The meaning of Judge Walker’s “Nelson decision”

September/October 2020

“When we filed our amicus brief in this case, we knew it could be BIG. IT IS!” Martin Cothran, senior policy analyst for TFF.

This case requires us to confront a larger question at the heart of our nation’s promise: Is America wide enough both for you and ‘a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours’?”

That was the observation of U.S. District Judge Justin Walker, when he released his decision upholding the free speech and religious liberty of a Louisville wedding photographer on Aug. 14.

Chelsey Nelson believes that God gave her a passion for photography and storytelling so she could present marriage between one man and one woman as something created by God, worthy of celebration and honor.

She challenged Louisville’s so-called “Fairness Ordinance,” which elevates sexual orientation and gender identity to a higher level of protection. Similar ordinances and laws have been used in Lexington and throughout the nation to punish Christian business owners.

Walker’s resulting legal opinion is a significant victory that will likely be cited throughout the nation, as courts weigh how to proceed when our nation’s most sacred First Amendment rights and the new-found rights of the LGBT community clash.

Here are key takeaways from Walker’s opinion:

Photography is Speech:

Pointing to the U.S. Supreme Court’s holding that photography is speech and the Sixth Circuit Court of Appeals’ finding that it is art, Walker emphasized that words are not necessary for speech.

People of Faith Are Not Outcasts or Inferior:

Walker wrote that “Americans ‘with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth’” does not mean they can “be treated as social outcasts or as inferior in dignity and worth’”; “‘They are members of the community too.’”

Government Cannot Compel Speech or Violate Conscience: Walker was clear on the legal principle: “government can’t compel speech when it violates the speaker’s religious or political principles.”

He went on to emphasize that “the government can’t force [people of faith] to march for, or salute in favor of, or create an artistic expression that celebrates, a marriage that their conscience doesn’t condone.”

This is consistent with the U.S. Supreme Court’s trend of protecting religious liberty to the nth degree, even when LGBT rights are involved.

Walker’s opinion adds the U.S. District Court Western District of Kentucky to a growing list of courts that have recently protected people of faith in the public sphere.

The Eighth Circuit did so in a case about wedding videography, declaring that the government cannot compel anyone “to talk about… same-sex marriages” simply because they choose “to talk about… opposite-sex marriages.”

The Arizona Supreme Court protected the creation of custom wedding invitations, concluding that applying the so-called “Fairness” law “coerces” individuals into “abandoning their convictions, and compels them to [communicate] celebratory messages” they disagree with.

Walker clearly answered the larger question at the heart of our nation’s promise: “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.”

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