The Sixth Circuit Friday signaled that a Christian photographer’s moving from Kentucky to Florida may have stripped it of the power to decide Louisville’s appeal of an order barring it from enforcing its public accommodations law against her opposition to providing services for same-sex weddings.

The issue came to the fore during oral argument following a last-minute motion by Louisville-Jefferson County Metro Government seeking to have a lawsuit by Chelsey Nelson and her photography business sent back to the US District Court for the Western District of Kentucky. Nelson revealed that she moved out of state in a brief filed April 14, but “a publicly-available deed from Nelson’s recent sale of her Louisville residence indicates that she has moved to Tallahassee,” the motion said.

Because Nelson is now out-of-state and so distant from Louisville, she doesn’t face a credible threat that the sexual orientation provisions of the city’s public accommodations ordinance will be enforced against her, Louisville’s attorney Casey L. Hinkle told the US Court of Appeals for the Sixth Circuit. That means Nelson and her business lack standing to continue with her lawsuit, the injunction issued by the lower court must be vacated, and the case must be dismissed, she said.

That Nelson no longer lives in Kentucky is something that must be considered, Hinkle said. Hinkle is with Kaplan Johnson Abate & Bird LLP.

She agreed with one of the Sixth Circuit judges that remand for discovery would also be proper if the court thinks fact-finding is needed regarding Nelson’s move and her stated plans to continue pursuing opportunities to provide wedding-related services in Louisville despite her relocation. But “we submit that dismissal” is the appropriate outcome because Nelson no longer lives in Louisville, Hinkle said.

If Hinkle is right, it would side-track an appeal that was expected to clarify the reach of the US Supreme Court’s June 30 decision in a similar case involving a Christian website designer in Colorado who likewise says her faith forbids her from providing services for same-sex weddings.

A 6-3 majority said in 303 Creative LLC v. Elenis that the First Amendment requires allowances from public accommodations laws for businesses that engage in expressive activities like the customized websites built by 303 Creative. Public accommodation laws typically prohibit any form of discrimination.

But Nelson’s lawyer told the Sixth Circuit panel—Judges Jane Branstetter Stranch, John K. Bush, and Eric E. Murphy—that they should wait for Nelson’s answer to Louisville’s motion before kicking the case back to the district court.

“Yes, we need an opportunity to file a written response,” attorney Jonathan A. Scruggs said in response to one of the judges. The question of whether the district court properly rejected Nelson’s request for nominal damages, despite granting her an injunction against enforcement of Louisville’s ordinance is also on appeal, he said.

If Nelson is entitled to nominal damages, that would support continued standing irrespective of her move to Florida, Scruggs said. He is with the Alliance Defending Freedom, which also represented the plaintiff in 303 Creative.

Standing to sue also still exists because Nelson’s business remains incorporated in Kentucky and she continues to seek business opportunities there, Scruggs said.

“My suggestion would be for” the judges to wait for Nelson’s response to Louisville’s remand motion before deciding what comes next, he said. Public accommodation laws don’t just apply to those residing within a state, he said.

The Jefferson County attorney’s office also represents Louisville.

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.