Chelsey Nelson Photography LLC v. Louisville/Jefferson Cnty. Metro Gov't
| Decision Date | 30 August 2022 |
| Docket Number | 3:19-cv-851-BJB |
| Parties | Chelsey Nelson Photography, LLC, et al. Plaintiffs v. Louisville/Jefferson County Metro Gov't, et al. Defendants |
| Court | U.S. District Court — Western District of Kentucky |
Does “applying a public-accommodation law to compel an artist to speak or stay silent violat[e] the Free Speech Clause of the First Amendment?” The Supreme Court recently granted review of a case asking that question 303 Creative LLC v. Elenis, 142 S.Ct. 1106 (mem.) (Feb. 22, 2022), which mirrors the dispute here. Chelsey Nelson is a wedding photographer opposed to same-sex marriage on moral and religious grounds. She sued the City of Louisville under the First Amendment and Kentucky law to shield herself from enforcement of Louisville's “Fairness Ordinance,” a public-accommodations law that guarantees equal access to goods and services regardless of sexual orientation. Under that law Nelson must photograph same-sex weddings if she photographs opposite-sex ceremonies. Metro Ord. § 92.05(A). And she may not express her unwillingness to do so or otherwise make same-sex couples feel “unwelcome.” § 92.05(B).
Courts across the country have addressed whether bakers, florists website designers, and other creative professionals must either provide their services for weddings that violate their beliefs or else abstain entirely from the wedding business.[1] And those courts' disagreement on whether this amounts to prohibited discrimination or protected dissent is what the U.S. Supreme Court has set out to resolve during its upcoming term.
This split is one result of the remarkable and rapid change in the legal treatment of same-sex relationships in this country. In 2015 the Supreme Court interpreted the Constitution to require states to authorize same-sex marriages in Obergefell v. Hodges, 576 U.S. 644. Even before that decision, but especially since, the nation's courts and lawmakers have struggled to reconcile the new legal orthodoxy with the dissenting views and voices of those whose religious faith leads them to maintain what was until recently the status quo. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court approached the question, but didn't make it all the way down the aisle. 138 S.Ct. 1719 (2018). It ruled narrowly that Colorado's public-accommodations law couldn't force a particular baker to supply a custom wedding cake for a same-sex ceremony because public officials investigating that baker expressed hostility toward his position and faith. Id. at 1732. But the Court didn't resolve the underlying constitutional question regarding the tension between the First Amendment and Colorado's public-accommodations law.[2]
This is a real conflict between nondiscrimination and speech that cannot be wished away: compelling access for all necessarily clashes with the liberty of some. The City contends that Nelson's speech demeans same-sex couples, while Nelson says the City's Ordinance demeans her speech. How to resolve these competing considerations? As a matter of morality and philosophy, different people-operating in good faith-will surely assign different weights to the equality dignity, and liberty interests this dilemma implicates. But as a matter of constitutional law, judges do not-or at least should not-decide cases by balancing their own personal assessments of such important and incommensurable concepts.
Instead judges must look somewhere less cosmic: the law. One of the most basic provisions of constitutional law specifies that when federal and state or municipal law conflict, federal law takes precedence. See U.S. CONST. ART. VI, CL. 2. IN GENERAL, STATUTES LIKE THE FAIRNESS ORDINANCE DON'T CONFLICT WITH THE CONSTITUTION. PUBLIC-ACCOMMODATIONS LAWS ARE GENERALLY PERMISSIBLE. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 572 (1995). State and local governments have broad authority to regulate commercial activity and prohibit discriminatory conduct. See, e.g., New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11-16 (1988). The First Amendment's protections for religious exercise, moreover, are unlikely to help those in Nelson's position: at least as currently construed, that aspect of the Constitution does not shield people whose sincerely held religious beliefs conflict with generally applicable laws. See Fulton v. City of Philadelphia, 141 S.Ct. 1868, 1876-77 (2021).
