Kan. AG aids cause of photographer opposed to working same-sex ceremonies

By SHERMAN SMITH
Kansas Reflector

TOPEKA — Attorney General Kris Kobach signed an appellate court brief in support of a Kentucky photographer’s objection to potentially being compelled to serve clients at a same-sex wedding.

Kobach, a Republican who took office in January, added Kansas to a list of 21 states backing Louisville photographer Chelsey Nelson’s challenge of a city ordinance that forbid her from advertising she only worked opposite-sex ceremonies because those events were inconsistent with her beliefs. The amicus brief embraced by Kobach was filed by the Kentucky attorney general in the U.S. Court of Appeals.

Anthony Powell, Kobach’s solicitor general in Kansas, said the case resembled that of a Colorado baker who said his Christian beliefs forbid him from making a wedding cake for a gay couple in 2012.

The U.S. Supreme Court decided in 2018 a Colorado state court was wrong to find the baker engaged in unlawful discrimination, but that opinion wasn’t extended by the Supreme Court to florists, photographers and others who refused to work with gay couples.

“When the state of Colorado tried force a baker to create designs antithetical to his beliefs, so many Americans were outraged that the phrase ‘you will bake the cake’ has entered our nation’s lexicon,” Powell said. “In this case, a photographer in Louisville, Kentucky, is being forced to create images which are contrary to her deeply held beliefs.”

Powell said the Kansas attorney general’s office took the view government shouldn’t compel speech, especially when that speech was offensive to the individual compelled to speak.

“We are joining other states in an amicus brief defending this photographer and her First Amendment rights,” Powell said.

According to court records, the Kentucky photographer had never been forced to photograph a same-sex wedding. The photographer’s attorneys urged the Court of Appeals to uphold a federal district judge’s ruling that protected her religious liberty and free speech rights.

Kobach joined attorneys general from Oklahoma, Nebraska, Iowa, South Dakota and Texas on the appellate brief.

In 2019, Nelson filed a lawsuit alleging Louisville’s “fairness ordinance” violated her constitutional rights and that she couldn’t be directed by the city to accept jobs photographing same-sex weddings. A U.S. District Court judge issued a 44-page ruling granting an injunction against the city’s ordinance, declaring the fairness ordinance couldn’t trample First Amendment rights.

The perspective endorsed by Kobach, captured in the amicus brief, said: “In the end, although Louisville’s interest in preventing discrimination must give way here, its ordinance retains its full force in most situations. All the city cannot do is directly force Nelson to speak in a way that sends a message with which she deeply disagrees. And that’s a good thing.”

The ACLU of Kentucky, however, filed its own amicus brief in January asking the appeals court to uphold Louisville’s LGBTQ anti-discrimination protections. The brief asked the appellate court to reverse the lower court judge ruling opening the door for businesses to deny service to LGBTQ people.

Louisville’s anti-discrimination anti-discrimination ordinance bars businesses open to the public from refusing service to customers based on clearly defined innate characteristics, including a customer’s sexual orientation.

“Louisville Metro Government unquestionably has the authority to prohibit businesses within its borders from discriminating against LGBTQ people in the sales of goods and services to the general public,” said Corey Shapiro, legal director at ACLU of Kentucky. “If a business needs to know who the service is for to decide whether it will provide those services, that is identity-based discrimination.”