Chelsey Nelson Photography LLC v. Louisville-Jefferson Cnty., Ky.

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 16, 2024
• Docket: 22-5912
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0167n.06

Nos. 22-5884/5912

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

) CHELSEY NELSON; CHELSEY NELSON ) PHOTOGRAPHY LLC, ) FILED Plaintiffs - Appellees/ Cross - Appellants, ) Apr 16, 2024 ) KELLY L. STEPHENS, Clerk v. ) ) LOUISVILLE-JEFFERSON COUNTY METRO ) GOVERNMENT; LOUISVILLE AND JEFFERSON ) COUNTY HUMAN RELATIONS COMMISSION- ) ENFORCEMENT; LOUISVILLE AND JEFFERSON ) COUNTY HUMAN RELATIONS COMMISSION- ) ADVOCACY; VERNA GOATLEY, in her official capacity ) as Executive Director of the Louisville Metro Human ) Relations Commission - Enforcement; GLENDA BERRY, ) in their official capacities as members of the Louisville ) Metro Human Relations Commission-Enforcement; ON APPEAL FROM THE ) KEVIN DELAHANTY, in their official capacities as UNITED STATES DISTRICT ) members of the Louisville Metro Human Relations COURT FOR THE WESTERN ) Commission-Enforcement; LESLIE FAUST, in their DISTRICT OF KENTUCKY ) official capacities as members of the Louisville Metro ) Human Relations Commission-Enforcement; ANDREA OPINION ) HOUSTON, in their official capacities as members of the ) Louisville Metro Human Relations Commission- ) Enforcement; CHARLES ROGERS, in their official ) capacities as members of the Louisville Metro Human ) Relations Commission-Enforcement; WILLIAM SUTTER, ) in their official capacities as members of the Louisville ) Metro Human Relations Commission-Enforcement; ) LEONARD THOMAS, in their official capacities as ) members of the Louisville Metro Human Relations ) Commission-Enforcement, ) Defendants - Appellants / Cross-Appellees. ) ) )

Before: STRANCH, BUSH, and MURPHY, Circuit Judges. Nos. 22-5884/5912, Nelson, et al. v. Louisville-Jefferson County, KY Metro Government, et al.

PER CURIAM. Chelsey Nelson is the owner of the Louisville, Kentucky, based

photography studio Chelsey Nelson Photography. She brought suit against various local municipal

bodies and officials, who we refer to collectively as “Louisville” or “the City,” seeking injunctive,

declaratory, and retrospective relief for injuries she allegedly suffered, or will imminently suffer,

under the City’s public accommodation laws. These laws prohibit establishments that provide

“goods or services to the general public” from discriminating on the basis of sexual orientation.

Louisville, Ky., Metro Gov’t Code of Ordinances §§ 92.01-02, 92.05. They implicate Chelsey

Nelson Photography’s policy against providing services for same-sex weddings, which is rooted

in Nelson’s stated religious belief “that God ordained marriage to be a covenant between one man

and one woman.”

Nelson’s lawsuit seeks prospective relief preventing Louisville from enforcing its public

accommodation law against her and retrospective relief awarding her nominal and compensatory

damages for the chilling effect the law has allegedly had on her protected speech. The district

court entered judgment for Nelson on her prospective claims, concluding that she faced a

sufficiently imminent threat of enforcement to confer standing and that the law violated the First

Amendment’s Free Speech Clause. Chelsey Nelson Photography, LLC v. Louisville/Jefferson

Cnty. Metro Gov’t, 624 F. Supp. 3d 761, 797-804 (W.D. Ky. 2022). It dismissed her retrospective

claims for lack of standing, concluding that her compensatory damages claim failed for lack of

causation and her nominal damages claim failed for lack of redressability. Chelsey Nelson

Photography LLC v. Louisville/Jefferson Cnty. Metro Gov’t, 479 F. Supp. 3d 543, 553 (W.D. Ky.

2020). The court also granted Nelson’s motion to exclude the City’s expert and denied her motion

to supplement the summary judgment record after the close of discovery. Chelsey Nelson

Photography, 624 F. Supp. 3d at 797-800; R. 131, Order.

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The parties each appealed elements of the district court’s decisions. Louisville appealed

the rulings on Nelson’s claims for prospective relief and on the admissibility of its expert witness;

Nelson cross-appealed the dismissal of her claims for retrospective relief, the denial of her motion

to supplement the record, and the scope of relief the district court entered.

In the time between the district court’s initial order and argument before this Court, three

notable developments occurred. In March 2021, the Supreme Court decided Uzuegbunam v.

Preczewski, 141 S. Ct. 792, 802 (2021), holding that “a request for nominal damages satisfies the

redressability element of standing where a plaintiff’s claim is based on a completed violation of a

legal right.” In April 2023, Nelson disclosed that she had “moved outside Kentucky.” And in

June 2023, the Supreme Court decided 303 Creative LLC v. Elenis, 600 U.S. 570, 579-80, 588-89

(2023), holding that a Colorado public accommodation law violated the Free Speech Clause of the

First Amendment as applied to a business that provided custom wedding websites.

These developments triggered three additional rounds of briefing in this court. At our

direction, the parties filed supplemental briefs addressing the effect of 303 Creative on this appeal.

Louisville then filed a motion, predicated on Nelson’s move, seeking remand of the case to the

district court to dismiss Nelson’s claims as moot or, in the alternative, to undertake further

discovery and to enter new findings on the issue. Finally, in addition to opposing remand, Nelson

filed a motion to supplement the appellate record with a declaration related to her move.

Given the intervening developments, in particular the “unsettled facts” introduced by

Nelson’s move to Florida, the “district court is best positioned to resolve” in the first instance the

continued vitality of Nelson’s claims. FemHealth USA, Inc. v. Williams, 83 F.4th 551, 557 (6th

Cir. 2023). We therefore GRANT Louisville’s motion to remand for further proceedings and

DENY Nelson’s motion to supplement the appellate record. We VACATE the district court’s

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dismissal of Nelson’s claim for nominal damages and its denial of Nelson’s motion to supplement

the summary judgment record, and REMAND to the district court to address in the first instance

whether Nelson’s claims for injunctive relief are moot and whether under Uzuegbunam she can

maintain her claim for nominal damages. We express no opinion on these issues, or on the merits

of Nelson’s claims. In the interim, we leave in place the injunction prohibiting Louisville from

enforcing the Ordinance against Nelson.

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