A panel of three U.S. Sixth Circuit Court of Appeals judges heard arguments Friday morning as attorneys for Louisville Metro Government attempted to defend the city’s Fairness Ordinance, which bans LGBTQ+ discrimination.
In 2022,a federal district judge ruled in favor of Chelsey Nelson, a wedding photographer who argued the city could not force her to provide her services for a same-sex wedding. The city never ordered Nelson to provide photography services to LGBTQ+ couples, but she filed the lawsuit preemptively, arguing that doing so would violate her First Amendment rights of free speech and religion.
“Although Louisville may require restaurants and hotels and stores to provide services regardless of the proprietors' views or their customers' legal status, the government may not force singers or writers or photographers to articulate messages they don't support,” District Judge Benjamin Beaton wrote in his 2022 opinion. “Because speech is categorically different under the federal Constitution, local laws must treat it differently, too.”
Louisville Metro quickly appealed the decision. But as the case wound its way through lower-level courts, the U.S. Supreme Court ruled that a Colorado web designer has the right to refuse to design wedding websites for same-sex couples, trumping the state’s LGBTQ+ discrimination law.
Appeals judges Friday quizzed Casey Hinkle, the lawyer representing Louisville, on why the Supreme Court ruling, often referred to as the 303 Creative decision, would not support Nelson’s argument.
Hinkle argued that the Supreme Court’s ruling also acknowledged that there will be “difficult cases” where the line between what services are and are not protected under free speech could be blurry.
“We do not stipulate or agree that the services that Miss Nelson provides — wedding photography — constitute pure speech,” Hinkle said
In the 303 Creative case, Colorado’s lawyers defending the anti-discrimination law conceded that web design is an “expressive” act, which has become key in determining whether a service falls under free-speech protections. Louisville Metro has made no such stipulation, Hinkle said.
Louisville has not said whether they would have enforced the ordinance against Nelson if she refused to serve same-sex couples. In 303 Creative, Colorado also stipulated to that point.
There are other similarities between the cases. The same legal advocacy group represented the plaintiffs in both: The Alliance Defending Freedom, a conservative Christian legal group. ADF attorney Jonathan Scruggs represented Nelson before the appellate panel Friday.
Scruggs argued Nelson had already experienced a “chilling effect” on her speech. The attorney said Nelson had drafted a statement for her website, saying she would not serve same-sex couples. But she claimed the Fairness Ordinance made her too afraid to post that statement.
“We have an immense record of enforcement history. We have Louisville again and again refusing to disavow, saying their entire legal theory is that they not only can enforce against my client, but they have a compelling need to enforce against my client,” Scruggs said.
Nelson is asking for damages in the case based on the period of time in which she was too afraid to post the statement. After the district judge’s ruling and injunction, Nelson posted the statement on her website.
“God’s word greatly impacts my life and business. Practically, this means I don’t photograph every wedding that comes my way. I cannot positively depict anything that demeans others, sexually objectifies others, or devalues marriage between one man and one woman,” Nelson wrote on her website. “I also can’t photograph anything that conflicts with my religious conviction that marriage is a covenant relationship before God between one man and one woman (for example, I don’t photograph same-sex weddings or ceremonies celebrating an open marriage).”
Hinkle, the attorney defending the city ordinance, argued that Nelson can’t seek damages based solely on her perception that her speech was chilled.
Hinkle also argued that Nelson shouldn’t be able to sue the city because she recently moved to Florida.
“There is no evidence in the record that Louisville has ever enforced its public accommodations law against a non-resident,” Hinkle wrote in a court filing. “Therefore, Nelson cannot establish a credible threat of enforcement.”
Scruggs said Nelson would still be willing to photograph weddings in Louisville and that her professional website is still focused on the Louisville area.
Judge John Bush asked whether the appeals court should send the case back to the lower court.
“Are we really the right level to be making these factual findings? Shouldn't we send it back to the district court to make these findings?” he said.
Scruggs asked for time to submit a written response to Louisville’s request to dismiss Nelson’s claims.
