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Kentucky Top Court to Consider Shop's Refusal to Print Gay Pride T-Shirts

This is a clear-cut case of unconstitutional compelled speech with an easy verdict.

Gay pride flagSachelle Babbar/ZUMA Press/NewscomKentucky's Supreme Court has agreed to hear a case about whether a T-shirt shop owner can decline to print gay pride shirts.

This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.

As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.

Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.

Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.

Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.

Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.

Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.

But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.

Photo Credit: Sachelle Babbar/ZUMA Press/Newscom

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  • Hugh Akston||

    A quick googling yields up to a dozen T-shirt screen print shops in the Lexington area, to say nothing of the vast number of suppliers online. I guess filing a complaint with the city speech cops was just easier?

  • Mickey Rat||

    Getting the service they wanted is probably not the point of the complaint, but rather thst someone dared object to their message.

  • DiegoF||

    These are meanspirited, malicious people who bring these types of lawsuits. The idea that their adversaries--guilty of nothing more than having an unfashionably stringent private moral code--should be considered to be full of "hate" or "bigotry," much less to be "denying others their rights" and even "minding other people's business," shows the Orwellian dystopia we have descended into.

    And all because here in the Land of the Free, we couldn't simply say, "Homosexuality? None of the public's fucking business," and leave it at that. We just couldn't start treating gays like human beings until we decided that we morally approved. And now, of course, everybody must morally approve--because of course if you don't you must favor treating them like shit because wasn't that what we did before we morally approved of them? Just a bunch of controlling, hateful, tribal-minded assholes is what we are. But good news!--it's becoming ever easier for gays to join us in it, and ever harder for those nasty nasty Christians to do so. And weren't they The Oppressor for long enough throughout history, after all?

  • Diane Reynolds (Paul.)||

    It's more fun, you see your name in the paper, maybe talk to Nina Totenberg at NPR.

  • creech||

    Asking again: suppose a gay-owned t-shirt shop refused to print up "God hates homos" shirts for a church group? Do you really think the Lexington-Urban County Rights Commission would take the customer's side then?

  • Enjoy Every Sandwich||

    I'm doubtful that you'll ever get a coherent answer to that question.

  • Just Say'n||

    Come on, man. I think you already know the answer to that

  • Mickey Rat||

    Apparaently that was part of Masterpiece's brief. The Colorado court declined to punish a cake shop that refused to make a cake in the shape of Bible quoting verses supporting marriage betwen a man and a woman. The court allowed arguments by that bakery, such as they served Christians for other products that dis not allow Phillips to make. Bringing up evidence of disparate impact and animus against religion on the part of the court.

  • ||

    Along the same lines but asking for the first time... are there really libertarians out there who, if this t-shirt shop had a massive inventory of gay pride t-shirts, are a-OK with the city forcing the shop to sell them against their will to anyone who can credibly file a public accommodations violation claim?

    It's like a whole new dimension of cosmotarians.

  • IceTrey||

    Libertarians are never ok with anyone forcing anybody to do anything.

  • A Thinking Mind||

    It's seldom wise to use absolutes. There are conditions in which compelled action is required.

    For instance, on the condition that someone robs from you, I believe they should be compelled to return to you any items they stole, as well as potentially serve some legal penalty. If they damage or destroy your property, you need to compel them to make restitution. If someone murders someone else, it is worth removing them from society so they are no longer a threat to others.

  • hello.||

    So then nobody who works for Reason is actually a libertarian? Sounds about right.

  • ||

    So he only hates the self-loathing homos then?

  • BYODB||

    In terms of Christianity, at least, it's expected to love the sinner but hate the sin. A fine distinction, perhaps, but that's the over-arching idea of being 'like Christ'.

  • BYODB||

    And, for what's it worth, reading the Bible itself does tend to lend itself towards 'God hates fags' with a pretty terrible vengeance as revealed by Sodom and Gomorrah, if you believe that type of thing. That's the Old Testament though, and as such most of it was supposedly repudiated by Jesus. That leaves you with Jews and potentially Muslim's, who have differing views on the subject.

