A Note on the Kentucky Decision

A recent decision by the Kentucky Court of Appeals is the latest event in the five-year process Hands On Originals, a t-shirt printing company, has undergone in Lexington.

It started in 2012 when the owner, Blaine Adamson, declined to print t-shirts for the Lexington Pride Festival, an event hosted by Gay and Lesbian Services Organization. Adamson cited his Christian beliefs and offered to refer the group to another printer who’d happily take the job. There is no evidence that Adamson has discriminated against LGBT employees and LGBT customers who didn’t ask him to print messages that contradict his faith. Nevertheless, GLSO filed a complaint with the Lexington-Fayette Urban County Human Rights Commission. GLSO eventually obtained the products it wanted (for no cost!), but that didn’t matter. The Commission ruled against Hands On and required that the firm submit to diversity training.

Adamson didn’t back down. He took the case to the Fayette Circuit Court, which reversed the Commission’s judgment. The Commission didn’t back down, either. It took the reversal to the next step, the Kentucky Court of Appeals. In a two-to-one decision, the Court of Appeals upheld the Circuit’s decision. The Commission says it is considering whether to push the case to the Kentucky Supreme Court.

This newspaper story summarizes the opinions the Court of Appeals drafted for the case. Judge Kramer, for the majority, draws a clear distinction, one that should be obvious in religious liberty situations of this kind. It is one thing to refuse to serve LGBT individuals because of who they are. That’s against the law. But it’s another thing to make people express opinions that violate their beliefs. Because Hands On prints messages on shirts, the conscience of its owners comes into play. As Kramer wrote,

The “conduct” Hands On Originals chose not to promote was pure speech. There is no contention that Hands On Originals is a public forum in addition to a public accommodation. Nothing in the fairness ordinance prohibits Hands On Originals, a private business, from engaging in viewpoint or message censorship.

In his dissenting opinion, Judge Jeff S. Taylor doesn’t find that distinction persuasive. When Hands On declined to serve GLSO, it flatly engaged in “deliberate and intentional discriminatory conduct … in violation of the fairness ordinance.” The majority’s decision, he continues, means that “the ordinance protects gays or lesbians only to the extent that they do not publicly display their same-gender sexual orientation.”

But, of course, Hands On has done nothing to prevent gays and lesbians from “publicly displaying” their orientation. Adamson simply said that he would not provide the means to display that orientation. Taylor doesn’t recognize that assertion—or, rather, he regards Adamson’s refusal as the same thing as prevention. Like the LGBT movement as a whole, his opinion demands not just negative acceptance of same-sex orientation—that is, a tacit pledge not to interfere with same-sex conduct and initiatives. It wants positive affirmation—that is, participation in same-sex events when requested.

One cannot argue, however, that Hands On placed an undue burden on GLSO. The refusal meant an hour of lost time, that’s all. The t-shirts were made and the event came off just fine. The real problem for Judge Taylor and the complainants lies in Adamson’s basic religious objection to same-sex practice. That’s the actual target: a belief, a faith that will not bow to sexual progressivism. It’s more just for a religious believer to compromise his lifelong obedience to God and the church than it is for a customer to drive to another location to obtain a service.

In other words, Judge Taylor does not take religious vows seriously, but he takes the sensitivity of LGBT groups very, very seriously.

Mark Bauerlein is senior editor of First Things.

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