LOCAL

Photographer who opposes gay marriage sues over Louisville's Fairness Ordinance

Courier Journal

A Christian photographer in Louisville who opposes same-sex marriage, but has never been forced to photograph a gay wedding, has sued the city, saying its 20-year-old Fairness Ordinance violates her constitutional rights.

Chelsey Nelson, owner of Chelsey Nelson Photography, alleges in her lawsuit that the city is using “the threat of limitless damages” to force her to “create photographs for, blog about, and participate in solemn ceremonies she disagrees with — same-sex wedding ceremonies."

Her lawyers, including two from Alliance Defending Freedom, a conservative Christian nonprofit that says it defends religious freedom, say the ordinance forces Nelson to "violate the law, forsake her faith or close her business,” and that “these options are unacceptable."

But Chris Hartman, director of the Fairness Campaign, a Kentucky LGBTQ advocacy group, called the suit "ludicrous" and "a fishing expedition." He said he thinks Alliance Defending Freedom is using the suit to try to "undermine civil rights laws across the nation."

Chelsey Nelson:As a Christian, I shouldn't be forced to work same-sex weddings

The suit comes on the heels of a 2018 ruling in which the U.S. Supreme Court said on narrow grounds that Colorado violated the rights of a baker to free exercise of religion when it sanctioned him for refusing to bake a wedding cake for a gay couple.

Similarly, the Kentucky Court of Appeals held in 2017 that a Lexington printer had the free-speech right to refuse to print a T-shirt promoting the city’s annual gay pride festival.

In May 2017 the Kentucky Court of Appeals affirmed, holding 2-1, that the Fairness Ordinance didn't trump the company's right to free speech — including its right to refuse to promote a message it disagreed with.

Nelson's suit names Louisville Metro Government and the Louisville Metro Human Relations Commission Enforcement among its defendants.

The suit asks the U.S. District Court in Louisville to block city officials from enforcing the ordinance on the grounds that its stipulations "violate the United States Constitution’s First Amendment protections for speech, for association, for press, for free exercise of religion, and against establishment of religion and the 14th Amendment protections for due process."

The First Amendment protects the freedoms of religion, speech, assembly and the press. The 14th says government cannot "deprive any person of life, liberty or property, without due process of law."

"Louisville is using the threat of limitless damages, compliance reports, posting of notices, and court orders to force Chelsey to create photographs for, blog about, and participate in solemn ceremonies she disagrees with — same-sex wedding ceremonies," the suit says.

The suit was filed as a "pre-enforcement challenge," meaning that Nelson has not been approached by a same-sex couple, according to the ADF lawyers.

"We don’t force LGBT web designers to create content condemning same-sex marriage for a church," her lawyers say in the suit. "Or force Muslim printers to design anti-Islam flyers for a synagogue. The First Amendment protects these speakers’ freedom. Louisville should not take the same freedom away from Chelsey just because she wants to speak in favor of one particular view on marriage."

Nelson's lawyers, Kate Anderson and Jonathan Scruggs with the Alliance Defending Freedom and Joshua Hershberger with Hershberger Law Office, wrote in the suit that the ordinance is forcing Nelson to either "violate the law, forsake her faith or close her business. These options are unacceptable."

The suit refers people to two directories that list photographers in Kentucky who will photograph same-sex weddings, arguing same-sex couples have other opportunities to get their weddings photographed.

Hartman said the lawsuit is trying to challenge a "provision that has been well-accepted in civil rights statutes across the entire nation for more than 50 years, which says that a business may not post on its business front or I suppose in this case, on its website, that it will not serve protected classes of people."

He said that same ordinance is there to bar a business from keeping out people of a certain religion or of a certain color, too.

"This has been an instrumental part of civil rights laws since the Civil Rights Act passed in 1964," Hartman said.

"And so to challenge it today, nearly 60 years after the Civil Rights Act passed, and 20 years after the Fairness Ordinance passed, is ludicrous and speaks to how low the Alliance Defending Freedom is willing to go to undermine LGBTQ civil rights and in fact, civil rights for all people."

Read:Fairness Campaign leader arrested in protest of Farm Bureau policies

Hartman said that he doesn't think the lawsuit will get far and that it is "frivolous."

Anderson, one of the lawyers, said in a statement that “artists shouldn’t be censored, fined or forced out of business simply for disagreeing with the government’s preferred views."

Scruggs added, "Every American, including photographers and writers, should be free to peacefully live and work according to their faith without fear of unjust punishment by the government."

Hartman said, "There is a balance that has been struck in fairness ordinances with religious beliefs" and churches are protected. "But if you have a business that is open to the public, what is says is that you should be serving everyone.”

Reach breaking news reporter Sarah Ladd at sladd@courier-journal.com. Follow her on Twitter at @ladd_sarah. Support strong local journalism by subscribing today: courier-journal.com/subscribe.

Louisville's Fairness Ordinance

Louisville Metro Ordinance 92.05 states it is an unlawful practice to deny someone "full and equal" enjoyment of goods, services, privileges, advantages and public accommodations based on their race, color, religion, nationality, disability, gender identity or sexual orientation. It furthermore states a person may not publish in any way a communication that suggests a person could be discriminated based on the above criteria. This ordinance excludes restrooms, showers, bath houses and other facilities "which are in their nature distinctly private."