A closely watched case in Kentucky ended without resolving the primary underlying issue. The state’s Supreme Court this week dismissed a complaint brought by the Lexington Human Rights Commission on behalf of a gay rights organization. The court ruled that Lexington’s non-discrimination ordinance at issue allows only individuals – and not organizations – to bring a suit for violations of the law, which prohibits businesses that are open to the public from discriminating on the basis of sexual orientation.
The defendant, a printing company called Hands On Originals, had refused a request to make t-shirts for a gay pride festival, citing the business owners’ religious opposition to same-sex relationships. The company argued that the First Amendment’s prohibition against compelled speech protects it against enforcement of the nondiscrimination law where the company’s objection is not to the sexual orientation of the customer, but to the expressive content of the t-shirt.
The court’s decision left that question unanswered, turning instead on the definition under Kentucky law, which differentiates between an “individual” and a “person.” If the Lexington ordinance provided that persons (which includes both individuals and organizations) can sue for violations of the nondiscrimination ordinance, then the First Amendment question in this case could proceed. Here, however, the law provides that only “individuals” can sue. Thus, the court held, the Gay and Lesbian Services Organization (GLSO), the original plaintiff in the case, could not bring the challenge.
Although the court dismissed on those grounds alone, one justice wrote separately to weigh in on the free speech issue, in favor of Hands On Originals. Here is an excerpt:
In this case, what distinguishes whether the Commission is permissibly regulating conduct, i.e., prohibiting discrimination, or impermissibly crossing the line in an attempt to compel expression, a message? The record discloses three essential facts, which are conceded by the Commission: First, Hands On has an established practice of declining orders because of what Hands On perceives to be their morally-objectionable messages, no matter who requested them. … Second, Hands On accepted and completed an order from a lesbian singer who performed at the 2012 Pride Festival. Third, at no time did Hands On inquire or know the sexual orientation or gender identity of the persons with whom it dealt on behalf of GLSO. These facts indicate that Hands On was in good faith objecting to the message it was being asked to disseminate.
Previously, a Kentucky Appeals Court ruled in favor of Hands On Originals and found that the Free Speech guarantees of the First Amendment protects the company in this case from the nondiscrimination law because of the expressive content of the T-shirt in question. The appeals court did not address in its written opinion the standing argument that the state Supreme Court relied on this week.
A trial court had earlier ruled that Kentucky’s Religious Freedom Restoration Act (RFRA) also applied and protected the business in this case, a defense that neither the appeals court nor the Kentucky Supreme Court addressed.