Freedom of photography

A business owner in Kentucky received court protection from a law that would force her to take photos at same-sex weddings while she waits for a final decision in her case.

Chelsey Nelson sued the city of Louisville in November 2019 over its Fairness Ordinance. She argued that the 1999 law infringed on her free speech and religious liberty rights by requiring her to photograph and blog about same-sex weddings. Nelson is a Christian and believes God designed marriage as only between one man and one woman. No same-sex couples had attempted to sue Nelson for refusing to photograph their weddings, but she sought protection from future lawsuits. The law also barred her from stating her policy on her website.

U.S. District Judge Justin R. Walker, an appointee of President Donald Trump, ruled that the First Amendment to the U.S. Constitution shielded Nelson’s photography as protected, expressive speech. He ordered a preliminary injunction barring Louisville from enforcing the ordinance.

“Under our Constitution, the government can’t force [religious believers] to march for, or salute in favor of, or create an artistic expression that celebrates a marriage that their conscience doesn’t condone,” Walker wrote, adding that society, as well as the courts, had to reckon with questions surrounding free speech, religious liberty, and equal treatment.

“Courts must navigate these difficult issues without imposing indignities on religious believers when they engage in expressive conduct and ‘without subjecting gay persons to indignities when they seek goods and services in an open market,’” the judge noted, citing language from the Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the justices ruled in favor of Christian baker Jack Phillips who declined to design and make a cake for a same-sex wedding because of his religious beliefs about marriage.

Nelson’s case joins a growing number in which the courts have upheld the rights of creative professionals. But a full resolution of the conflict between conscience rights and public accommodation laws may await a Supreme Court decision in State of Washington v. Arlene’s Flowers, Inc., a case involving Christian florist Barronelle Stutzman that is scheduled for arguments this fall.

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