Courtroom interior_newWritten by Don Byrd

Must t-shirt printing companies agree to print messages that violate their religious beliefs? A Kentucky court this week said no.

The court ruled in favor of Hands On Originals (HOO), which raised a religious freedom (as well as a free speech) defense to charges that it violated a local nondiscrimination ordinance by refusing to print t-shirts associated with Lexington’s gay pride festival. The federal and state constitutions, as well as the Kentucky Religious Freedom Restoration Act (RFRA), the company argued, protect the company against compelled speech it finds objectionable on religious grounds. The court agreed, overturning a Human Rights Commission ruling that the refusal amounted to unlawful discrimination on the basis of sexual orientation.

A central issue for the court was whether refusing to print a particular message amounted to discrimination. Here, the court determined, the refusal was about the message and not the status of the customer. Accordingly, the free speech guarantees in the First Amendment and the Kentucky Constitution protect against what would otherwise amount to compelled speech.

An excerpt from the opinion (emphasis in the original):

HOO did not decline to print the t-shirts in question or work with [Gay and Lesbian Services Organization] respresentatives because of the sexual orientation of the representatives . . . . It is undisputed that neither HOO representatives Carter nor Adamson knew or inquired about the sexual orientation of . . . GLSO representatives . . . . It is their constitutional right to hold dearly and not be compelled to be part of the advocacy of messages opposed to their sincerely held Christian beliefs. In short, HOO’s declination to print the shirts was based upon the message of GLSO and the Pride Festival and not on the sexual orientation of its representatives or members. In point of fact, there is nothing in the record before the Commission that the sexual orientation of any individual that had contact with HOO was ever divulged or played any part in the case.

Importantly, the court also noted that the company regularly refuses to print messages it finds objectionable, as is, apparently, the industry standard.

In addition – and important for those of us following the state RFRA controversies this legislative season – the court found the Kentucky RFRA does apply and that the order of the Commission (which was named as a defendant in the case) substantially burdens the religious exercise of the company’s owner, following the logic of the Supreme Court’s ruling in Hobby Lobby. The Commission failed to demonstrate a compelling interest justifying the burden as required under the law.

What is unclear is whether the court would have ruled that even a discriminatory refusal would have also been protected by RFRA. Many advocates these days are looking to how the religious freedom law will interact with nondiscrimination provisions like the one at issue here. Because the court characterized the company’s actions as based upon message and not customer status, this may not be a case in which to find the answer to that question with regard to the Kentucky RFRA.

The Lexington Herald-Leader reports that an appeal in the case is likely.