Judge Justin Walker, soon to join the DC Circuit, issued a strong free speech decision today in Chelsey Nelson Photography v. Louisville - enjoining the city from applying its public accommodations law to penalize CNP for declining same sex weddings or for advertising its policy.

"To cut to the chase, Nelson is likely to win by applying binding precedents and straightforward principles:
• Her photography is art
• Art is speech
• The government can’t compel speech when it violates the speaker’s religious or political principles."
http://www.adfmedia.org/files/ChelseyNelsonOrderPI.pdf

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 ... advocating at the top of his lungs that which you would [oppose] at the top of yours”?

Just as gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth,”neither can Americans “with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth.”

“They are members of the community too.” ... 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."

Even though Louisville has not enforced the ordinance (because no one has sought CNP's services yet for a same sex wedding), the "subjective chill" of speech along with prior enforcement actions, Louisville's refusal to disavow, and private cause of action = standing.

(I agree. I'd go farther and say that the existence of a law expressly prescribing my conduct should be sufficient for standing. I should be able to trust that the government means what it says. Where the words are clear and prescribe my actions, I should need prove no more.)

Turning to the 1st A, Walker says that photography conveys messages - that's why we have wedding photos at our desk. And that's particularly true of photos that are intended to be enhanced by the photographer to best express that message. Some MAY not be speech, but CNP's are.

This is how the opinion concludes, perhaps echoing the hopes some have expressed that the Court may be moving toward a sort of grand bargain on LGBT rights and free speech/religious liberty.

This is one of several similar cases in the lower courts. The 8th Circuit and Arizona Supreme Court have issued similar decisions. The New Mexico and Washington Supreme Courts have rejected 1st A arguments in similar contexts. The WA case (Stutzman) is pending cert.

I find the argument that photography is NOT expressive to be challenging to maintain. And with that accepted, compelling speech violates the 1st A.

If the Court breathes life back into the free exercise clause this term in Fulton it may make these cases easier. But even so, I believe Walker is right that protecting free speech in these cases is critical in a pluralistic society.