A Lexington, Kentucky court recently weighed in on the distinction between refusing to serve a gay customer and refusing to print a pro-gay message. The First Amendment may protect the latter, but maybe not the former? And it’s easy to see where the result may be a little confusing.
The case arose when a company called Hands On Originals refused to print official t-shirts for the Gay and Lesbian Services Organization’s 2012 Pride Festival. HOO publishes the following notice on its Web site:
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 to refuse any order that would endorse positions that conflict with the convictions of the ownership.
Over the past several years, HOO has declined at least 13 orders where it believed the designs were contrary to the Christian beliefs of its owners. When GLSO approached HOO about making the official t-shirt, Blaine Adamson, an HOO owner, inquired about the message promoted at the GLSO Pride Festival. Included in the message was the promotion of “romantic relationships and sexual activity outside of marriages between a man and a woman.” In Adamson’s view, printing t-shirts with the words “Lexington Pride Festival” would communicate the “message that people should take pride in sexual relationships or sexual activity outside of a marriage between a man and a woman.” In Adamson’s view, he would be disobeying God if he were to authorize HOO printing the shirts. Accordingly, HOO passed.
The Lexington-Fayette Urban County Human Rights Commission ruled HOO violated a local ordinance that prohibits a public accommodation from discriminating against individuals based on their sexual orientation. HOO appealed that decision to the Fayette Circuit Court. That Court reversed the Commission’s ruling and ordered it to dismiss all charges against HOO. Confused?
The Circuit Court concluded that HOO was not declining service to the GLSO based on its members’ sexual orientation. It was declining to endorse a message with which it disagreed. Presumably, had the GLSO asked HOO to print shirts congratulating the UK men’s basketball team, HOO would have printed them no questions asked. But in the Court’s view, the Commission was ordering HOO to convey a message. And that sounds like compelled speech, which violates the First Amendment.
The Court noted there was no evidence that “the sexual orientation of any individual that had contact with HOO was ever divulged or played any part in this case.” Or, in other words, it’s possible the person who actually dealt with HOO on behalf of the GLSO was heterosexual, which would pretty much negate the GLSO case.
This case may illustrate the distinction between the message and the messenger, or it may highlight the complexity of the issue. In the wake of the controversy surrounding Indiana’s adoption of its religious freedom act, some people argued that if the law didn’t pass, Muslim storeowners could be forced to serve pork. This case demonstrates the fallacy of that argument. The Muslim store owner doesn’t serve pork to anyone – there’s no discrimination. It’s like a vegan restaurant not serving meat. The customer’s sexual orientation or religion is irrelevant.
And apparently it is here. HOO is not refusing business based on a potential customer’s sexual orientation. It is simply not willing to print a message it finds offensive. And it would presumably refuse the business no matter who the customer happened to be. In short, the government can tell you who to serve, but not what to say. Clear as day, right?