DOJ Backs Photographer Over Free Speech Claim

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
March 1, 2020Updated: March 1, 2020

The Justice Department (DOJ) has filed a brief in a federal court defending a photographer who is challenging a law that would force her to work at same-sex weddings in violation of her religion.

The department filed a statement of interest at a district court in Kentucky on Feb. 27, saying that the photographer, Chelsey Nelson, is likely to succeed in her lawsuit against Louisville/Jefferson County Metro Government and its officials over a law that requires her to photograph same-sex weddings against her conscience.

The department said the law violates the free speech clause of the First Amendment, as the clause prohibits the government from compelling people to engage in speech that supports or promotes another person’s expressive event, such as a wedding ceremony.

“The First Amendment forbids the government from forcing someone to speak in a manner that violates individual conscience,” Eric Dreiband, assistant attorney general for the Civil Rights Division, said in a statement.

In the case at hand, Nelson, a Christian, owns and operates a photograph studio in Louisville, Kentucky, according to the brief (pdf). She says she uses her photography to tell stories and declines requests for wedding celebrations and boutique editing services that require her to use her skills to portray “anything immoral, dishonorable to God, or contrary to [her] religious beliefs.”

She said she wouldn’t provide services for wedding celebrations for certain types of weddings, including same-sex weddings, because it contravenes her belief that marriage is between a man and a woman. But she said she would provide other services to individuals regardless of sexual orientation.

Nelson sued the county government, seeking to block any enforcement action against her for violating its ordinance prohibiting discrimination in public accommodations based on sexual orientation.

The lawsuit centers around whether a government can force wedding photographers to provide services at weddings that they don’t wish to photograph or promote.

The department has previously filed statements of interest to support parties in religious freedom cases.

In 2018, the DOJ formed a religious liberty task force to coordinate its work on religious liberty litigation and policy, and to implement former Attorney General Jeff Sessions’s 2017 religious liberty guidance that provides guidance to the executive branch on how to apply existing protections in federal law.

“Those include the principle that free exercise means a right to act—or to abstain from action. They include the principle that government shouldn’t impugn people’s motives or beliefs,” Sessions said at the time.

“In short, we have not only the freedom to worship, but the right to exercise our faith,” he said. “The Constitution’s protections don’t end at the parish parking lot, nor can our freedoms be confined to our basements.”