Tortured Kentucky court ruling brings mixed results for anti-LGBTQ groups

Refusing to print shirts for a pride festival somehow isn’t about identity.

Blaine Adamson, owner of Hands On Originals. CREDIT: Alliance Defending Freedom
Blaine Adamson, owner of Hands On Originals. CREDIT: Alliance Defending Freedom

The Kentucky Court of Appeals issued a decision Friday concluding that a Lexington print shop was not discriminating when it refused to produce t-shirts for a local Pride festival, but simply engaging in free speech. But this decision was notably weaker than a lower court ruling that suggested “religious freedom” was on the line.

The case is now five years old, and likely not yet closed. Back in 2012, Blaine Adamson, owner of Hands On Originals (HOO), refused to print t-shirts for the Gay and Lesbian Services Organization (GLSO). The desired shirt would have been for the fifth anniversary of the Lexington Pride Festival, and would have featured the name of the festival along with a stylized “5” in a rainbow design.

Adamson said it violated his religious beliefs to support the message of the festival; “that it’s advocating pride in being gay and being homosexual,” as he described it in one deposition.

The GLSO filed a complaint against HOO, and the Lexington-Fayette Urban County Human Rights Commission agreed that Adamson had likely violated the city’s nondiscrimination ordinance, which includes protections on the basis of sexual orientation and gender identity. The Commission issued its final ruling in 2014, concluding that Adamson was in the wrong, explaining, “Those members of protected classes who outwardly express pride in their own religion or sexual orientation do so because of their self-identification of being within that classification of persons.”

The following year, a Kentucky state judge reversed that ruling. In the decision, which was notably issued before the U.S. Supreme Court’s marriage equality ruling in Obergefell v. Hodges, Circuit Court Judge James Ishmael ruled that Adamson wasn’t discriminating on the basis of sexual orientation, but refusing to print a message supporting an organization that advocates “sexual activity outside of a marriage between one man and one woman.” Adamson was protected by the state’s Religious Freedom Restoration Act (RFRA) and a law requiring him to print the shirts “inflicts a substantial burden on [his] free exercise of religion.”

Three judges, three opinions

All three judges on the appeals court panel issued separate decisions. The prevailing opinion, issued by Chief Judge Joy Kramer, avoids any “religious freedom” implication. Instead, Kramer engages in some rather incredible linguistic gymnastics to conclude that Adamson’ decision was protected as free speech.

Kramer acknowledged that in other cases, like those against bakers and florists who have refused to provide their services to same-sex couples for their weddings, it’s clear the discrimination is on the basis of sexual orientation because presumably only someone with a non-heterosexual orientation would enter a same-sex marriage. But “speech,” she wrote, “cannot be considered an activity or conduct that is engaged in exclusively or predominantly by a particular class of people.”

She explained, “The GLSO itself also has no sexual orientation or gender identity: it is a gender-neutral organization that functions as a support network and advocate for individuals who identify as gay, lesbian, bisexual, or transgendered [sic].” The representative from GLSO who called Adamson happened to be a heterosexual, cisgender man, but he never disclosed his sexual orientation. Indeed, Adamson openly admitted he refused service because of the presumed orientation of the members of an organization that has “gay and lesbian” in the title.

But according to Kramer, because GLSO and the Pride Festival are open to all, “it functions as a support network and advocate for others.” And despite the simplicity of the logo, “the GLSO’s desire to sell these shirts to everyone clearly imparted a message: Some people are gay, lesbian, bisexual, and transgendered [sic]; and people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals.” This, of course, ignores the history of Pride, which was not originally a call for equality, but an act of resistance to discrimination commemorating the Stonewall Riots. Kramer’s reasoning is that a law designed to protect LGBTQ people can’t be enforced against someone who opposes LGBTQ people identifying themselves proudly in public.

