The Kentucky Court of Appeals split three ways in a May 12 ruling on a discrimination claim by the Lexington Gay and Lesbian Services Organization (GLSO), whose order for Pride Festival t-shirts was rejected by a local business called “Hands On Originals” (HOO) that specializes in producing customized t-shirts, mugs, pens and other accessories. Chief Judge Joy A. Kramer found that the denial of services did not constitute sexual orientation discrimination, while Judge Debra Hembree Lambert found that the business was privileged to reject the business under Kentucky’s Religious Freedom Restoration Act. Dissenting Judge Jeff S. Taylor disagreed with both of his colleagues, finding that the local fairness ordinance was violated and that the state RFRA provided no defense.
The story begins on March 8, 2012, when Don Lowe, on behalf of the Lexington GLSO, phoned HOO to order t-shirts that would have a “screen-printed design with the words ‘Lexington Pride Festival 2012,’ and the number ‘5,’ and a series of rainbow-colored circles around the ‘5.’” These were going to be sold to promote the Pride Festival. Blaine Adamson, a co-owner of the business, took the phone call. After Lowe explained what he wanted to order and explained, in response to Adamson’s question, that the Festival was an event for the gay and lesbian community, Adamson told him, “Don, I know that this will upset you, but because of my Christian beliefs, I can’t promote that.” Adamson later told an investigator for the Human Rights Commission that what he found offensive to print was the phrase “Lexington Pride Festival.” “To me it’s promoting a message, an event that I can’t agree with because of my conscience,” he told the interviewer. Adamson said that based on his “personal religious beliefs” he could not “promote that message.”
The local human rights ordinance in Lexington forbids discrimination because of sexual orientation by places of public accommodation, such as retail businesses. The GLSO filed a charge with the local commission, which rejected Adamson’s argument that he was not refusing the order due to the sexual orientation of the members of the GLSO, but rather because of “the Pride Festival’s advocacy of pride in being homosexual,” which contradicted his religious views. The Commission found that accepting this argument “would allow a public accommodation to refuse service to an individual or group of individuals who hold and/or express pride in their status. This would have the absurd result of including persons with disabilities who openly and proudly display their disabilities in the Special Olympics, persons of race or color, who are not only of differing race or color, but express pride in being so, and persons of differing religions who express pride in their religious beliefs.”
Finding that Adamson’s objection to the printing of the t-shirts “was inextricably intertwined with the status of the sexual orientation of the members of the GLSO,” the Commission concluded that the refusal “was clearly because of the sexual orientation and identity of members of the GLSO” and thus violated the local fairness ordinance.
HOO appealed to the Fayette Circuit Court, where Judge James D. Ishmael, Jr., reversed the Commission, finding no violation of the ordinance and holding, further, that if the business’s action was held to violate the ordinance, then the ordinance would be violating the constitutional rights of the business. The Commission appealed.
Chief Judge Kramer’s opinion tried to draw a line between speech and conduct in attempting to fit this case into the context of discrimination law. She found that “a shopkeeper’s refusal to serve a Jewish man, not because the man is Jewish, but because the shopkeeper disapproves of the fact that the man is wearing a yarmulke, would be the legal equivalent of religious discrimination,” and that “a shopkeeper’s refusal to serve a homosexual, not because the person is homosexual, but because the shopkeeper disapproved of homosexual intercourse or same-sex marriage, would be the legal equivalent of sexual orientation discrimination.” She also cited the Colorado Court of Appeals ruling that “a cake-maker’s refusal to sell a wedding cake to a homosexual couple, because the cake-maker knew the cake would be used to celebrate a same-sex marriage and the cake-maker was opposed to such unions, is the equivalent of discrimination on the basis of sexual orientation.”
“By contrast, however,” she wrote, “it is not the aim of public accommodations laws, nor the First Amendment, to treat speech as this type of activity or conduct. This is so for two reasons. First, speech cannot be considered an activity or conduct that is engaged in exclusively or predominantly by a particular class of people. Speech is an activity anyone engages in – regardless of religion, sexual orientation, race, gender, age, or even corporate status. Second, the right of free speech does not guarantee to any person the right to use someone else’s property, even property owned by the government and dedicated to other purposes, as a stage to express ideas.” She went on to express disagreement with the Commission’s argument that “acceptance” of HOO’s argument would allow a public accommodation to “refuse service to an individual or group of individuals who hold and/or express pride in their status.”
“Nothing of record demonstrates that HOO, through Adamson, refused any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations it offered to everyone else because the individual in question had a specific sexual orientation or gender identity.” Kramer emphasized that Lowe testified he said nothing to Adamson about his own sexual orientation, and Adamson didn’t inquire. Furthermore, Kramer wrote, GLSO is an organization that has, itself, no sexual orientation: “it is a gender-neutral organization that functions as a support network and advocate for individuals who identify as gay, lesbian, bisexual, or transgendered.” She also observed that the man who filed the discrimination charge on behalf of GLSO, its president Aaron Baker, is a straight married man who happens to support gay rights.
