As long as those “two good forgivers” are not gay

A photographer in Louisville, KY does not approve of same-sex marriage. Chelsey Nelson, owner of Chelsey Nelson Photography has never been asked to photograph a same-sex marriage. Yet, Ms. Nelson has engaged Alliance Defending Freedom — an anti-LGBTQ hate group — to sue the city for her “constitutional right” to decline service.

Nelson alleges in her lawsuit that the city is using “the threat of limitless damages” to force her to create photographs for, blog about, and participate in solemn ceremonies she disagrees with. The case is captioned Chelsey Nelson Photography LLC v. Louisville/Jefferson County Metro Government and it is filed in the United States District Court for the Western District of Kentucky.

Nelson is also represented by Joshua D. Hershberger, an Indiana attorney who is a self-promoting Christian minister and author.

Five years ago the Supreme Court declined to hear an identical case, Elane Photography v. Willock. The refusal allowed a lower court ruling to stand that Elane Photography did, in point of fact, violate New Mexico nondiscrimination laws.

In the Elane Photography case, Cato Institute, Eugene Volokh and Dale Carpenter filed an amicus brief asking the Supreme Court to hear the case. I believe that Mr. Carpenter is gay. They believed that photography is an artistic endeavor and that the photographer would be required to attend the ceremony that he or she disapproves of. The same two filed an amicus brief in Masterpiece Cakeshop v. Colorado. In that case they said that the baker does not have a right to discriminate.

In other words, they are making judgments about what is sufficiently artistic to warrant an exemption from applicable laws. Who is a qualified arbiter?

I understand Volokh’s and Carpenter’s view in Elane Photography and these are two exceptionally smart lawyers. However, I respectfully disagree.

If we accept the proposition that a photographer has a right to discriminate then that is based on two judgments:

  • The validity of the religious objection and;
  • Whether or not the enterprise is sufficiently artistic to warrant protection.

A member of a Christian Identity church has a potentially valid religious objection that would preclude serving blacks and Jews. Eugene Volokh is also a computer expert. He might believe that his code is an act of artistry. Who gets to decide?

Additionally, I take the position that laws represent the will of the citizenry. The people who effect any measure are presumably the elected representatives of the people. The Louisville ordinance was enacted 20 years ago and it does not include a religious exemption.

The presence of a religious exemption would make the law entirely unenforceable. You don’t have to take my word for that. Justice Scalia reached that conclusion in Employment Division v. Smith.

Legal arguments aside, a public accommodation cannot exist without the state and municipal subsidies that are paid for by all taxpayers. These include the roads that bring people to the business, the police and fire departments that protect the business and the infrastructure that provides a host of other services. LGBTQ people indirectly subsidize every public accommodation.

Then consider discrimination based upon religious disapproval. Nondiscrimination laws exist to eliminate a proprietor’s approval from providing goods and services. I am sure as hell not qualified in the area of theology but I am pretty sure that I understand scripture as defined by Christian literalists. We are not asking anyone to do anything that is proscribed by religious teachings. Scripture prohibits gay sex.

At the end of the day I am sick and tired of this bullshit, the litigation and ADF’s media promotions about Religious Freedom™. Above all, I am sick and tired of the stress that these schmucks place on the LGBTQ community. That photographer does not approve of Jewish, Muslim, Hindu and Buddhist weddings either. They are just as contrary to evangelical Christianity as same-sex weddings. However, she wouldn’t dare decline to service one.

It causes me to ask:

Why are we so fucking special?

My theory is that we are the last minority group that people feel empowered to discriminate against. Conservative Christians are obsessed with the false notion that we are soliciting their approval. They then conflate service with approval. They then feel a sense of power from being able to demonstrate their disapproval which they do by refusing service.

Ultimately they are inflating their egos at our expense.

Hearing this case is a young judge and Trump appointee Justin R. Walker. Walker is a graduate of Harvard Law. We can reasonably assume that he was the choice of Mitch McConnell. Walker clerked for Justice Kennedy … and then Kavanaugh. The ABA rated him unqualified by virtue of not having enough experience.

Related content:

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.