A lawyer for Lexington-based Hands on Originals told a three-judge panel of the Kentucky Court of Appeals Tuesday his client objected to the message on a 2012 Lexington Pride Festival T-shirt but does not discriminate against gays or same-sex couples.
Jim Campbell, a lawyer with the nonprofit Alliance Defending Freedom, said Blaine Adamson, the owner of Hands on Originals, has also not printed shirts and other memorabilia that depicts illegal drugs and other messages that Adamson’s religious and personal beliefs did not support. Adamson and Hands on Originals have a First Amendment right to free speech, and that includes the right not to promote messages Hands on Originals does not agree with, Campbell said.
“The record shows that they have declined over the years to promote messages that promote illegal drug use or strip clubs or pornographic movies or violent messages,” Campbell said during oral arguments Tuesday. “Hands on Originals declined to print the shirts in question because of the messages on them, not the sexual orientation of the individuals who asked for them.”
But lawyers for the Lexington Human Rights Commission countered that it’s impossible to separate the message from discrimination against a class of protected people.
“At what point does this message stop?” said Ed Dove, a lawyer with the Lexington Human Rights Commission. “You can’t separate the message from the discrimination. That’s a red herring.”
The legal battle over whether Hands on Originals violated Lexington’s so-called “fairness ordinance” began more than four years ago.
The case stems from the company’s refusal in 2012 to print Lexington’s Gay and Lesbian Services Organization T-shirts for the Lexington Pride Festival.
The ordinance, among other things, prohibits businesses from discriminating against people based on sexual orientation.
Hands On Originals officials said they declined the T-shirt order because of religious beliefs and disagreement with the shirt’s message, which included the words “Lexington Pride Festival” with a list of sponsors of the gay-pride event on the back. Lexington’s Human Rights Commission decided in 2014 that Hands on Originals had violated the fairness ordinance.
The Human Rights Commission’s decision was appealed to Fayette Circuit Court.
In April 2015, Fayette Circuit Judge James Ishmael overturned the commission’s 2014 ruling.
In his decision, Ishmael said there was no evidence that Hands On Originals or its owners “refused to print the T-shirts in question based upon the sexual orientation of GLSA or its members or representatives. ... Rather, it is clear beyond dispute that (Hands On Originals) and its owners declined to print the T-shirts in question because of the message advocating sexual activity outside of a marriage between one man and one woman.”
During Tuesday’s oral arguments, Dove countered that declining to serve a protected population — such as Lexington’s gay, lesbian and homosexual population — based on message has been struck down in other court cases. Dove said allowing Hands on Originals to discriminate based on their religious beliefs against a class of people who are protected under the city’s fairness ordinance will open the door for other businesses to discriminate.
“To allow them to separate a group of people because they don’t like their message opens the door to a lot of arbitrary and discriminatory decisions,” Dove said.
Campbell said Hands on Originals and its owner Adamson regularly print products for people Adamson knows are gay and lesbian. He has also had gay and lesbian employees. He did not discriminate against a person but a message, Campbell stressed repeatedly.
Chief Court of Appeals Judge Joy Kramer said during Tuesday’s hearing that it was not clear when the court would issue its decision but hoped it would be in the next 90 days.
The question of whether businesses may cite their faith in rejecting jobs serving lesbian, gay, bisexual and transgender customers has been discussed nationwide over the past several years after Indiana enacted its “Religious Freedom Restoration Act,” which gives businesses that right.
Kentucky has had a similar law on its books since 2013. Under the controversial religious-freedom bill, someone with “sincerely held” religious beliefs may disregard state laws “unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing” the person's religious freedom.