The Department of Justice
announced yesterday that it has filed a Statement of Interest (
full text) in
Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20). As
previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment." This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:
Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....
Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”
... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny.... The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.
