The Fairness Ordinance for Louisville, Kentucky was enacted in 1999. The purpose of the ordinance is to prohibit LGBTQ discrimination in employment, housing, and public accommodations. Yet with the help of Alliance Defending Freedom (ADF), which is deemed a hate group by the Southern Poverty Law Center, photographer Chelsey Nelson filed a lawsuit against the city claiming the ordinance would, according to the text of the suit, “force Chelsey to create photographs for, blog about, and participate in solemn ceremonies she disagrees with—same-sex wedding ceremonies.”
Even though Nelson had not been forced to photograph same-sex wedding ceremonies before the lawsuit was filed in November 2019, the ADF employed a tactic called pre-enforcement challenge. In a release concerning the lawsuit, ADF Senior Counsel inferred:
“The government must allow artists the freedom to make personal decisions about what art they can and can’t create. No matter one’s views on marriage, we all lose when bureaucrats can force citizens to participate in religious ceremonies they oppose or to speak messages they disagree with. On countless other topics, photographers and other artists can freely choose the stories they tell. Chelsey simply asks for the same freedom.”
On Friday, August 14, Justin Walker, a judge for the U.S. District Court for the Western District of Kentucky, ruled in Nelson’s favor. In his opinion, Walker wrote:
“Just as gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’ neither can Americans ‘with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth… Under our Constitution, the government can’t force them to march for, or salute in favor of or create an artistic expression that celebrates 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.”
Walker is among the 200 justices Donald Trump has appointed in his time as president and even though Walker was rated as ‘not qualified’ by the American Bar Association when first nominated, he was approved by the Senate in a vote of 51-42.
This isn’t the first time the ADF has used the litigious strategy of pre-enforcement challenge nor will this be the last challenge. In July, the ADF filed a pre-enforcement challenge in Cuyahoga County, Ohio on behalf of Kristi Stokes and her company Covenant Weddings. ADF asserts that a law in Cuyahoga County “would force her to celebrate and participate in ceremonies that violate her beliefs.”