Photo finish may elude Kentucky wedding photographer

What could have been a slam dunk for a Louisville, Ky., wedding photographer’s federal appeal was sidetracked Thursday by a last-minute play by attorneys for the local government.

Chelsey Nelson sued the Louisville Metro government in November 2019 over a public accommodations ordinance she contended would require her to photograph and create blogs for same-sex weddings. She believes marriage is designed only for one man and one woman and the city’s law would have compelled her to speak messages that violated her religious convictions. In August 2020, a U.S. District Court judge agreed with Nelson, barring Louisville from enforcing the law against her. The city appealed.

On Thursday, on the eve of Friday morning arguments before a federal appeals court, Louisville Metro attorneys filed a motion asking to send the case back to a lower court. They argued that the Christian wedding photographer’s move to Florida removed her standing to sue the government over its potential enforcement of the law.

The case appears nearly identical to facts in the Supreme Court’s recent ruling in 303 Creative LLC v. Elenis, where the high court upheld the right of Colorado website designer Lorie Smith not to create websites for same-sex weddings. The appeals court is the first court to address the effect of the June 30 ruling in 303 Creative on similar cases, many of which were put on hold by courts waiting to see the Supreme Court’s guidance.

Three judges on a panel of the 6th U.S. Circuit Court of Appeals grilled attorneys on the effects of the Florida move. Yet in an interview after the hearing, Jonathan Scruggs, the Alliance Defending Freedom attorney who argued on Nelson’s behalf, was nonplussed. He admitted the contention about the move “slanted the argument, but to the extent that the argument was about how this was different than 303 [Creative] … it seems identical,” he said. Scruggs elaborated on his arguments in a pre-hearing supplemental brief filed July 13.

Judges wrestled with whether the case should be sent back to the District Court for fact-finding due to the move. Circuit Judge Jane Branstetter Stranch seemed stuck on whether there was a credible threat of enforcement against Nelson given her relocation to Florida and lack of any enforcement action against her.

“I’m just struggling with the facts that already exist in this case,” said Stranch. “Ms. Nelson has received nothing—no enforcement notes, no challenge to what she’s done, no stating of an intention to take action against her.”

Scruggs argued that his client did not need to prove actual enforcement action against comparable activity in order to have standing to sue. He referenced circuit court precedent allowing a case to proceed even when there had been no prior enforcement action. “What’s key is not standing doppelgangers but credible threats,” argued Scruggs, pointing to the city’s refusal to disavow any intention to pursue enforcement against his client.

Scruggs said the court will likely give Nelson until at least mid to late August to respond to the motion filed by Louisville Metro asking the appeals court to send the case back to the District Court. Afterward, the appeals court could deny the motion and rule in his client’s favor or send the case back to the District Court for further fact-finding.

“Photographs have been held to be protected speech in the 6th Circuit and other courts, so we are just hopeful that the 6th Circuit will rule in Ms. Nelson’s favor,” Scruggs said.