The Kentucky Supreme Court has ruled that an organization that sued Hands On Originals ("Hands On"), a t-shirt print company, for discrimination lacked standing to pursue the claim. In its October 31, 2019 order dismissing the case, the court ruled that, under the city non-discrimination ordinance, an "individual" needed to bring a claim.

Facts

In this nationally-watched case, Hands On is owned by three Christians who disapproved of same-sex marriages and nonmarital sexual relations between a man and a woman. The Gay and Lesbian Services Organization (GLSO) is a Kentucky non-profit LGBTQ+ advocacy organization that holds an annual "Lexington Pride Festival."

In February 2012, a GLSO representative submitted a proposed "Lexington Pride Festival" t-shirt design to Hands On. A Hands On employee, not an owner, took the order and quoted a price. The next month, a different GLSO representative contacted one of the owners who reviewed the design and advised GLSO that because of his beliefs Hands On would not fill the order. The owner did not inquire into the sexual orientation of the GLSO caller. He did offer to refer GLSO to another printing shop, and ultimately a company in Cleveland printed the shirts at no cost.

The president of GLSO filed a complaint on behalf of the organization with the Lexington-Fayette Urban County Human Rights Commission. The commission ruled in favor of GLSO and ordered Hands On to stop discriminating based on actual or perceived sexual orientation or gender identity.

The Question of Standing: A Person is not an Individual

As the case went through the courts, the issue of standing became prominent – can an organization claim that it has been discriminated against based on actual or perceived sexual orientation or gender identity? Who could assert a right under the ordinance?

This gets a bit complicated, but here's the logic the Kentucky Supreme Court followed.  The ordinance, Section 2-32(2)(a) says, "An individual claiming to be aggrieved… may file with the commission a verified complaint…" (Emphasis added.)

The ordinance did not define the term "individual," but a related code section in Kentucky Law, KRS 344.010(1) defines the word person as:  "One (1) or more individuals, labor organization, joint apprenticeship committees, partnerships, associations, corporations…"

KRS 344.010(1) says that it is "an unlawful practice for a person to deny an individual the full and equal enjoyment of the goods, services, … and accommodations of a place of accommodation."

The Court's explanation of this distinction can be read in its ruling, but suffice it to say that a person in the law would include a company but the only party that could bring the complaint is an individual. This may seem pedantic, but one way to think of this is that a company can be separated into different human beings, but a particular human being cannot be split, so each is an in-dividual. 

The Bigger Story

As seen in the Masterpiece Cakeshop case, courts are extremely reluctant to squarely address the parameters of the free exercise of religion and free speech rights of small business owners in the context of LGBTQ+ discrimination.  In Masterpiece Cakeshop, the U.S. Supreme Court was able to find a way to rule that the business owner's due process rights had been violated and that he had not been treated fairly by the lower commission.  In this case, the Kentucky Supreme Court was able to make what is arguably a more straightforward distinction by pointing out that the aggrieved rights organization could not claim to be an individual for discrimination purposes.

One judge, who concurred with the Kentucky Supreme Court's decision, briefly touched on the free exercise of religion and free speech rights of the owners of Hands On, and briefly visited the issue of whether printing a pre-designed symbol on shirts constituted conduct or speech. The judge concluded that even if standing existed, the print company should have prevailed.

As in Masterpiece, the primary free exercise and free speech issues of Hands On remain unresolved, and it is only a matter of time before an actual "individual" approaches the company with a print request. In that case, the Kentucky Supreme Court would have to decide the case on its merits.

Had standing been established, the decision would have turned on whether Hands On was protected by Kentucky's state-level Religious Freedom Restoration Act ("RFRA"), which was passed in 2013. Under Kentucky's RFRA, the courts would have needed to balance the free exercise interests of the company with the anti-discrimination interests of the government.

As it stands, this decision rests on Kentucky statutory interpretation and it is not likely that the United States Supreme Court will agree to hear an appeal.

 

Link to Decision:

Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, KY Sup. Ct., Oct. 31, 2019

 
 

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