Justice Department weighs in on Kentucky religious freedom case

Washington D.C., Feb 28, 2020 / 15:00 pm

The Department of Justice on Thursday registered its support for the religious freedom case of a Kentucky photographer in a lawsuit over a city anti-discrimination ordinance.

"The central question presented in this case is whether the government can compel a wedding photographer to photograph, provide photography editing services for, and blog about weddings of which she does not approve, and does not wish to photograph or to promote," the Justice Department (DOJ) said in a statement of interest in the case filed on Thursday. 

"The answer is no," the Justice Department concluded.

The case of photographer Chelsey Nelson is currently before a federal district court in Kentucky. Nelson, a photographer with her own business, sued the city government of Louisville over an ordinance she says would compel her to violate her religious beliefs and serve certain types of weddings, including same-sex weddings.

"Ms. Nelson has a practice of 'declin[ing] requests for wedding celebration and boutique editing services if the request required [her] to use [her] artistic talents to promote or positively portray anything immoral, dishonorable to God, or contrary to [her] religious beliefs'," the DOJ stated.

Alliance Defending Freedom, which represents Nelson, applauded the DOJ's statement on Friday.

"Chelsey serves all people. But the Louisville government is trying to compel Chelsey's speech, force her participation in ceremonies she objects to, and eliminate her editorial control over her photographs and blogs," ADF senior counsel Jonathan Scruggs stated Feb. 28.

The "Metro Ordinance" in question, of Louisville city and Jefferson County, Kentucky, is an anti-discrimination ordinance for businesses and other places of "public accommodation, resort, or amusement." Two of the protected categories under the law are "sexual orientation or gender identity."

Under the law, businesses cannot deny goods and services on the grounds of sexual orientation and gender identity, as well as other classes, nor can they post notices saying they could do so.

Nelson filed a complaint over the ordinance, saying that the city "is using the threat of limitless damages, compliance reports, posting of notices, and court orders" to compel business owners like her to "participate in solemn ceremonies she disagrees with-same-sex wedding ceremonies."

The Metro Ordinance is an unconstitutional violation of free expression, DOJ argued.

"Photography," the DOJ said, "is an expressive art form," including at a wedding where the "photographer makes numerous artistic and viewpoint-based judgments" through which "to convey meaning and ideas through photography and editing."

To compel a photographer "to create expression for and to participate in a ceremony that violates her sincerely held religious beliefs invades her First Amendment rights in a manner akin to the governmental intrusion in Hurley," the DOJ said, referencing the 1995 case of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc.

Scruggs said that he hopes the Supreme Court will take up the similar case of Washington florist Barronelle Stutzman in Arlene's Flowers v. State of Washington as a companion to the case of Fulton v. City of Philadelphia, which concerns the city's decision to sever ties with Catholic Social Services over access to foster placement for same-sex couples.

Stutzman has appealed to the Supreme Court for a second time after the Washington state supreme court again ruled against her early in 2019. She had been sued by the ACLU and the state for declining to serve a same-sex wedding.

"Without the Supreme Court's intervention in Barronelle's case," Scruggs said, "state and local government officials will continue to threaten sincere people of faith like Barronelle and Chelsey with severe penalties for living out their beliefs in the public square."

Last year, the Kentucky state Supreme Court ruled in favor of a Christian business owner who declined to serve an LGBT pride festival, and who was punished by a local government for discrimination.