By Tom Latek
Kentucky Today
Oral arguments are being heard by the Kentucky Supreme Court today in a case involving an alleged violation of a local fairness ordinance by the refusal of a private business to print customized T-shirts for the Lexington Pride Festival.
In 2012, Hands-On Originals refused to print customized T-shirts for the Lexington Pride Festival, leading the Gay and Lesbian Service Organization to file a complaint with the Lexington-Fayette Urban County Human Rights Commission, alleging the city’s fairness ordinance was violated, and a hearing officer was named.
Since the facts were not in dispute, both parties agreed to submit arguments to the hearing officer and no public hearing was held. The hearing officer subsequently determined Hands-On Originals violated the fairness ordinance.
Kentucky’s Supreme Court
The company appealed to Fayette Circuit Court as provided by law and Judge James Ishmael reversed the hearing officer’s decision, finding the refusal to print the T-shirts was an exercise of Hands-On Original’s Freedom of Religion, under the First Amendment, and did not violate the fairness ordinance. He said if it was a violation, the ordinance was unconstitutional under the circumstances of the case. The Human Rights Commission appealed to the State Court of Appeals, where a three-judge panel upheld the lower court ruling, on a 2-1 vote in May 2017.
In their decision, the Appellate panel noted Hands-On Originals has a mission statement on their website which states their services are limited by the moral compass of its owners. It states, “Hands-On Originals both employs and conducts business with people of all genders, races, religions, sexual preferences, and national origins. However, due to the promotional nature of our products, it is the prerogative of Hands-On Originals [or HOO] to refuse any order that would endorse positions that conflict with the convictions of the ownership.”
The judges’ order said, “In this vein, the record provides examples of subject matter HOO has refused to promote because its ownership has deemed it morally objectionable, such as adult entertainment products and establishments.”
As a result, the Appeals Court found, “Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance.”
Then Appeals Court Judge Debra Lambert, who voted in the majority, wrote in a separate opinion, “I would affirm the trial court based on the reasoning of Burwell v. Hobby Lobby Stores, Inc. Hobby Lobby makes it clear that the Religious Freedom Restoration Act of 1993, allows closely held, for-profit entities, to freely advance their owners’ sincerely held religious beliefs, as long as those beliefs do not offend existing federal laws that pass strict-scrutiny.”
Since Lambert is now on the Supreme Court, she has recused from the case, meaning only six Justices will hear it.
The case has garnered national attention, as 15 groups have filed so-called “Friend of the Court” briefs on the case. They include Gov. Matt Bevin, and a joint brief from the Ethics and Liberty Commission, Jews For Religious Liberty and the Kentucky Baptist Convention, of which Kentucky Today is a part, supporting the lower court decisions.
Since only six Supreme Court justices are hearing the case, should there be a 3-3 tie when the decision is rendered, the Court of Appeals ruling, which was in favor of Hands-On Original, will stand.