  • Zeb||

    That's the Old Testament though, and as such most of it was supposedly repudiated by Jesus.

    I do believe that is the mainstream Christian view. Which is a good thing about Christians. OT God was a fucking genocidal asshole piece of shit monster. I guess if you believe he's the omnipotent creator of the universe, you'd better get with it anyway because what are you going to do about it. But I don't know how anyone can read that shit and say "yup, this is the God I want to worship".

  • BYODB||


    OT God was a fucking genocidal asshole piece of shit monster.

    Pretty much this, if we're being honest. The Old Testament is both a horror novel and a highly partisan historical document. That's about it in my view.

  • hello.||

    Pretty sure Jesus was a faithful Jew and proponent of all the old testament laws. Ignorant Christians like to use the new covenant as a cover for anything they find inconvenient about reconciling their religion with modern life. But Jesus didn't repudiate shit about the old testament.

  • BestUsedCarSales||

    A fine distinction, perhaps, but that's the over-arching idea of being 'like Christ'.

    It's not that fine of distinction. I can love my father while discouraging his alcoholism and there's no subtle distinction required.

    The difficulty probably has more to do with how little people care to make these distinctions with people they don't know. It's much easier for me to tell some random drunk to fuck off than it is to tell my own father. I have no investment in them. That's the hard part of the "like Christ" ideal. Is we battle against the completely natural urge to care considerably more about those close to us.

  • BYODB||

    I'm not actually saying it's a fine distinction just acknowledging that it might be that way for people who don't understand the difference.

  • Bra Ket||

    I'd call it a nuanced view given how people have so much trouble with it.

  • Bacon-Magic glib reasonoid||

    Good article/blog Scott.

  • Diane Reynolds (Paul.)||

    What would the consensus be if a gay person went to a Halal bakery and demanded they decorate something with the image of Muhammed, and the bakery refused?

  • ||

    Screw that. There are libertarians who seem to think public accommodations law are a-OK to be sensibly enforced in places that it's shown not to be. The whole reason we're up against the 1A here is because more sensible options, as Hugh Akston points out bae, are off the table.

    What would the consensus be if a gay person refused to sell gay pride t-shirts in winter because rainbow colors are out of season? What if a straight person refused to sell for the same reason?

  • Zeb||

    There are libertarians who seem to think public accommodations law are a-OK to be sensibly enforced in places that it's shown not to be.

    I'm not denying they exist. But who do you have in mind here?

  • Unlabelable MJGreen||

    I assume this is a lot of unfocused snark and rage going around, ignoring any distinctions between different cases and arguments. As Scott says repeatedly here, there's growing precedent that this kind of application of public accommodation law is unconstitutional.

  • Zeb||

    I think you are right and that is a lot of it.

    But I'm actually curious who they have in mind here. I'm not the best at keeping track of who is who and what they think about things.

  • ||

    But I'm actually curious who they have in mind here. I'm not the best at keeping track of who is who and what they think about things.

    I freely admit to being guilty of succumbing to Poe's Law (or corollary) and failing to make this/these distinctions as well. Especially in higher-profile threads with more apparent newcomers it's difficult to discern who's being a pragmatist, who's conducting thought experiments or playing devil's advocate, who's just trolling, and who's taking a principled stance against liberty (not to mention that an internet forum doesn't necessarily lend itself to a well-woven and organized consensus to begin with).

    IceTrey, EscherEnigma, and BubbaJones specifically but they are among others. I believe Trey and Jones to be thought experimenting and/or being pragmatic (esp. after reading comments not directed in response to me) and the remainder to be a troll but it's hard to say who's doing what and when.

  • Zeb||

    You can make the call as to whether EE is a troll. I don't believe he claims to be any kind of libertarian, though.

    Hazel Meade is probably another one for the list.

  • hello.||

    Hugh Akston and MJ Green have both strongly and unequivocally supported special protected class status for gays as well, although it's nice that they've magnanimously found it in their hearts to grant t-shirt makers a special exemption not afforded to any other public business.

