Kentucky

7-year Lexington fight over shop’s refusal to make gay pride T-shirts to go before Supreme Court

The Rainbow Flag was created by a Kansas native

The Rainbow Flag has become a symbol of the LGBT movement around the world. It was created in 1978 by Gilbert Baker, an activist, flag maker and Kansas native.
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The Rainbow Flag has become a symbol of the LGBT movement around the world. It was created in 1978 by Gilbert Baker, an activist, flag maker and Kansas native.

More than seven years after a Lexington shop refused to make T-shirts for the 2012 Lexington Pride Festival, the Kentucky Supreme Court will hear arguments Friday about whether or not the company violated the city’s Fairness Ordinance.

Before the case began moving through the court system, the Lexington-Fayette Urban County Human Right’s Commission accused the business of violating the ordinance that prohibits discrimination. In 2015, Fayette County Circuit Court Judge James Ishmael reversed the commission’s decision, saying there was no violation.

The Kentucky Court of Appeals upheld Ishmael’s ruling in 2017 with a 2-1 vote.

Despite losing before two courts, the commission maintains that the business violated the ordinance, and hopes that a decision by the state supreme court will help guide commissions across the country facing similar questions.

Much of the debate in the case boils down to whether or not Hands On Originals refused to provide a service because of the sexual orientation of a customer — the Gay and Lesbian Services Organization — or refused to print a message that does not align with its beliefs.

The human rights commission argues that the shirt company sells goods or services to the general public, a so-called public accommodation in the ordinance, and can’t deny goods or services because of race, gender, national origin or other factors.

Attorneys arguing on behalf of Hands On Originals said that the “service” the business provides by printing shirts is the promotion of messages, making its decision a freedom of speech issue.

Ishmael and the appeals court found there was no proof that the business declined to make the shirts because of the customer’s sexual orientation. In his ruling, Ishmael said, in part, “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.”

The design of the T-shirt included the words “Lexington Pride Festival” and a large “5” containing dots in a rainbow of colors to mark the city’s fifth pride festival.

Ray Sexton, the director of the Lexington-Fayette Urban County Human Rights Commission, believes that the “messaging” of the shirt distracts from the discrimination.

“It seems like the bare-bones allegations are getting lost in the freedom of speech and message of the shirt issue,” Sexton said. “If this case was truly about the message on the shirt, they would’ve rejected it from the beginning ... it wasn’t until they found out who the shirt was for that they denied the service.”

Jim Campbell, the senior attorney representing Hands On Originals on behalf of the non-profit Alliance Defending Freedom, said that the business serves everyone, but does not print certain messages.

Hands On Originals should not be forced to print a shirt with messaging against its owners’ religious beliefs, and a gay shirtmaker should not be forced to print a shirt that expresses religious beliefs that go against gay marriage, Campbell argued.

“This cuts across ideological lines,” Campbell said.

It’s possible the decision in this case could influence future cases.

If the state Supreme Court rules in favor of Hands On Originals, Campbell said the court would “protect speech across the board.”

Sexton said he hopes that the Kentucky Supreme Court will make a ruling on the case that provides guidelines for other commissions around the country.

In 2018, a U.S. Supreme Court ruling in favor of a Colorado baker who refused to make a wedding cake for a gay couple did little to answer questions about a business’ ability to decline service in cases where sexual orientation is a factor.

Sexton said he hopes that in the Hands On Originals case, a ruling will be made on the facts rather than technicalities. He also hopes the case is not sent back to a lower court for more hearings.

“I stand by our investigation and our process, I don’t think there’s a way they can send it back,” Sexton said. “I don’t think they’ll have a choice but to make a decision on the facts of the case.“

Last year, Kentucky Gov. Matt Bevin submitted a legal brief to the state Supreme Court in support of Hands On Originals.

Bevin’s attorneys said forcing the business to make the shirts, and therefore “promoting homosexuality,” would violate religious freedom.

The Gay and Lesbian Services Organization, the group that first ordered the shirts in 2012, is now called the Pride Community Services Organization.

Oral arguments in the case are scheduled to begin at 10 a.m. Friday. The Kentucky Supreme Court provides live video of oral arguments on its website at https://kycourts.gov/courts/supreme/Pages/OralArguments.aspx.

Colorado cake baker Jack Phillips and Charlie Craig and Dave Mullins, the same-sex couple for whom Phillips declined to make a wedding cake, were at the Supreme Court to witness arguments in the case.

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