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Posts Tagged ‘Kentucky Supreme Court’

Kentucky Supreme Court Avoids Ruling on Clash Between Free Speech and Anti-Discrimination Law in T-Shirt Case

Posted on: November 3rd, 2019 by Art Leonard No Comments

In a case that drew 26 amicus briefs – an unusually high number for an argument in a Midwestern state high court, the Kentucky Supreme Court found an off-ramp from having to decide whether a small business that produces custom t-shirts has a right to refuse an order to print a shirt with whose message the business owner disagrees in Lexington-Fayetteville Urban County Human Rights Commission v. Hands on Originals, 2019 Ky. LEXIS 431, 2019 WL 5677638 (October 31, 2019).  The court decided that the appellant, the local human rights commission that had ruled against the business, had no jurisdiction because the entity that filed the discrimination complaint in the case was not an “individual” within the meaning of the local civil rights ordinance.

The case originated in February 2012 when a representative of the Gay & Lesbian Services Organization (GLSO), an advocacy organization in Lexington that was planning for its fifth annual Lexington Pride Festival, came to Hands On Originals, the t-shirt business, with an order for t-shirts to be used in connection with the Festival.  Hands on Originals is a small business with three owners, all of whom identify as Christians who operate the business consistently with their understanding of the Bible.  Their website has a non-discrimination statement, which includes “sexual orientations”, but says that “due to the promotional nature of our products, it is the prerogative of Hands on Originals to refuse any order that would endorse positions that conflict with the convictions of the ownership.”  The design that GLSO presented bore the name “Lexington Pride Festival” with rainbow-colored circles around an enlarged number “5” in recognition of the 5th year of the Festival, and no other text.  The employee who took the order reviewed it and quoted a price.

“The following month,” wrote Justice Laurence V. VanMeter in the court’s opinion, “a different GLSO representative contacted Hands On about the price quote and spoke with Adamson [one of the owners], who had not yet viewed the t-shirt design.  Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community.  Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+.  Adamson offered to refer GLSO to another printing shop.”  In the event, after word about this got out, a Cincinnati business printed the t-shirts for GLSO free of charge.  But GLSO’s president filed a complaint on behalf of the organization with the local human rights commission, charging violation of the Lexington-Fayetteville Human Rights Ordinance, which forbids discrimination against any individual based on their sexual orientation or gender identity by public accommodations.

The commission ruled in favor of the complainants, but was overruled by the Fayette Circuit Court, which instructed the commission to dismiss the charges.  The commission and GLSO appealed.  The Court of Appeals affirmed the circuit court, but the panel split, producing three opinions, out of which a majority concluded that the anti-discrimination provision was not violated by Hands On engaging in viewpoint or message censorship as a non-governmental entity.

Justice VanMeter’s opinion focused on the language of the ordinance, which provides that an “individual” claiming to be aggrieved by an unlawful practice can file a complaint with the commission.  The court concluded, by examining both the context of the ordinance and the contents of other states referenced in the ordinance, that “only an individual – being a single human – can bring a discrimination claim” under the ordinance.  Although an individual, a representative of GLSO, had filed the original complainant with the Commission, it was not filed in his individual capacity but rather as a representative of GLSO.  Thus, because “GLSO itself was the only plaintiff to file a claim” and “it did not purport to name any individual on whose behalf it was bringing the claim,” therefore GLSO “lacked the requisite statutory standing” to invoke the jurisdiction of the Human Rights Commission.

The court pointed out that Hands On “argued first to the Hearing Commissioner that GLSO, as an organization, did not have standing under the ordinance to bring a claim.”  The Hearing Commissioner rejected that argument, reaching a conclusion that the court rejects in this opinion: that an “individual” as named in the ordinance could also be an organization.  Hands On continued to push this argument through all levels of review, so it was not waived when the Kentucky Supreme Court agreed to review the lower court decisions.

“While this result is no doubt disappointing to many interested in this case and its potential outcome,” wrote Justice VanMeter, “the fact that the wrong party filed the complaint makes the discrimination analysis almost impossible to conduct, including issues related to freedom of expression and religion.  Normally in these cases, courts look to whether the requesting customer, or some end user that will actually use the product, is a member of the protected class.  And even when the reason for the denial is something other than status (conduct, for example), ways exist to determine whether the individual(s) (the requesting customer(s) or end user(s)) was actually discriminated against because of the conduct cited is so closely related to that individual’s status.  But in either scenario (whether the person allegedly discriminated against is the requesting customer or some end user) the individual is the one who has filed the lawsuit, so the court can properly determine whether that person has been discrimination against.”

