In a narrowly drafted opinion, the Kentucky Court of Appeals has ruled that the government could not compel a Christian printer to promote messages that violated his religious beliefs. In 2012, the Gay and Lesbian Services Organization (GLSO) asked the shop to print shirts for the fifth anniversary of the Lexington Pride Festival, and Hands On Originals (HOO) owner Blaine Adamson refused on religious grounds.
The GLSO complained to the county human rights commission which agreed that Adamson had violated a nondiscrimination ordinance.
Earlier on, the trial judge found that Adamson had not been discriminating on the basis of sexual orientation. Instead, Adamson had decided not to print the shirts because he did not want to support an organization that advocated "sexual activity outside of a marriage between one man and one woman." Adamson, the judge ruled, was protected by the state's Religious Freedom Restoration Act (RFRA). However, the U.S. Supreme Court's subsequent decision in Obergefell rendered the "marriage" part of this argument moot.
The case now proceeded to the Kentucky Court of Appeals, the step just below the Kentucky Supreme Court, and each of the three judges issued separate opinions last week.
Judge Joy Kramer wrote the primary decision finding that Adamson's refusal was protected on free speech grounds. Kramer also found that the GLSO could not assert that it was discriminated against because the representative of GLSO contacted HOO to place the order was a heterosexual man who never disclosed his sexual orientation to Adamson, even he requested the Pride shirt, and therefore he was not a member of a protected class.
Kramer concluded that an organization acting on behalf of a protected class is not covered by the nondiscrimination ordinance. In her decision, Kramer paints a picture of several, in her words, "absurdities" of a Buddhist calling on behalf of a Muslim, or a 25-year-old opposing discrimination for those over 40. Despite Kramer's attempt to paint these as "absurd" examples, this argument is not likely going to survive legal, or logical, muster.
Judge Kramer's decision may just set up Hands on Originals for another lawsuit if the person who makes the call is a member of a protected class.
Judge James Lambert provided a stronger religious freedom opinion on behalf of HOO that closely followed the trial court's determination that HOO was protected by the state RFRA and that applying the ordinance against HOO by requiring Adamson to print shirts that violated his religious beliefs would represent "coercion."
Judge Jeff Taylor dissented finding that Judge Kramer's reasoning did not work because Adamson had not analyzed who was making the request – he just refused to print as soon as he heard about nature of the print request. Judge Taylor also noted that the trial judge's opinion that Adamson's real motivation was not LGBT discrimination but opposition to extra-marital sexual activity was no longer good law under Obergefell.
In recent years, most small business owners who have refused service to potential LGBT customers for same-sex weddings or other related services have lost in court. Despite drawing national attention, the the Supreme Court has declined to hear these cases – perhaps waiting for a case that allows the Court to properly weigh the issues of religious freedom and free speech against minority rights. But this may not be the case. In focusing on the identity of the people in the conversation, this state appellate decision is probably drafted too narrowly. But if the Kentucky Supreme Court agrees with the prevailing opinion, or at least the secondary RFRA argument, and that decision is appealed to the Supreme Court of the United States, the Supreme Court may soon be hearing this case and develop a test for deciding whether religious rights or LGBT rights will win when they compete.

The full decision in Baker v. Hands on Originals rendered May 5, 2017 is available here.

Illustration: / belchonock


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