For the third time, a court has held that a public accommodations law cannot be enforced against a service provider who objects, for religious reasons, to same sex marriage. Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky. 2020). The other two times were: Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019); Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Cases going the other way and finding it constitutional to enforce public accommodations laws to service providers who oppose same-sex marriage include: Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)’ State v. Arlene's Flowers, Inc., 441 P.3d 1203 (Wash. 2019).
The judge in the Chelsey Nelson case found a free speech violation because “photography is art,” “art is speech,” and the “government can’t compel speech when it violates the speaker’s religious or political principles.”
In contrast, the Justices of the New Mexico Supreme Court held that "a commercial photography business that offers its services to the public…must serve same-sex couples on the same basis that it serves opposite-sex couples." Public accommodation laws do not "compel [the photographer] to either speak a government-mandated message or to publish the speech of another"; rather, they merely require any "business offering services to the general public" to avoid discrimination "against protected classes of people."
This is not an issue that is going away.