by Sarah Posner
n August, Justin Walker, a federal judge in Louisville, Kentucky, issued an unusual order in favor of Chelsey Nelson, a local wedding photographer and blogger. Nelson, a Southern Baptist, claimed in a lawsuit that her Christian faith dictates “that God ordained marriage to be a covenant between one man and one woman so that this relationship would point people to the special relationship between God and His bride, the church.” Because of this, Nelson contended, she could not provide photography services to same-sex couples, or write about her views of same-sex marriage on her website. Nelson did not report receiving requests for her photography services from any same-sex couples, nor had any government agency investigated Nelson’s business or sought to prevent her from writing about her religious views or any other subject. The Louisville Metro Human Relations Commission, which is charged with enforcing the municipality’s nondiscrimination ordinance prohibiting discrimination on the basis of, among other factors, sexual orientation and gender identity, had never heard of her.
Nelson had a powerful defender in addition to her lawyers at Alliance Defending Freedom, the formidable legal firm that has pioneered the argument that religious freedom collides with LGBTQ rights. The United States Department of Justice filed a “statement of interest” in the case, arguing: “Forcing Ms. Nelson to create expression for and to participate in a ceremony that violates her sincerely held religious beliefs invades her First Amendment rights.
Judge Walker, who had been nominated to the federal bench by President Donald Trump in 2019, waved away the Commission’s argument that Nelson had no viable legal claim. He allowed Nelson’s suit to go forward and entered an order preemptively barring the government from taking an action it had never even contemplated while the case proceeds. Just like gay and lesbian Americans cannot be treated as second-class citizens under the Constitution, Walker wrote, neither can Christians who oppose the Constitutional right to marry. “America is wide enough for those who applaud same-sex marriage and those who refuse to,” he wrote.
The opinion was a victory for Christian-right legal activists who have spent the better part of the past decade building lawsuits to give conservative Christians who oppose LGBTQ rights wide latitude to opt out of complying with state and local laws that prohibit discrimination based on sexual orientation or gender identity. And now, with a growing number of sympathetic judges on the bench, Christian-right activists more firmly established the legal precedent for those claims, carving out exemptions for conservative religious objectors refusing to issue LGBTQ marriage licenses or photograph weddings, or to place foster or adoptive children with same-sex couples.
On the Supreme Court’s docket this term is a case, Fulton v. City of Philadelphia, in which the court will decide whether the city of Philadelphia violated the constitutional rights of a Catholic foster care placement agency when it declined to work with the agency because of its refusal to place foster children with same-sex couples. The case “is of great concern to advocates for children in foster care, the LGBTQ community, members of minority faiths, and states and cities that contract out important government services like foster care to the private sector,” says Leslie Cooper, deputy director of the American Civil Liberties Union’s LGBT & HIV Project. “There is simply no support in the law for the argument that the constitutional right to religious liberty entitles an organization to screen out people based on religious criteria when providing a government service.”
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