DOJ Defends Photographer Who Nixes Same-Sex ‘Wedding’

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by Bradley Eli, M.Div., Ma.Th.  •  ChurchMilitant.com  •  March 4, 2020   

Officials: 'Chelsey Nelson is likely to succeed on her claim'

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WASHINGTON (ChurchMilitant.com) - The Department of Justice (DOJ) is protecting a young female photographer from having to participate in same-sex "weddings" against her conscience.

The DOJ filed a "Statement of Interest" in federal court on Thursday explaining that a law in Louisville, Kentucky violates the U.S. Constitution by compelling local Chelsey Nelson to photograph gay weddings.

The U.S. brief explains that Nelson "is likely to succeed on her claim that requiring her to photograph weddings against her conscience constitutes government-compelled speech that violates the Free Speech Clause of the First Amendment," according to a DOJ press release issued Thursday.

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The Louisville-based photographer sued the Louisville/Jefferson County metro government in November owing to the city's "fairness ordinance" that made it illegal for her to refuse to photograph same-sex "weddings."

The First Amendment forbids the government from forcing someone to speak in a manner that violates individual conscience.

The law further forbids Nelson from using her website or social media to explain to potential customers the religious reasons behind her exclusive support for heterosexual wedding ceremonies.

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Chelsey Nelson

Alliance Defending Freedom (ADF), the non-profit legal organization that filed Nelson's lawsuit, states that Louisville is trying to force Nelson to participate in ceremonies to which she objects and to silence her objections.

"It's unlawful to coerce an artist to create messages against her will and intimidate her into silence just because the city disagrees with her beliefs," Senior ADF Counsel Johathan Scruggs asserted.

In her lawsuit, Nelson was seeking a preliminary injunction from the court shielding her from the Louisville law, which she says would force her to close her business.

The DOJ confirmed the issue was the Louisville law that "prohibits businesses from discriminating on various bases, including on sexual orientation."

The law at issue was brought into greater focus by ADF:

Specifically, the lawsuit challenges Louisville Metro Ordinance § 92.05, a public accommodation law that threatens Nelson with unspecified damages, compliance reports and court orders to force her to participate in and to create photographs and blogs praising same-sex wedding ceremonies — all because she does the same to celebrate weddings between a man and a woman.

"Forcing someone to violate their conscience is against the First Amendment," according to Eric Dreiband, assistant attorney general for the Civil Rights Division of the DOJ.

"The First Amendment forbids the government from forcing someone to speak in a manner that violates individual conscience," said Dreiband.

In July 2018, the DOJ announced the formation of the Religious Liberty Task Force. Attorney General William Barr in October discussed this task force while detailing how President Donald Trump's administration is fighting for the religious liberty of each American:

We have set up a task force within the Department with different components that have equities in this area, including the Solicitor General's Office, the Civil Division, the Office of Legal Counsel and other offices. We have regular meetings. We keep an eye out for cases or events around the country where states are misapplying the Establishment Clause in a way that discriminates against people of faith, or cases where states adopt laws that impinge upon the free exercise of religion.

In discussing the brief, the DOJ explained how the Louisville law violated Nelson's right to free speech as protected under the First Amendment.

"The Free Speech Clause prohibits the government from requiring people to engage in speech supporting or promoting someone else's expressive event, such as a wedding ceremony," read the statement.

It then detailed how weddings are considered "expressive activities" by the courts and photography to be a form of "expressive art":

The brief observes that "weddings are sacred rites in the religious realm and profoundly symbolic ceremonies in the secular one" and thus are plainly "expressive activities" under the Supreme Court's free speech cases. Moreover, the brief explains, photography is an expressive art form, and wedding photography in particular seeks to celebrate and honor the union being photographed.  

Thus it concluded, "Forcing a photographer, against her conscience, to express her support for a wedding that her faith opposes violates the Constitution."

Louisville is targeting dissent against same-sex "marriage," asserted ADF.

It's unlawful to coerce an artist to create messages against her will.

"On countless other topics, photographers and other artists can freely choose the stories they tell. Chelsey simply asks for the same freedom," noted ADF.

The DOJ affirmed its commitment to protecting the religious liberty of all Americans.

"The U.S. Department of Justice will continue to protect the right of all persons to exercise their constitutional right to speech and expression," promised Dreiband.

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