But the government's authority over public accommodations does not extend to “abridging the freedom of speech.” U.S. CONST. AMEND. I. WHETHER A GIVEN SERVICE COUNTS AS SPEECH WILL OF COURSE REQUIRE COURTS AND LITIGANTS TO GRAPPLE WITH DIFFICULT EDGE CASES. YET THE U.S. SUPREME COURT HAS LONG GIVEN “SPEECH” A CONSTRUCTION BROAD ENOUGH TO INCLUDE NELSON'S PHOTOGRAPHY AND BLOGGING, AS A PREVIOUS DECISION IN THIS CASE RECOGNIZED. See Chelsey Nelson Photography v. Louisville/Jefferson County Metro Gov't, 479 F.Supp.3d 543, 548 (W.D. Ky. 2020). The Constitution protects this expression in both positive and negative ways: the government generally may neither muzzle citizens from expressing the content of their choice, nor compel them to express content they find objectionable. United States v. United Foods, Inc, 533 U.S. 405, 410 (2001). And even in service of an otherwise valid publicaccommodations law, the government may not “declar[e] the sponsors' speech itself to be the public accommodation.” Hurley, 515 U.S. at 573.
So 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. Because speech is categorically different under the federal Constitution, local laws must treat it differently, too. “[O]ne who chooses to speak may also decide what not to say,” id. at 573 (quotation omitted), and the “choice of a speaker not to propound a particular point of view ... is presumed to lie beyond the government's power to control,” id. at 575. However worthy and widely supported the government's commitment to equal access and respectful speech, these are concerns the First Amendment resolves in favor of the dissenting speaker. Id. at 57276.
The City treats the equal status of same-sex marriages as fixed. As a matter of law, it is. See Obergefell, 576 U.S. at 681 (). But today's dispute concerns whether the government may conform speech to that development. Under the First Amendment, it may not. The freedom of speech-especially for minority views-is a core premise of our democratic republic. See, e.g., Turner, 512 U.S. at 641. As prevailing sentiments and politics have changed over the years, robust constitutional protection for differing views has remained fixed. Few issues demonstrate that constancy as much as the legal treatment of same-sex relationships. Not so many years ago, and in some ways still today, the First Amendment was necessary to protect the discourse of same-sex couples and their supporters. See, e.g., Jason M. Shepard, The First Amendment and the Roots of LGBT Rights Law: Censorship in the Early Homophile Era, 1958-1962, 26 WM. & MARY J. RACE, GENDER, & SOC. JUST. 599, 614-661 (2020). SPEECH PROTECTIONS UNDOUBTEDLY HELPED OVERCOME “THE CENSORIAL EFFORTS OF THE DOMINANT culture, authoritarian politicians, and aggressive law enforcement.” Id. at 601-02. And today the First Amendment protects the old majority, newly in dissent. Then, as now, “the law [wa]s free to promote all sorts of conduct in place of harmful behavior”-or at least behavior the government perceived as “harmful.” Hurley, 515 U.S. at 579 (emphasis added). But now, as then, the government is “not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” Id. (emphasis added).
“If there is any fixed star in our constitutional constellation,” the Supreme Court reminded us long ago-in another dispute over dissenting views on sensitive questions of faith and freedom-“no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). The Supreme Court has continued to navigate by that star through changing currents of speech and conscience. And lower courts are bound to follow. Because the U.S. Constitution supersedes Louisville's Fairness Ordinance as a matter of law, this Court enjoins the City from either compelling or suppressing Nelson's photography and writing.
Chelsey Nelson is a photographer who uses images and words to celebrate the union of marriage. Chelsey Nelson Decl. (DN 92-2) ¶¶ 75-99. She takes engagement and wedding photos, whose lighting and mood she edits to present her clients in a beautiful and celebratory manner. ¶¶ 151-272. Nelson writes a blog about each wedding to highlight her clients' marriages. ¶¶ 268-71 (describing “weddingcelebration” package). She also uses the blog to promote her services to potential clients. ¶¶ 272, 282. And she provides editing services to other photographers, so long as doing so wouldn't “require [her] to use her artistic talents” to promote anything “contrary to [her] beliefs.” ¶¶ 191-207, 308, 330-36.
Nelson is also a Christian whose faith and beliefs “shape every aspect of [her] life,” including the way she serves her clients and manages...
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