Chelsey Nelson Photography LLC v. Louisville/Jefferson Cnty. Metro Gov't

• Citation: 479 F.Supp.3d 543
• Decision Date: 14 August 2020
• Docket Number: CIVIL ACTION NO. 3:19-CV-851-JRW
• Parties: CHELSEY NELSON PHOTOGRAPHY LLC, et al., Plaintiffs v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, et al., Defendants
• Court: U.S. District Court — Western District of Kentucky

479 F.Supp.3d 543

CHELSEY NELSON PHOTOGRAPHY LLC, et al., Plaintiffs

v.LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, et al., Defendants

CIVIL ACTION NO. 3:19-CV-851-JRW

United States District Court, W.D. Kentucky.

Signed August 14, 2020

Bryan Neihart, Jonathan A. Scruggs, Katherine L. Anderson, Alliance Defending Freedom, Scottsdale, AZ, David A. Cortman, Alliance Defending Freedom, Lawrenceville, GA, Joshua D. Hershberger, Hershberger Law Office, Hanover, IN, for Plaintiffs.

Casey L. Hinkle, David S. Kaplan, Kaplan Johnson Abate & Bird LLP, Jason D. Fowler, John F. Carroll, Jr., Peter Frank Ervin, Jefferson County Attorney, Louisville, KY, for Defendants Louisville/Jefferson County Metro Government, Louisville Metro Human Relations Commission-Enforcement, Louisville Metro Human Relations Commission-Advocacy, Kendall Boyd, Marie Dever, Kevin Delahanty, Charles Lanier, Sr., Laila Ramey, William Sutter, Ibrahim Syed, Leonard Thomas.

Gregory A. Napier, Troutman & Napier, PLLC, Lexington, KY, for Defendants Center for Religious Expression, Inc.

ORDER

Justin R. Walker, District Judge

1. The Court GRANTS in part and DENIES in part Louisville's motion to dismiss (DN 14).¹

2. The Court DISMISSES without prejudice the damages claims filed by Chelsey Nelson Photography, LLC and Chelsey Nelson (together, "Nelson").

3. The Court GRANTS in part and DENIES in part Nelson's preliminary injunction motion (DN 3).

PRELIMINARY INJUNCTION

The Court PRELIMINARILY ENJOINS² Louisville/Jefferson County Metro Government; Louisville Metro Human Relations Commission – Enforcement; Kendall Boyd; Marie Dever; Kevin Delahanty; Charles Lanier, Sr.; Laila Ramey; William Sutter; Ibrahim Syed; and Leonard Thomas (in their official capacities) from taking the following actions against Nelson:

1. Invoking Metro Ordinance § 92.05(A) to compel Nelson to provide her wedding photography services to express messages inconsistent with Nelson's beliefs in marriage between one man and one woman, such as providing these services for same-sex wedding ceremonies; and

2. Invoking Metro Ordinance § 92.05(B) to prohibit Nelson from posting her desired statements (DN 1-2; DN 1-3) on her website and from making materially similar statements on her studio's website, on her studio's social media sites, or directly to prospective clients.

Nelson is substantially likely to succeed on her Free Speech claim. She doesn't need to post a bond.³

MEMORANDUM OPINION

A generation ago, ten Louisvillians founded the Fairness Campaign.⁴ At the time, discrimination against gay and lesbian people was legal in every Kentucky city.⁵ But with "extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives,"⁶ the Fairness Campaign and its allies changed that.

In 1999, Louisville passed the Fairness Ordinance, which prohibits discrimination based on sexual orientation and gender identity in housing, public accommodations, and employment.⁷ The Fairness Ordinance requires that companies serve gay and lesbian customers and refrain from advertising that they won't serve them.⁸ In the two decades since then, 19 Kentucky communities have passed similar laws.⁹

Chelsey Nelson is a wedding photographer. Like many Americans, she believes that marriage is between one man and one woman. She says the Fairness Ordinance infringes on her free speech and religious liberty rights because it requires her to photograph same-sex weddings just as she photographs opposite-sex weddings.

To cut to the chase, Nelson is likely to win by applying binding precedents and straightforward principles:

• Her photography is art.¹⁰

• Art is speech.¹¹

• The government can't compel speech when it violates the speaker's religious or political principles.¹²

True, photography is wordless. But so too is refusing to salute the flag.¹³ Or marching in a parade.¹⁴ And in the context of a public-accommodations law, when the law has "the effect of declaring [someone's] speech itself to be the public accommodation," the First Amendment applies.¹⁵ A unanimous Supreme Court made that clear twenty-five years ago in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston when it said the state can't require a private organization to include a gay-rights group in its St. Patrick's Day parade.¹⁶

The scope of Hurley aside, this case requires us to confront a larger question at the heart of our nation's promise: Is America wide enough both for you and "a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours"?¹⁷

Just as gay and lesbian Americans "cannot be treated as social outcasts or as inferior in dignity and worth,"¹⁸ neither can Americans "with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth."¹⁹ "They are members of the community too."²⁰ And under our Constitution, the government can't force them to march for,²¹ or salute in favor of,²² or create an artistic expression that celebrates,²³ a marriage that their conscience doesn't condone.

