense of free speech for artistic expression. A group of over 500 artists, actors, and musicians led by Jane Fonda last week launched the Committee for the First Amendment to “stand together in defense of our constitutional rights.” Though the Hollywood elite are enthusiastic to show up in defense of Jimmy Kimmel’s misconduct, they are nowhere to be found when it comes to protecting other artists who would be driven out of business by laws like Louisville’s SOGI ordinance.

Finally, Louisville’s recalcitrant attitude is reminiscent of too many U.S. district court judges who are using any tool available to avoid the clear import of U.S. Supreme Court precedent. While Judge Beaton is actually honoring and applying what the Supreme Court has said, many of his colleagues are damaging the rule of law by refusing to apply precedents they don’t like (what lawyers call vertical stare decisis). Similarly, many litigants and attorneys like the city here cannot acknowledge and accept certain Supreme Court rulings, and so the city tried every procedural maneuver to weasel out of the injunction.

It’s fair game to criticize, challenge, and seek to overturn bad court decisions, but it’s damaging to the rule of law when government officials try to undermine and evade those decisions while they are on the books.