Kramer concluded with this remarkable paragraph seemingly justifying various forms of discrimination simply because a spokesperson for the group doesn’t happen to share the group’s identity:

A contrary conclusion would result in absurdity under the facts of this case. The Commission’s interpretation of the fairness ordinance would allow any individual to claim any variety of protected class discrimination under the guise of the fairness ordinance merely by requesting a t-shirt espousing support for a protected class and then receiving a value-based refusal. A Buddhist who requested t-shirts from HOO stating, “I support equal treatment for Muslims,” could complain of religious discrimination under the fairness ordinance if HOO opposed equal treatment for Muslims and refused to print the t-shirts on that basis. A 25-year-old who requested t-shirts stating, “I support equal treatment for those over forty” could complain of age discrimination if HOO refused on the basis of its disagreement with that message. A man who requests t-shirts stating, “I support equal treatment for women,” could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message. And so forth. Clearly, this is not the intent of the ordinance.

Judge James Lambert agreed with Kramer’s outcome but wrote a separate concurring opinion with very different reasoning. Like the lower court judge, he said that HOO is protected by the state’s RFRA. The print shop’s owners didn’t refuse to print the shirts because of the GLSO members’ sexual orientation, but because they “believe the lifestyle choices promoted by GSLO conflict with their Christian values.” Holding HOO accountable for violating the city’s ordinance because of “a sincerely held religious belief” amounts to “coercion.”

In his dissent, Judge Jeff Taylor was having none of it. HOO’s conduct “clearly violates” the nondiscrimination ordinance, he wrote, “in that HOO’s conduct was discriminatory against GLSO and its members based upon sexual orientation or gender identity.” The linguistic gymnastics are not necessary because Adamson made clear he refused the order as soon as he learned the festival advocated LGBTQ pride.

And Taylor didn’t hesitate to ridicule Kramer’s reasoning. “One member of the majority upholds circumventing the public accommodation issue by holding that GLSO as an entity, has no sexual orientation and thus is not protected by the ordinance,” he wrote. “This argument fails on its face.”

If the majority is right, he concluded, “that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same-gender sexual orientation,” a result that “would be totally contrary to legislative intent.”

Taylor was the only judge of the three who cited Obergefell, noting that HOO and Adamson “refused to print GLSO’s t-shirts because of their religious beliefs against same-sex relationships.” Given those relationships are now “recognized under the United States Constitution as a fundamental right,” the court is “bound to follow” that law, regardless of whether that was the status quo five years ago.

Not the win they wanted

Conservatives have lost every wedding vendor discrimination case they’ve fought, which makes the Hands On Originals case one of their only wins for anti-LGBTQ discrimination. They were unsurprisingly elated at the result.

The Alliance Defending Freedom (ADF), an anti-LGBTQ hate group that helped represent Adamson, immediately sent out an email asking for donations because of the win. ADF Senior Counsel Jim Campbell, who has personally argued the case, proclaimed, “Today’s decision is a victory for printers and other creative professionals who serve all people but cannot promote all messages.”

Other anti-LGBTQ hate groups joined in the celebration. The Becket Fund for Religious Liberty, which also helped represent Adamson, was similarly jubilant. The Family Research Council applauded ADF’s win, and its president, Tony Perkins, opined, “We hope to hear soon that the U.S. Supreme Court will accept the Masterpiece Cakeshop case and ensure that the owner, Jack Phillips, will be free to follow his religious beliefs without fear of punishment by the government.” He was referring to a Colorado baker who refused to sell a wedding cake to a same-sex couple and last year lost his case at the Colorado Supreme Court.

Perkins seemed to be hoping that because the two cases ended in different results, that split might motivate the U.S. Supreme Court to take up one of the cases to resolve the conflict. But as the ACLU’s Joshua Block pointed out on Twitter, this is unlikely to happen. Not only were the cases decided on completely different merits, but Kramer actually approvingly cited the Masterpiece Cakeshop case to distinguish it from the Hands On Originals case. Indeed, though Adamson technically won, Block still called the outcome a “big loss for ADF.”

At any rate, the Hands On Originals case will still have to proceed to the Kentucky Supreme Court before either side can be appeal it to the U.S. Supreme Court.