America is wide enough for those who applaud same-sex marriage and those who refuse to. The Constitution does not require a choice between gay rights and freedom of speech. It demands both.

I.

Nelson is a photographer, editor, and blogger.²⁴ She takes engagement and wedding photos with artistic skill.²⁵ She professionally edits the photos she takes as well as those of other photographers.²⁶ She also blogs about weddings.²⁷ For each of these services, her expressive goal is "telling positive stories about weddings because weddings are such significant and joyous events and because she believes marriage is a gift from God that should be treasured and celebrated."²⁸

Nelson is also a Christian. Her faith shapes everything she does, including how she operates her photography studio.²⁹ She believes that marriage is between one man and one woman.³⁰ For that reason, she would decline to photograph a same-sex wedding, and she would decline to edit photos from a same-sex wedding.³¹ She wants to explain these views on her website so she can be up front with potential customers about what she believes and what she will and won't do.³²

Nelson fears that if she declines to photograph a same-sex wedding or declines to edit photos from a same-sex wedding, she will violate the Fairness Ordinance.³³ She also fears that she will violate it if she explains her policy on her website.³⁴ She asks this Court to block Louisville from enforcing the Fairness Ordinance against her.³⁵

II.

The Constitution limits the Court's jurisdiction to only "Cases" and "Controversies."³⁶ So before it can decide anything in a case, the Court must determine if the question before it presents an actual case with an actual controversy.³⁷

A.

One could imagine a court system that prevented a party from challenging a law unless the law had already been enforced against that party. If no enforcement, then no injury, so no case or controversy.

But that is not our system. Nelson has standing to bring pre-enforcement challenges to the Fairness Ordinance's Accommodations Provision³⁸ and Publication Provision³⁹ — and those challenges are ripe⁴⁰ — if she alleges for each that (1) she intends to act in a way that implicates constitutional rights; (2) the provision prohibits what she intends to do; and (3) her intended actions raise "a credible threat of prosecution" under the Fairness Ordinance.⁴¹

Nelson easily clears the first two hurdles for both provisions. She wants to photograph and edit photographs of only opposite-sex weddings.⁴² She also wants to post messages on her website explaining her religious objections to photographing same-sex weddings and editing photographs of same-sex weddings.⁴³ The First Amendment's scope includes blog posts.⁴⁴ And as explained later, it also covers the photographs themselves.⁴⁵

Next, what Nelson intends to do violates the Fairness Ordinance.⁴⁶ Specifically, refusing to photograph same-sex weddings violates the Fairness Ordinance, which prohibits Nelson from denying the "full and equal enjoyment" of her photography service to same-sex couples "on the ground of ... sexual orientation."⁴⁷ So too, does refusing to edit photographs of same-sex weddings.⁴⁸ Nelson's proposed blog posts also violate the Fairness Ordinance, which prohibits her from advertising that she will refuse to photograph same-sex weddings or edit photographs of same-sex weddings.⁴⁹

The third hurdle is taller, but Nelson clears it too. A "credible threat of prosecution" requires an allegation of subjective chill, which Nelson has undeniably alleged,⁵⁰ and "some combination of the following factors: (1) a history of past enforcement against the plaintiffs or others; (2) enforcement warning letters sent to the plaintiffs regarding their specific conduct; and/or (3) an attribute of the challenged statute that makes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action."⁵¹ An additional factor is (4) "a defendant's refusal to disavow enforcement of the challenged statute against a particular plaintiff."⁵²

The second factor cuts in Louisville's favor. No same-sex couple has asked Nelson to photograph their wedding.⁵³ Likely because of that, Louisville hasn't acted against Nelson.⁵⁴ In fact, it says that until she filed this lawsuit, it had never even heard of her.⁵⁵

But the other three factors cut decisively in Nelson's favor. There is "a history of past enforcement": Between 2010 and 2017, Louisville investigated 93 businesses for alleged violations of the Fairness Ordinance.⁵⁶ Louisville refuses "to disavow enforcement of the challenged statute against" Nelson.⁵⁷ And the Fairness Ordinance has "a provision allowing any member of the public to initiate an enforcement action."⁵⁸

Other civil rights agencies can also refer...