Federal judge: Kentucky photographer can continue to refuse same-sex weddings while she challenges city’s nondiscrimination law

Wedding photographer Chelsey Nelson objects to making her service available to same-sex couples. Because her religious refusal runs afoul of Louisville‘s Fairness Ordinance, which prohibits businesses that are open to the public from discriminating on the basis of sexual orientation or gender identity, she is seeking an injunction barring the city from enforcing it against her. She is also asking a federal court for a declaration that enforcement would violate her rights under the state law and the First Amendment. In a ruling issued last month, the court granted her injunction while allowing her First Amendment claims to proceed.

 The court did not specifically address Nelson’s religious freedom arguments under the Free Exercise Clause, Establishment Clause or RFRA claims, after finding that her free speech claims were sufficient to issue an injunction and allow the claims to proceed.  Because her work – which involves taking and editing photos at a wedding and writing stories about it on her blog – is expressive speech, the court ruled, it is protected by the First Amendment in a way that other wedding vendors may not be.

Here is an excerpt from the opinion:

The Court need not declare that all photography, always and anywhere, is speech… But photography is speech when the photographer’s artistic talents are combined to tell a story about the beauty and joy of marriage….
…
The meaning of her photos is open to interpretation. But through them, she – unlike many wedding vendors – tells a story. And storytelling is speech.

The court went on to emphasize, however, that the ruling is “not a license to discriminate”:

To be clear, most applications of antidiscrimination laws – including Louisville’s Fairness Ordinance – are constitutional… 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. …

 

Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. Our nation is better because of it. But their progress depended on the First Amendment’s protection of expressive conduct … . Now is no time to weaken that protection.

In a similar case, the Arizona Supreme Court ruled last year that the city of Phoenix is barred from enforcing a nondiscrimination law against business owners who refused to create custom wedding invitations for same-sex wedding ceremonies. The 8th U.S. Circuit Court of Appeals similarly held that wedding videos are a protected form of speech, and allowed a lawsuit brought by videographers in Minnesota to proceed.