In an encouraging development, the Kentucky Court of Appeals has affirmed a lower court decision that the action of a Christian small business owner, in declining to print a T-shirt celebrating “Gay Pride”, is not unlawful. This case is one of a number that have raised issues about the freedom of those with religious convictions that homosexual behaviour is wrong, to decline to provide services in support of the opposite view. It is a significant decision which may influence the course of similar cases elsewhere.
The decision in Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals (Ky CA, No 2015-CA-000745-MR; 12 May, 2017) was an appeal from an earlier decision discussed in a previous post, “Cakes, t-shirts and religious freedom- an update” (28 April, 2015). To quote the previous summary:
[A] printer of T-shirts and promotional materials had declined to print advertising for a “Gay Pride” march. The company [was] found by the Human Rights Commission to have discriminated against the local Gay and Lesbian Services Organisation in its refusal.
Judge Ishmael overturned the finding of discrimination. His Honour noted that the company had operated in accordance with the Christian principles of its proprietor for some years, and had declined a number of previous printing jobs on the basis of the messages being conveyed (for example, shirts promoting a strip club and others containing a violence related message). He also noted that the former president of the GLSO, who had filed the complaint, [did] not identify as gay and [was] actually married to someone of the opposite sex. It was a particularly clear case where the refusal of the job was based on the message, and not the sexual orientation of the customer.
The issue was whether the refusal to print T-shirts celebrating pride in homosexuality, amounted to a breach of a local law, a “public accommodation ordinance”, Local Ordinance 201-99, Section 2-33. That law picked up a general prohibition under Kentucky law against “deny[ing] an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation” (KRS 344.120), which the local ordinance had extended to cover such denial based on “sexual orientation” (among other characteristics). “Public accommodation” was defined to include a “private business that supplies goods or services to the general public” (KRS 344.130).
In other words, was refusing to supply a T-shirt with a message of support for homosexuality, itself the denial of some individual “full and equal enjoyment” of some benefit? Two of the three judges in the Kentucky Court of Appeals said that the company had not behaved unlawfully.
Interestingly, however, the two judges offered two quite different reasons for upholding the lower court decision that the action of the company was not unlawful. The two reasons actually parallel the type of reasons I described in other cases in my article “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) 5 (3) Ox J Law Religion 385-430. To quote:
In general in considering the application of laws against discrimination on various prohibited grounds, there are two important issues: first, was the relevant decision prima facie discriminatory? And then, does some general ‘exemption’ or ‘balancing clause’ apply which recognizes a fundamental human right which may need to be acknowledged, authorizing what would otherwise be unlawful discrimination? (at 399)
Here the decision of Kramer CJ concludes that there has been no prima facie discrimination, and the decision of D Lambert J, while agreeing with the holding of the Chief Justice, also holds that there is a “religious freedom” balancing clause which is applicable.
For Kramer CJ, what the company did, did not amount to differential treatment of the relevant Gay and Lesbian Support Organisation on the ground of sexual orientation. It was not a question of denying the sale of a T-shirt to someone because they were gay. (Indeed, it emerged that the owner of the business, Blaine Adamson, made no enquiries about the sexual orientation of the person ordering the T-shirt, and the complainant in these proceedings, a Mr Baker, was a heterosexual person.) Instead, the ground of the decision was the message conveyed by the requested T-shirt, and messages of support for homosexuality can be given by anyone in the community.
It is worth noting that Kramer CJ did not base this decision on a distinction between “status” (sexual orientation) and “conduct” (homosexual activity). That is a contoversial distinction, which may have merit, but has been rejected as valid in a number of previous cases. But a third issue was at stake here: the question of speech. Her Honour defined the service provided by Hands On Originals in printing various items as “the promotion of messages” (at p 17). Her Honour noted:
conveying a message in support of a cause or belief (by, for example, producing or wearing a t-shirt bearing a message supporting equality) cannot be deemed conduct that is so closely correlated with a protected status that it is engaged in exclusively or predominantly by persons who have that particular protected status. It is a point of view and form of speech that could belong to any person, regardless of classification. (at 17)
Her Honour also noted that
[T]he right of free speech does not guarantee to any person the right to use someone else’s property… as a stage to express ideas. (at 15)
Hence there had been no unlawful discrimination.
D Lambert J, while agreeing on the outcome, took another approach. Kentucky has a local equivalent of the “Religious Freedom Restoration Act” which was enacted by some US States after a very narrow view of religious free exercise was adopted by the US Supreme Court. (For background on RFRA’s see this earlier post.) Kentucky’s statute, KRS 446.350, forbids actions by government that “substantially burden a person’s freedom of religion”, “unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”
Applying the US Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014), D Lambert J held that the company could rely on this statute, and that the genuine religious beliefs of the managers of the company were seriously burdened by being required to devote the resources of the business to expressing support for behaviour regarded as wrongful by their religion. The ordinance was not the “least restrictive way” of protecting the rights of gay and lesbian persons.
[T]he central issue here is whether the fairness ordinance is the least restrictive way for LFUCG to prevent local business from discriminating against members of the gay community without imposing a substantial burden on the exercise of religion. For the following reasons, I do not believe so.
Here, instead of providing an owner of a closely-held business, or the like, with an alternative means of accommodating a patron who wishes to promote a cause contrary to the owner’s faith, the fairness ordinance forces the owner to either join in the requested violation of a sincerely held religious belief, or face a penalty, i.e., support the furtherance of the offending cause or take a class on how to support it. Such coercion violates KRS 446.350. (at 20-21)
D Lambert J noted that “the owners of HOO offered to find a printer who would do the work at the same price quoted initially to accommodate the needs of the customer” (at 21, n 7). Presumably this sort of option might have been included in the legislation, and would have preserved a balance of religious freedom rights. Because this option was not available, the legislation was invalid in relation to this case.
The dissenting judge, Taylor J, would have held that the Commission was correct to find that there had been discrimination and that no religious freedom defence was available.
For those who follow these cases, the same sort of issues as here, are presented in the litigation in Northern Ireland involving the Ashers Bakery, whose Christian owners declined to provide a cake with a similar message, and who have been fined, and that fine upheld on an initial appeal. I have commented most recently on that litigation here; after that post it has now been announced that the Ashers will be allowed to make an application to appeal the decision to the UK Supreme Court, where a hearing is due to take place in October.
In each of these cases one complication that is often present in other such cases is absent: an impending same-sex wedding. Both of the cases involve the stark question as to whether the freedom of speech of business owners, the right to decline to be compelled to assert certain propositions which are contrary to their religious faith, has to give way to support for homosexuality. The Kentucky court, in my view, is correct to say that refusal to support the proclamation of a message, is not of itself unlawful discrimination. Messages of support for homosexuality come from all quarters of society, and are not solely put forward by homosexual persons.
The court is also correct, in my view, to say that even if such a refusal were to be regarded as prima facie discriminatory, the law ought to recognise that free exercise of religion strongly supports the right of those whose ethical commitments they see as coming from God, not to be required to compromise in these cases. Believers in these cases should not be required “either join in the requested violation of a sincerely held religious belief, or face a penalty” (D Lambert J at 21).
It is to be hoped that future cases of this sort will be decided in a similar way.