  • IceTrey||

    Am I being praised or damned? It is hard to follow what's going on in these comments. I wish they would use Disqus so we'd get notices of replies.

  • hello.||

    No one who writes for Reason up to and including their token practicing catholic supports a general or specific religious exemption to these laws, let alone opposes the laws themselves. Nick Gillespie, Matt Welch and Katherine Mangu-Ward in particular are all in strongly and completely in favor of public accommodations in both the general and specific case and are on the side of the state against the bakers, photographers, B&B owners and florists who have had their businesses destroyed thus far.

  • Stephanie Slade||

    This is false.

  • This Machine Chips Fascists||

    see Just Say'n @ 1:38PM above

  • BestUsedCarSales||

    You can link to posts by clicking the little hash next to the time:

    http://reason.com/blog/2017/12.....nt_7052991

  • Longtobefree||

    How about a swastika?
    From Jewish t-shirt place?

    Point of order; the supreme court case is NOT about baking a cake, it is about specific decorations on the cake.
    One is a straight forward manufacturing process, and the shop will sell a cake to anyone. The other is artistic speech, and theoretically protected by the constitution. We shall see.

  • CE||

    Wedding cakes aren't manufactured. They are works of art, hand-crafted by the artist.

  • This Machine Chips Fascists||

    Even if I get it at Winn Dixie?

  • ||

    Not that libertarians would/should generally abide by or condone the distinction between mass production and artisanal craftsmanship with regard to government intervention.

    Like public accommodation and the government staying out of people's private lives is really only important in the niche 10% of the economy. The mass-production hill's gone, don't even think about fighting on it, we've always been at war over artisan crafted wedding cakes.

  • BYODB||


    Not that libertarians would/should generally abide by or condone the distinction between mass production and artisanal craftsmanship with regard to government intervention.


    This.

  • This Machine Chips Fascists||

    Imagine if a shop owner refused to make killer cool t-shirts for the cops on the Regional Aggressive Tactics And Total Annihilation Team. The outrage! Sean Hannity's head would explode.

    LEO wants to be a more protected class with 4 states already covering them under thought...I mean hate crime laws. So bake them a cake, or else.

  • This Machine Chips Fascists||

    This should be somewhere else.

  • Juice||

    It sucks that if you manufacture something to sell, you're assumed to be forced to sell it to anyone who wants to buy it, no matter what.

  • Unlabelable MJGreen||

    Point of order; the supreme court case is NOT about baking a cake, it is about specific decorations on the cake.

    Where do you get this? What are the specific decorations that Phillips rejected?

    A big reason Masterpiece Cakeshop has had such trouble is that it wasn't about writing a certain message or including certain symbols, as is the case here and other instances in Colorado that the state said did not violate public accommodation law.

  • IceTrey||

    The thing is if you go to his website it specifically says they can make a cake with any design you want.

  • BYODB||

    So this means that I can go into any T-Shirt makers store and make them print shirts that say 'Fags Ruin Sex' since heterosexual is a sexual orientation that's protected by law? Cool story. I don't think these morons thought this law through very carefully.

  • This Machine Chips Fascists||

    They may not think real good, but their intentions are pure _____.

  • Rich||

    Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive

    So, order a "blank" cake and write all the offensive stuff yourself. How hard is that?

  • ||

    Harder than going to one of the six bakeries who's operations departments spent millions training their employees to put whatever you want on the cake (or GTFO) and locating the stores more conveniently to you (not to mention online and over-the-phone ordering).

  • Bra Ket||

    Harder than you think I bet. The average unskilled person will need all kinds of stencils and planing and shit. It's hard to keep the sentences from trailing up or down and you misjudge letter sizes and run out of space before you finish the passage.

  • lafe.long||

    If some entrepreneur was smart, they'd open two shops across the street from each other - "LGBTees", and "Christees"

    They'd make a killing... and problem solved.

  • esd45suf||

    "Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with."

    Am I the only one who finds this to be the most disturbing part of this story? The courts have consistently ruled for the T-Shirt shop yet the Govt has repeatedly used taxpayer money to appeal the decisions despite being so clearly wrong.

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