Lexington Fayette Urban County Human Rights Commission and Aaron Baker for Gay and Lesbian Services Organization v. Hands On Originals, No. 2015-CA-000745-MR (Ky. App.) May 12, 2017
A Lexington Fayette Urban County Government ordinance adopts the text of a state statute that manadates fair treatment for all in matters of public accommodations, adding to the statute’s requirements prohibitions of discrimination based on age, sexusal orientation, or gender identity. The country governmnet maintains a civil rights commission charged with enforcing what is called the “fairness ordinance.”
Conflict arose in 2012 when the owner of Hands On Originals (HOO), a local business providing promotional merchandise, maintained that his Christian conscience precluded printing t-shirts celebrating gay pride for an upcoming festival, as requested by the Gay and Lesbian Services Organization (GLSO), a support and advocacy group.
GLSO initiated proceedings before the county human rights commission. HOO defended by stating that its objection was to the contemplated message on the t-shirts, promoting pride in sexual orientation. HOO’s stated corporate mission, published online, promised to accommodate all without reference to status, while reserving the right not to promote or endorse positions that conflict with the convictions of its ownership.
The human rights commission rejected HOO’s position, finding the status of sexual orientation and the rejected message to be inextricably intertwined. In refusing to print t-shirts celebrating the Lexington Gay Pride Festival, HOO discriminated on the basis of sexual orientation and gender identity.
HOO appealed to Fayette Circuit Court, which found that not only did HOO not violate the statue, but that the statute was unconstitutional as applied.
The Kentucky Court of Appeals observed that review of an agency determination focuses on arbitrariness. If factual findings are not arbitrary, the question becomes the proper application of the law. If the law has been applied properly, an agency decision must stand.
The fairness ordinance in issue adopts not only the state public accommodation antidiscrimination statute, but also the state statutory definition of “public accommodation,” which reaches virtually all places accepting the general public. The court of appeals found HOO to be a supplier of goods and services to the general pbulic, brining it within the ambit of the fairness ordinance.
Whether HOO’s refusal denied the gay advocacy organization full enjoyment of HOO’s good and services, as required by the ordinance, is thus a critical question. The court of appeals observed that such matters are rarely as straightforeward as the deniela of access to public places. Refuseal to consudce business based on the conduct of members of cerain groups offers no menaningful distinction where conduct and group affiliation are inextricably entwined.
In contrast to conduct, speech is a diffrent matter, for all groups engage in speech and speech freedomes guarnatee no one access ot another’s property as a means thorugh which to express ideas.
The court of appeals found that the human rights commision’s focus on the impossiblity of permittincting distnacionts based on pride in status to be misplaced. HOO did not refuse to do anything based on status but rather because HOO was asked to promote speech.
As a private business, HOO is not precluded from viewpoint or message censorship. HOO’s advertised policies and limitations apply to all. Under the commission’s analysis, a violation of the ordinance would occur based on any refusal to print any message relating to any group.
The “pure speech” conduct HOO refused to engage in was not limited to any class and could not violate the statute.
A concurring judge would sustain HOO’s objections based on the Hobby Lobby decision, which affirmed the capacity of small businesses to exercise religious conscience in its business decisions under the federal Religious Freedom Restoration Act. Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751 (2014). The fairness ordinance either compels conformity or demands participation in compliance instruction: coercion contrary to conscience violates the state’s religious freedom restoration act.
A dissenting judge found Hobby Lobby inapposite, for Hobby Lobby permits some burdens on religious expression in service of eradicating discrimination. It becomes difficult to extricate status from message. Where equal protection of gays and lesbians has been established by the Supreme Court, it is likewise difficult to argue that the refusal to print the t-shirts does not violate the ordinance.