When “accommodate” means “discriminate”

Anyone can snap a picture, but professional photographers do more than that, says Chelsey Nelson. She is a Kentucky wedding photographer who says she uses images and words to celebrate the union of marriage—just not same-sex marriage. In a possible preview of a hoped-for Supreme Court ruling next year, a federal judge in Kentucky on Tuesday barred the Louisville city government from forcing Nelson to comply with its public accommodations law by photographing and creating blogs for same-sex weddings.

In a 44-page opinion, U.S. District Judge Benjamin Beaton ruled that Louisville’s so-called Fairness Ordinance unfairly violated Nelson’s free speech rights. He said it forced her to express messages contrary to her Christian belief that marriage is only between one man and one woman. The Trump appointee also nixed provisions in the local law that would have barred Nelson from stating on her website that she could not photograph same-sex weddings or posting statements that could make potential customers feel unwelcome.

Beaton rejected efforts by the city’s attorneys to frame its law as a permissible regulation of conduct, not speech. “The government may not distill a person’s expression to its basest components and then siphon that essential conduct,” the judge concluded. “When speech and conduct are diffused, one cannot be controlled without also abridging the other. By regulating an artist’s choice to take a job or click a button, the government is making her produce speech she disagrees with.”

Beaton was not swayed by city attorneys’ argument that the law focused on protection of a protected class and not limiting speech. Nelson will serve LGBT customers so long as the photos she produces do not carry a message that contradicts her beliefs, the judge noted, concluding that “discrimination based on status is not the same as disagreement with a message.”

Louisville’s law was particularly offensive because of its attempt to bar the photographer from explaining her beliefs on her website, Beaton wrote, concluding that the city was picking sides by approving of messages that approve of same-sex marriage while disapproving of messages that dissent from the city-approved view. “This sort of content- and viewpoint-based restriction is presumptively unconstitutional,” Beaton concluded.

While noting that the law would not run afoul of the U.S. Constitution’s free exercise clause, Beaton did find that it violated the state’s Religious Freedom Restoration Act. Like the federal law and a host of other state laws bearing the same name, Kentucky’s RFRA requires governmental action burdening religious conduct to serve a compelling interest and to use the least restrictive means in regulating it—a test the Louisville law failed.

In recent years, bakers, florists, videographers, and other providers of creative services for weddings have run afoul of local and state nondiscrimination laws by objecting to same-sex marriage. In 2018, a Supreme Court with a different mix of judges missed an opportunity to clear things up when it ruled for Colorado baker Jack Phillips on the narrow ground that state nondiscrimination enforcers were hostile to his religious beliefs.

Last year, the court also declined to hear the appeal of Washington florist Barronelle Stutzman. Yet it elected to hear an appeal in the upcoming term beginning in October from Lorie Smith, a Colorado wedding website designer who brought a pre-enforcement challenge to the same law that snared Phillips—this time without the overt hostility shown to the baker.

This time the result may be different—something Beaton hinted at in his identification with the dissent’s view in Smith’s case. A majority of the U.S. Circuit Court of Appeals found that “equal access” to Smith’s “unique” services was required, a view parroted by Louisville’s attorneys yet rejected by Beaton. “In other words, the more expressive the service is, the more scarce it is, and thus the more valuable equal access is,” wrote the judge, quipping, “This flips free speech on its head.”

Creatives argue that laws traditionally enacted to prevent restaurants and hotels from denying service to racial and ethnic minorities are now being used to discriminate against those with a culturally disfavored position on same-sex marriage.

That’s upside down, said Alliance Defending Freedom’s Bryan Neihart, who represents Nelson, celebrating the ruling as one that accommodates the existing diversity of views on marriage. “The court’s decision sends a clear and necessary message to every Kentuckian—and American—that each of us is free to speak and work according to our deeply held beliefs,” said Neihart.

Louisville Mayor Greg Fischer said city officials “will likely be appealing this decision,” vowing in his statement that the city would “fight against discrimination in any form.”