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Posts Tagged ‘Lexington Pride Festival’

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 Appeals Court Rejects Public Accommodations Discrimination Claim by Gay Organization

Posted on: May 16th, 2017 by Art Leonard No Comments

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.