VanMeter insisted that the court finds “impossible to ascertain” in this case whether the organization that filed the discrimination charge is a “member of the protected class.”  “No end user may have been denied the service who is a member of the protected class, or perhaps one was.  If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden” under the law.  “But without an individual . . .  this analysis cannot be conducted.”

This reasoning strikes us as hair-splitting in the extreme, but is not surprising considering that courts prefer to avoid deciding controversial issues if they can find a way to do so.  The Lexington-Fayetteville ordinance, by its terms, does not have protected classes.  Like the federal Civil Rights Act of 1964, it is a “forbidden grounds” measure, not a “protected class” measure.  Everybody, regardless of their race, is protected from race discrimination, for example.  There are no “protected classes” who have an exclusive claim to being protected against discrimination on any of the grounds mentioned in the ordinance.  Thus, VanMeter’s explanation is premised on a misconception of the ordinance.  But, as a decision by the Kentucky Supreme Court on a question of state law, it is final unless or until it is overruled by the Kentucky Supreme Court or rendered irrelevant by an amendment to the ordinance.  As it stands, however, it creates a large loophole in the coverage of the ordinance that was probably not intended by the local legislative bodies that enacted the measure.

Six members of the seven-member court sat in this case.  Four members of the court concurred in VanMeter’s opinion.  Justice David Buckingham wrote a separate concurring opinion.  Although he agreed with the court that GLSO lacked standing to file the charge, he wanted to express his view that the “Lexington Fayette Human Rights Commission went beyond its charge of preventing discrimination in public accommodation and instead attempted to compel Hands On to engage in expression with which it disagreed.”  He found support in the U.S. Supreme Court’s 1995 decision overruling the Massachusetts Supreme Judicial Court’s ruling that the organizers of the Boston Saint Patrick’s Day Parade case had violate the state’s human rights law by excluding a gay Irish group from marching in the parade, and a ruling earlier this year by the 8th Circuit court of Appeals reversing a district court decision concerning a videographer who sought a declaration that his business would not be required under Minnesota’s civil rights laws to produce videos of same-sex marriages.  In a lengthy opinion, Justice Buckingham cited numerous cases supporting the proposition that the government crosses an important individual freedom line when it seeks to compel speech.  “Compelling individuals to mouth support for view they find objectionable violates that most cardinal constitutional command,” he wrote, “and in most contexts, any such effort would be universally condemned.”  While reiterating his support for the ruling on “standing” by the majority of the court, he wrote, “if we were to reach the substantive issues, I would affirm the Fayette Circuit Court’s Opinion and Order,” which was premise in this First Amendment free speech argument.

Because the court’s decision is based entirely on its interpretation of the local ordinance and various Kentucky statutory provisions and avoids any ruling on a federal constitutional issue, it is not subject to appeal to the U.S. Supreme Court, which a straightforward affirmance of the Court of Appeals ruling on the merits would have been.

Most of the amicus briefs were filed by conservative and/or religious groups seeking affirmance of the Court of Appeals on the merits, and it is clear that the amici were determined to make this a major “culture wars” case in the battle against LGBTQ rights.  One amicus brief was filed on behalf of ten states that do not forbid sexual orientation or gender identity discrimination in their state civil rights laws.  There were also amicus briefs from progressive groups (including progressive religious groups) urging the court to reverse the Court of Appeals on the merits.  The only LGBT-specific organizational brief was filed by Lambda Legal.

Kentucky Supreme Court Lets Lesbian Co-Parent Block Adoption Petition by Former Partner’s Husband

Posted on: February 29th, 2016 by Art Leonard No Comments

The Kentucky Supreme Court unanimously ruled on February 18 in A.H. v. W.R.L. & M., 2016 Ky. LEXIS 14, that the lesbian co-parent of a child had a right to intervene in an adoption proceeding that had been initiated by the new husband of her former same-sex partner. Facing a case of “first impression” for the Kentucky courts, Justice Bill Cunningham wrote that the Kentucky Court of Appeals had incorrectly reversed the trial court’s decision to grant the co-parent’s motion to intervene and to dismiss the step-father’s adoption petition.

Justice Cunningham’s opinion refers to all the parties only by their first names in order to protect their privacy, as is common in family law proceedings.

