Sixth Circuit judges Friday will consider the reach of a new US Supreme Court ruling when they hear Louisville’s appeal of an injunction barring enforcement of its public accommodations law against a Christian photographer who doesn’t want to provide services for same-sex weddings.

In 303 Creative LLC v. Elenis, a 6-3 majority on June 30 ruled in favor of a Christian website designer, holding that the US Constitution requires allowances from public accommodations laws for businesses that engage in expressive activities.

Chelsey Nelson Photography LLC, which won its injunction in August 2022, could see that win upheld because of the justices’ ruling in 303 Creative.

A decision by the US Court of Appeals for the Sixth Circuit on Louisville’s appeal could be based on a straight application of 303 Creative’s holding that the business’s owner, Lorie Smith, can decline to provide wedding-related services for LGBTQ couples under the First Amendment, attorneys familiar with the case told Bloomberg Law.

Or it could signal that federal courts will struggle to apply 303 Creative’s holding, which some say was driven by unique circumstances, when determining whether other types of public businesses that provide services that include an element of expressive speech or conduct are protected by the First Amendment.

The 303 Creative decision “is not dispositive of this appeal,” Louisville said in a supplemental brief filed at the Sixth Circuit’s request after 303 Creative was decided. The outcome on Smith’s free speech claims turned on stipulated facts and there are numerous contested facts in Chelsey Nelson’s case, the county said.

Chelsey Nelson’s attorney, Jonathan A. Scruggs, told Bloomberg Law that her lawsuit lines up with 303 Creative and “in some ways” presents a clearer case for applying the First Amendment, despite the absence of stipulated facts. Scruggs is with the Alliance Defending Freedom, which also represented Smith in 303 Creative.

Louisville is appealing a summary judgment ruling, so there are “about 900 pages of undisputed facts” before the Sixth Circuit, Scruggs said. The county also conceded that it will enforce its public accommodation ordinance against Chelsey Nelson, he said.

Stipulation’s Significance Debated

Among the stipulated facts in 303 Creative was an agreement that wedding websites Smith said she planned to create will be customized, expressive, and convey her religious belief that marriage is strictly between one man and one woman.

That unique stipulation, which isn’t mirrored in Chelsey Nelson’s case, was key to the majority opinion in 303 Creative, employment litigator Frank B. Shuster said.

From there, the majority’s “constitutional conclusions flowed pretty-easily downhill” and led it to conclude that Smith’s websites are “pure speech” shielded by the First Amendment, Shuster said. The stipulation on expression sealed the fate for Colorado, despite its law barring anti-LGBTQ bias by businesses that offer services or products to the public, he said.

But University of Texas law professor Elizabeth W. Sepper sees the 303 Creative stipulation as a bit of a red herring. Courts can find facts for themselves, she said.

“In some ways, this dispute is so similar to 303,” Sepper said. “You have a wedding vendor” engaged in a type of activity that people might think of as artistic, but doing so through a commercial business.

Louisville’s law is also similar to the one at issue in 303 Creative, the professor said. And Chelsey Nelson, like Smith, doesn’t have much of a track record of providing the type of wedding-related services that she claims will involve expressive content, she said.

From Explicit to Implicit

The two cases, however, may be different in other ways, Sepper said. So a Sixth Circuit ruling for Chelsey Nelson would still expand 303 Creative’s holding, she said.

Chelsey Nelson wants to discriminate both at the moment of engagement and the moment of marriage, Sepper said. That would be one extension of 303 Creative’s holding, she said.

Another would be that 303 Creative focused on written expression while Chelsey Nelson’s case also involves images, Sepper said. A third would be that Colorado had a pattern of enforcing its law in contexts similar to Smith’s. There doesn’t seem to be that past enforcement history in Chelsey Nelson’s case, Sepper said.

The move in Chelsey Nelson’s lawsuit “is to expand from the explicit expression of a message to implicit expression,” Sepper said.

Significant Litigation Predicted

Shuster, litigator Iván Resendiz Gutierrez, and the ACLU—which is backing Louisville as an amicus—all see the potential for a swell of post-303 Creative litigation.

Lower courts are going to grapple with various issues when deciding whether speech or conduct by a business open to the public is expressive and protected by the First Amendment, they said. These will include whose speech it is, the business’s or the customer’s.

There “can be a real overlap” between speech and commercial services, Shuster said. It could be a while before the issue makes its way back to the Supreme Court for a definitive ruling on the contours of the distinctions between protected expression and speech, and unprotected products and services, he said.

It seems like 303 Creative opened the door to “pure speech” arguments in other contexts, Gutierrez said. The dissent in 303 Creative correctly anticipates that there will be significant litigation on these unresolved issues, he said.

Justice Sonia Sotomayor’s dissent uses the example of professional photographers, including those who shoot portraits, take school photos, prepare corporate headshots, and provide passport services.

That portion of the dissent highlights the difficulty of determining when a business engages in pure speech, Gutierrez said. People disagree widely on “what is art.” Some photographers may have a stronger basis for claiming expressive rights than others, he said.

“I don’t think the Supreme Court wants to be in the business of deciding each” public accommodation case based on the specific facts, the ACLU’s Louise Melling said. But the justices invited that approach with their ruling in 303 Creative, which is the first time the court has ever recognized a right to discriminate in the provision of public accommodations, she said.

The ruling was “completely and utterly gutting” to the LGBTQ community and creates “stigmatic harm,” Melling said. Sotomayor “does a gorgeous job of laying that out,” she said.

Nelson’s Team Confident

Scruggs said he’s “very confident that the Sixth Circuit will apply 303 Creative” and rule for Chelsey Nelson.

Chelsey Nelson is also cross-appealing on issues she lost at the district-court level, including whether she can collect compensatory damages.

303 Creative doesn’t resolve those questions, but Chelsey Nelson should still prevail on them on appeal, Chelsey Nelson said in a supplemental brief.

It’s “highly likely” that Louisville will lose its appeal, Sepper said. There also isn’t much chance that the county will seek Supreme Court review if it loses, she said.

The county’s best arguments are that Chelsey Nelson doesn’t seem to be publicly engaged in wedding photography anymore and doesn’t face a credible threat of enforcement, Sepper said.

Real Consequences, Limited Reach

“Every hole you punch in the public accommodation fabric has real consequences for people,” Melling said. A Sixth Circuit ruling against Louisville “would be a further hole in that fabric” when it comes to protections against LGBTQ bias, she said.

But the types of businesses offering services or products to the public that can realistically contend they engage in protected expression or speech are limited, Shuster and Melling said.

The 303 Creative ruling has no application to widget- or hamburger-makers, Shuster said.

Many businesses that oppose LGBTQ rights will nevertheless seek to expand the ruling’s reach, Melling said. The important thing is to fight against that expansion going forward, she said.

The 303 Creative decision “is a great thing,” Scruggs said. Governments shouldn’t be forcing a person to say things that the person doesn’t believe in, he said.

The ruling “works both ways,” Scruggs said. It protects LGBTQ photographers just like it protects Chelsey Nelson, he said.

The county attorney’s office declined Bloomberg Law’s request for comment. Kaplan Johnson Abate & Bird LLP also represents Louisville.

Additional amici in the case include the Kentucky Commission on Human Rights, Americans United for Separation of Church and State and others, Kentucky and 20 other states, and the owners of an Oregon bakery, Sweet Cakes by Melissa.

The case is Chelsey Nelson Photography LLC v. Louisville-Jefferson Cty., Ky., Metro Gov’t, 6th Cir., No. 22-05884, oral argument 7/28/23.