Justin Walker, an ambitious and controversial young federal judge, first gained attention when he enjoined the Louisville , Kentucky Mayor's directive limiting drive-in church services. Walker's opinion in On Fire Christian Center could be said to be on fire itself as its rhetoric was super-heated.
Now Walker has enjoined enforcement of a Louisville ordinance which demands equal treatment of people regardless of sexual orientation. Chelsey Nelson, a wedding photographer, claimed violation of her rights by an ordinance that barred her from advertising that she does not accept same-sex wedding assignments.. Although she had no such customers or prospects Walker found the matter ripe and issued a preliminary injunction on behalf of Nelson enjoining enforcement of the Louisville ordinance.
fn 133 Nelson’s suit does not present two questions that would undoubtedly be more difficult for a plaintiff to prevail on — questions on which the Court takes no position. The first is a hypothetical with all the same facts as Nelson’s case, except the same-sex couple lives in a small town without another photographer. See Oral Argument, August 7, 2020 (Court: “So maybe in that small town [where there is only one vendor for a wedding service, you think] the government would survive the strict scrutiny analysis. Is that what you’re saying?” Nelson: “I’d say perhaps, Your Honor.”).
The second is a hypothetical case with all the same facts as Nelson’s case, except the photographer refuses to photograph an interracial wedding. See id. (Nelson: “I think that would be different. . . . Loving said that objections to interracial marriage are inherently based on invidious racial discrimination designed to maintain white superiority. That’s a quote. Versus we look at Obergefell where it said that objections to same-sex marriage are based on decent and honorable religious and philosophical principles. . . . [T]hen you go to . . . Peña-Rodriguez versus Colorado, where it specifically said racial bias is a unique constitutional harm. . . . So I think the interest analysis would be much stronger for the state . . . .”); see also id. (Louisville: “It would be erroneous to suggest that somebody like Miss Nelson, who has the views that she has, should be viewed in the same way as somebody who opposed mixed-race marriage. So the position of [Louisville] Metro is not to build up any type of equivalence there or to cast aspersions and say that you’re as bad as a racist if you believe in traditional marriage. That’s not a position that we need to endorse here.”); but see id. (Louisville: “I don’t think there’s any principled basis to distinguish how compelling is the state interest in rooting out invidious racial discrimination versus evaluating how compelling is a state or local government’s interest in eradicating invidious discrimination against sexual orientation.”).
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