The Volokh Conspiracy
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The Gay and Lesbian Services Organization (GLSO) tried to get Hands on Originals (HOO) to print some T-shirts promoting GLSO's Lexington Pride Festival. One of the owners of Hands on Originals refused, because he disapproved of the message that it was asked to print.
Aaron Baker, on behalf of the GLSO, filed a complaint with the Lexington-Fayette Urban County Human Rights Commission, arguing this violated the county's "Fairness Ordinance." That Ordinance bars—among other things—discrimination against individuals in public accommodations based on sexual orientation (defined to mean "an individual's actual or imputed heterosexuality, homosexuality, or bisexuality") or gender identity. Hands on Originals acknowledged that it was a "public accommodation" covered by the Ordinance.
The Commission decided in favor of Baker, but on Monday, in Hands on Originals, Inc. v. Lexington-Fayette Urban County Human Rights Commission, a Kentucky trial court judge disagreed.
1. First, the judge concluded that Hands on Originals was discriminating based on the pro-gay-pride message that GLSO wanted printed, not based on the sexual orientation of GLSO's representatives or members. This suggests that the judge thought the ordinance just didn't apply on its own terms, quite apart from any restrictions imposed by the First Amendment or by Kentucky's Religious Freedom Restoration Act. But as I read the opinion, the judge didn't make any such specific finding about the inapplicability of the ordinance.
2. The judge did conclude, though, that applying the ordinance to Hands on Originals' actions violated the First Amendment:
["T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.["] … The [Commission] attempted to distinguish [the compelled speech precedents] from the case at bar with the explanation that "In this case there was no government mandate that the Respondent (HOO) speak."… [But i]n fact, HOO and its owners, because they refused to print the GLSO t-shirts that offended their sincerely held religious beliefs, have been punished for the exercise of their Constitutional rights to refrain from being forced to speak….
The Commission in its oral argument says it is not trying to infringe on the Constitutional Rights of HOO and its owners but is seeking only to have HOO "…treat everyone the same." Yet, HOO has demonstrated in this record that it has done just that. It has treated homosexual and heterosexual groups the same. In 2010, 2011 and 2012, HOO declined to print at least thirteen (13) orders for message based reasons. Those print orders that were refused by HOO included shirts promoting a strip club, pens promoting a sexually explicit video, and shirts containing a violence related message.
There is further evidence in the Commission record that it is standard practice within the promotional printing industry to decline to print materials containing messages that the owners do not want to support. Nonetheless, the Commission punished HOO for declining to print messages advocating sexual activity to which HOO and its owners strongly oppose on sincerely held religious grounds.
HOO did not decline to print the t-shirts in question or work with GLSO representatives because of the sexual orientation of the representatives that communicated with HOO. It is undisputed that neither [of the] HOO representatives … knew or inquired about the sexual orientation of either GLSO representatives …. Rather, … the conversation between GLSO representative … and HOO [co-]owner [Blaine] Adamson was about GLSO's mission and what the organization generally promoted…. 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….
If Massachusetts could not compel [St. Patrick's Day] parade organizers to include a group advocating a [gay rights] message that the parade organizers did not support, [Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995),] how can the LFUCG Human Rights Commission interpret the "Fairness Ordinance" to compel HOO and its owners to print a t-shirt conveying a message that HOO and its owners do not support and in fact find blasphemous? The Court holds that the Commission cannot take this action consistent with the U.S. Constitution….
This Court has undertaken review of this case based upon … the doctrine of "strict scrutiny." … This Court does not fault the Commission in its interest in insuring citizens have equal access to services but that is not what this case is all about. There is no evidence in this record that HOO or its owners refused to print the t-shirts in question based upon the sexual orientation of GLSO or its members or representatives that contacted HOO. Rather, it is clear beyond dispute that HOO and its owners declined to print the t-shirts in question because of the MESSAGE advocating sexual activity outside of a marriage between one man and one woman. The well established Constitutional rights of HOO and its owners on this issue is well settled and requires action by this Court….
3. The court also held that the commission's actions violated the Kentucky Religious Freedom Restoration Act, which provides,
Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion of programs or access to facilities.
The court first concluded, following the reasoning of the U.S. Supreme Court in Hobby Lobby (where the Court was interpreting a very similar federal statutory scheme) that the Kentucky RFRA applied to corporations such as Hands On Originals, and, "[b]ecause the Commission's Order requires HOO and its owners to print shirts that convey messages contrary to their faith, that Order inflicts a substantial burden on their free exercise of religion." And the court then concluded that the commission's actions can't be justified under the "strict scrutiny" ("compelling governmental interest" / "least restrictive means") exception that the Kentucky RFRA provides:
[T]he Commission has not even attempted, much less shown by "clear and convincing evidence" or otherwise, that it has any compelling government interest in the consequences imposed upon HOO and its owners in this case. As previously mentioned, it is the understanding of this Court based on the record that GLSO was able to obtain printing of the t-shirts in question at a substantially reduced price or perhaps even had them printed for free. This was the offer extended by HOO owner Adamson in the initial phone conversation with a GLSO representative to refer GLSO to another printing company to do the work for the same price quoted by HOO. The Court holds that the Commission has not proven by clear and convincing evidence or otherwise that it has a compelling governmental interest to enforce in this case….
The analysis seems quite right to me. I expect there will be an appeal, so we'll see what the Kentucky appellate courts have to say about this.