Amy and Melissa began their relationship in Ohio in 2005 and decided to have a child together. Melissa conceived through donor insemination and gave birth to Laura in September 2006.  Amy was present throughout the delivery, and the women agreed that Laura would have Amy’s last name.  Until Melissa and Amy separated in 2011, they lived together with Laura as a family, Amy taking a full share of parental duties.

After the split-up, Melissa moved with Laura to Kentucky. Amy continued to visit Laura after the move.  The next year Melissa married a man named Wesley.  Almost two years later, in 2014, Wesley filed a step-parent adoption petition in the Kenton County, Kentucky, Family Court.  When Amy learned of this, she filed a Petition for Shared Custody and Visitation in Hamilton County, Ohio, Family Court, as well as a motion to intervene in the Kentucky adoption case.  She sought to have the adoption petition dismissed in light of her custody petition pending in Ohio.

The Ohio Family Court does not have jurisdiction over Laura, a resident of Kentucky, so the two cases were consolidated in Kentucky, where the trial judge granted Amy’s motion to intervene and dismissed Wesley’s adoption petition. In effect, the Kentucky trial judge decided to reorient the case away from Wesley’s adoption to Amy’s action for shared custody and visitation.

Wesley appealed and the Kentucky Court of Appeals reversed. It held that Amy did not have “standing” to seek to adopt Laura and thus was not entitled to intervene in Wesley’s adoption case, and it ordered the Family Court to reinstate the adoption proceeding.

This time Amy appealed.

Supreme Court Justice Cunningham prefaced his discussion of the legal issues with his assertion that the case “is not about same-sex relationships, changing social mores or notions about definition of family, or life styles.”

“This case is about people and their ability to participate in a lawsuit in which the outcome may adversely affect their interest,” he continued. “What we write here today applies equally to a myriad of human relationships including heterosexual parenting, boyfriends, girlfriends, grandparents, and others.  Most importantly, this case is about Laura.  Sometimes the emotions which envelope these types of cases cause this primary concern to be overlooked.”

At its heart, wrote Cunningham, was the Court of Appeals’ mistaken conflation of the concepts of intervention and standing. “Standing to seek adoption is not a condition for intervening in an adoption proceeding,” he wrote.  “Our analysis is concerned only with Amy’s right to intervene in the adoption proceeding.”

As to that, he found that a Kentucky practice rule on “intervention of right” in pending cases, Rule 24.01, applies to this situation. The rule states that “anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.”  Indeed, if Wesley’s petition was granted, he and Melissa might have the power as Laura’s legal parents to exclude Amy from Laura’s life.

In this case, wrote Cunningham, “the subject of the adoption action is Laura, and Amy is claiming a cognizable legal interest – i.e., maintaining a relational connection with the child, either through custody or visitation.” Granting Wesley’s adoption petition “could impair or impede Amy’s proffered custodial interest since, absent her intervention, the adoption proceedings would have concluded before her custody rights were determined.”  On the other hand, if she gained joint custody before the adoption proceeding was concluded, she would “share the right to make decisions concerning the major aspects of Laura’s upbringing.”  Thus, the Supreme Court found that Amy had satisfied the requirements set forth in Rule 24.01.

Thus Amy was entitled to intervene as a matter of right. The court pointed out that another Rule governs permissive intervention, which would give the trial court discretion to allow her to intervene even if she did not have a strict right to do so.

When Melissa and Amy planned to have a child they executed a written agreement with their sperm donor which made clear that they contemplated that Amy and Melissa would raise the child together as parents. Justice Cunningham noted that the parties in this case have argued about whether that document is an enforceable contract.  He found that question not “dispositive” of the outcome of this case, but rather considered the document to be “instructive evidence demonstrating the intent of Amy and Melissa to raise Laura as co-parents,” thus bolstering Amy’s claim to have a legal interest for purposes of intervening in the adoption proceeding.

The Supreme Court also found that the trial judge made a “logical decision” that Amy’s custody claim should be resolved before addressing Wesley’s adoption petition, and that the Court of Appeals should have deferred to the trial court’s judgment on this as a matter of judicial efficiency. The Supreme Court sent the case back to the trial court, reinstating its order granting intervention and dismissing the step-parent adoption petition.

Amy is represented by attorneys Margo L. Grubbs, Jennifer Blain Landry, Camilla B. Taylor, Kyle A. Palazzolo, Christopher R. Clark, Gregory R. Nevins and Lisa T. Meeks. Taylor, Palazzolo, Clark and Nevins are staff attorneys with Lambda Legal.  Counsel for Wesley are Jacqueline S. Sawyers and Amy Howard Anderson.