Louisville’s Fairness Ordinance, which protects the city’s LGBTQ+ residents from discrimination, has been in place since 1999. Despite last week’s U.S. Supreme Court ruling in a separate case that could weaken such laws, Mayor Craig Greenberg vowed to keep defending the ordinance in court.
In 2022, a federal district judge ruled in favor of Chelsey Nelson, a Louisville wedding photographer who argued the city could not force her to provide her services for a same-sex wedding. The Supreme Court made a similar ruling when it said a Colorado web designer has the right to refuse to design wedding websites for same-sex couples, trumping an LGBTQ+ discrimination law in the state.
Attorney General Daniel Cameron sent a letter to Greenberg earlier this week, asking him to drop the city’s appeal to overturn the district judge’s ruling in favor of Nelson. The case is s cheduled to be argued bef ore the Si xth Ci rcuit Co urt of Appea ls on J uly 2 8. Cameron argued the appeal is “an exercise in futility” and a waste of taxpayer money in light of the Supreme Court’s decision in favor of the Colorado web designer.
“The Supreme Court has spoken. Chelsey Nelson has the right to her conscience and cannot be compelled to speak against it. In the spirit of freedom to which our Founding Fathers pledged their sacred honor, this is the only right and reasonable thing to do,” Cameron wrote.
In response, Greenberg said he had no intention of dropping the appeal and would continue to defend the ordinance.
“The arguments against the Fairness Ordinance and against treating all citizens with respect are not new – they are tired and old arguments from a past that most of us are happy to leave behind. The City of Louisville will continue to defend the Fairness Ordinance and continue working to be an inclusive city where everyone is welcome,” Greenberg said in a statement.
According to experts in civil rights law and the intersection between sexuality and law, the courts still need to determine the bounds of freedom of speech and religion in discriminating against protected classes.
Jack Harrison, a law professor and director of the Center for Excellence in Advocacy at Northern Kentucky University’s Salmon P. Chase School of Law, said there are several key ways that Nelson’s argument differs from the recent Supreme Court ruling.
Nelson not only argues on the basis of free speech and expression, but that compelling her to photograph a same-sex wedding is a violation of her freedom to practice her religion under the First Amendment’s free exercise clause. That argument was not considered in the Supreme Court case, Harrison said.
“Leaving the religion claims aside, there is certainly a basis to continue the appeal if the city of Louisville fundamentally disagrees that [wedding photography] is expression, and we think the lower court got it wrong. Because I think there's at least an argument to be made that photography is different from web design,” Harrison said.
Harrison said he expects the lower courts will be inundated in the years to come with cases testing the boundaries of what business activities count under “expressive” and are therefore protected under the First Amendment, per the Supreme Court decision.
Dan Canon, a civil rights lawyer and visiting law professor at the University of Louisville’s Brandeis School of Law, served as the lead counsel for the Kentucky plaintiffs in the landmark Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage.
According to Canon, neither the Supreme Court decision nor the district court ruling in favor of Nelson overturned fairness ordinances in Louisville or around the country. But as more cases come before the courts, and if what they deem as protected speech is broadened, it could cumulatively weaken the ordinances.
“The groups that are driving these cases hope that they will take down fairness ordinances and other human rights laws that protect LGBTQ+ people from discrimination in issues of public accommodation,” Canon said. “I think the hope is that they're going to take down those kinds of laws in a ‘death by a thousand cuts’ way.”
Harrison said he’s concerned about the possibility of the courts saying any religious objection to a person’s identity is enough to deny service, regardless of if it is deemed an “expressive” action or not. For example, Harrison said it may become possible for a person to argue that serving a LGBTQ+ person in any way is a violation of their religious freedom.
“The question is going to become, ‘How far can you push the religious objection?’” Harrison said. “If the religious objection becomes separated from the requirement of expressive speech, then we're really in a bad place.”
Harrison said he believes that’s why the Supreme Court has shied away from ruling on a religious argument to allow discrimination, which is part of the Louisville photographer’s case.
Chris Hartman is the executive director of the Fairness Campaign, which has worked for the past three decades to pass fairness ordinances across Kentucky. He said neither court case has changed his strategy or the content of the ordinances themselves.
Cities will have to decide for themselves how to implement the ordinances, but Hartman said the courts have more defining to do.
“What I am concerned about is that this is a veritable Pandora's box of exemptions for public accommodations protections,” Hartman said. “Not just for LGBTQ+ people, but for people of color, for people of different religions, [people] from different countries — where will the buck stop in terms of who gets to discriminate and who doesn't? Against whom and for what services?”
