Written by Don Byrd
An appeals court in Kentucky has rejected a bid to reverse a lower court’s ruling that favored Hands on Originals (HOO), a print shop in Lexington. The dispute arose after the store’s owner refused to print t-shirts for a local gay pride festival, citing his religious beliefs. The city’s anti-discrimination law (the “fairness ordinance”) prohibits businesses from discriminating on the basis of sexual orientation. Plaintiffs argued that the refusal of service violated the ordinance and was not protected by the state’s religious freedom laws, but the appeals court, echoing the lower court, ruled that the nondiscrimination law does not apply in this case.
The court held that HOO was not in violation of the fairness ordinance because its refusal was based on the message and not the sexual orientation of its customer. In a 2-1 opinion, the chief judge emphasized that the service in question – printing messages on t-shirts – is speech, and that the ordinance does not implicate the right of private businesses to control its own speech.
[T]he “service” HOO offers is the promotion of messages. The “conduct” HOO chose not to promote was pure speech. . . . Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance.
A contrary conclusion would result in absurdity under the facts of this case. The Commission’s interpretation of the fairness ordinance would allow any individual to claim any variety of protected class discrimination under the guise of the fairness ordinance merely by requesting a t-shirt espousing support for a protected class and then receiving a value-based refusal. A Buddhist who requested t-shirts from HOO stating, “I support equal treatment for Muslims,” could complain of religious discrimination under the fairness ordinance if HOO opposed equal treatment for Muslims and refused to print the t-shirts on that basis. A 25-year-old who requested t-shirts stating, “I support equal treatment for those over forty” could complain of age discrimination if HOO refused on the basis of its disagreement with that message. A man who requests t-shirts stating, “I support equal treatment for women,” could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message. And so forth. Clearly, this is not the intent of the ordinance.
Importantly, the controlling opinion did not address the question of whether Kentucky’s Religious Freedom Restoration Act (RFRA) requires that outcome (a concurring judge argued that it does). As such, the case was effectively treated as a Free Speech and not a Free Exercise dispute.
Writing in dissent, Judge Taylor argued that allowing such refusal amounts to de facto discrimination, and also argued that the state’s religious freedom law should not extend to protect against it.
The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect. The facts in this case clearly establish that HOO’s conduct, the refusal to -24- print the t-shirts, was based upon gays and lesbians promoting a gay pride festival in Lexington, which violated the Fairness Ordinance.
You can read the opinion here.