Kramer asserted that there was no showing that the business refused any individual “the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations it offered to everyone else because the individual in question was engaging in an activity or conduct exclusively or predominantly by a protected class of people.” She argued that “the t-shirts GLSO sought to order from HOO are an example of its support and advocacy of others,” and “the GLSO’s desire to sell these shirts to everyone clearly imparted a message: Some people are gay, lesbian, bisexual, and transgendered; and people of their sexual orientations have as much claim to unqualified social acceptance as homosexuals.” In other words, she contended, seeking to convey such a message is not an activity that defines an individual as gay, the way wearing a yarmulke is conduct that usually defines a person as Jewish.
Indeed, she claimed, the “service” that HOO sells is “the promotion of messages. The ‘conduct’ HOO chose not to promote was pure speech.” Since HOO is a privately-owned business, not a public forum, the ordinance does not prohibit it 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.”
In his dissent, Judge Taylor rejected Kramer’s finding that the ordinance “is not applicable to this case on the premise that HOO was engaging in conduct equivalent to ‘message censorship,’ and thus said conduct was not in violation of the ordinance. This line of reasoning is misplaced,” he argued, “and otherwise ignores the deliberate and intentional discriminatory conduct of HOO in violation of the Fairness Ordinance, in my opinion.”
Taylor argued that the policy behind the ordinance is “to safeguard all individuals within Fayette County from discrimination in public accommodations on the basis of sexual orientation or gender identity. The conduct of HOO and its owners clearly violates” the ordinance “in that HOO’s conduct was discriminatory against GLSO and its members based upon sexual orientation or gender identity. Adamson testified that upon believing that the Festival advocated homosexuality, among other things, HOO immediately refused to print the t-shirts. Regardless of whether this guise was premised upon freedom of religion or speech, HOO blatantly violated the ordinance.”
He contended that Kramer’s contention that GLSO is not protected by the ordinance because it does not, as an entity, have a sexual orientation, “fails on its face. GLSO serves gays and lesbians and promotes an ‘alternative lifestyle’ that is contrary to some religious beliefs. That lifestyle is based upon sexual orientation and gender identity that the United States Supreme Court has recently recognized.”
“The circuit court sets forth several times in its Opinion and Order that HOO and Adamson refused to print GLSO’s t-shirts because of their religious beliefs against same-sex relationships. However, gay marriage and same sex relationships are now recognized under the United States Constitution as a fundamental right. Regardless of personal or religious beliefs, this is the law that courts are duty bound to follow.”
He observed that under Kramer’s analysis “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 the law, “since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise,” he continued, “the ordinance would have limited or no force or effect.” He also pointed out that the speech that HOO “sought to censor was not obscene or defamatory,” and there was “nothing obnoxious, inflammatory, false, or even pornographic that GLSO wanted to place on their t-shirts which would justify restricting their speech under the First Amendment.”
To Taylor, the ordinance in this case is “simply an extension of civil rights protections afforded to all citizens under federal, state and local laws. These civil rights protections serve the societal purpose of eradicating barriers to the equal treatment of all citizens in the commercial marketplace.”
Judge Lambert cast her vote with Kramer, but not based on Kramer’s reasoning. Instead, she said that she would affirm the circuit court “based on the reasoning of Burwell v. Hobby Lobby Stores, Inc.,” the Supreme Court decision recognizing a right of a business, deemed to be an “individual” under the federal Religious Freedom Restoration Act, to refuse to comply with a statute that would significantly burden free exercise of religion. Kentucky has its own RFRA, worded like the federal statute, and Lambert would find that HOO can freely exercise the religious beliefs of its owners to refrain from promoting a gay pride festival. “HOO did not refuse to print the shirts simply because the GLSO representative is a member of a protected class listed in the fairness ordinance,” she wrote. “Rather, HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GLSO conflict with their Christian values.”
“The central issue here,” she wrote, “is whether the fairness ordinance is the least-restrictive way” for the local government to “prevent local business from discriminating against members of the gay community without imposing a substantial burden on the exercise of religion.” She concluded it was not since, as interpreted by the commission, the ordinance “forces the owner to either join in the requested violation of a sincerely held religious belief, or face a penalty, i.e., support the furtherance of the offending cause or take a class on how to support it. Such coercion,” she asserted, violates the state’s RFRA. To that extent, the ordinance is “invalid as applied in this case.”
Given the fractured court, it is difficult to say what this ruling means as a precedent, apart from the narrow circumstance in which a business owner expresses a sincerely held religious belief that prompts him to refuse to provide a service that can be characterized as “expressive?” How would this court rule in the case of the wedding photographer, florist, or baker who does not want to provide goods or services for a same-sex wedding? A clear implication of Judge Kramer’s reasoning is that engaging in a same-sex wedding is something different from promoting a Pride Festival, to judge by her citation of the Colorado baker case without stating any disagreement with its conclusions. To Judge Lambert, the RFRA issue might be the same in all of these cases. One won’t know for sure until the next case arises.