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T-Shirt Maker Cannot Be Compelled To Make Shirts.

Hands-On-Originals-ROHHands on Originals is a Christian printing company based in Lexington, Kentucky.

In 2012, the Gay and Lesbian Services Organization (GLSO) sought quotes for tee-shirts for a Gay Pride Festival. The organizing committee called various shops asking for quotes based on a tee shirt with printing on the front and back of the shirt.

Hands on Original was the lowest bidder for the shirts. The GLSO then called Blaine Adamson, the owner of Hands On Originals in an attempt to negotiate a lower price for the tee-shirts. At this time, the caller identified the group he was representing and the fact that the message on the tee-shirts was to promote a gay pride festival and parade.

According to a complaint filed by the GLSO:

[Adamson’s] inquiries were related to what the GLSO was, what our mission was, and what we were promoting. The committee member explained, including that the t-shirt would only contain a stylized number “5″ on the front and the name of the festival, and sponsors on the rear.

When Blaine learned that it was a gay pride festival, he asked, “You know we’re a Christian organization, don’t you?” He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival. He suggested that he could refer us to a different business who would print the shirts. Our committee member told them he would take that offer to the board, but that he felt that we would not want to do business with anyone who did business with Hands On Originals, based on their discrimination.

On March 25th, the GLSO board met in emergency session and agreed to file a complaint with the HRC under the Lexington Fairness Ordinance.

In 2014, the Lexington-Fayette Urban County Human Rights Commission found that Hands on Originals had discriminated against the GLSO:

Hands On Originals discriminated against the Gay and Lesbian Services Organization of Lexington when it refused to print the group’s Lexington Pride Festival T-shirts in 2012, according to a hearing officer in the case.

Greg Munson issued his decision Monday. The Lexington-Fayette Urban County Human Rights Commission released it Tuesday morning.

“The evidence of record shows that the respondent discriminated against GLSO because of its members’ actual or imputed sexual orientation by refusing to print and sell to them the official shirts for the 2012 Lexington Pride Festival.”

Munson wrote that the application of the Fairness Ordinance did not violate the T-shirt vendor’s right to free speech and the free exercise of religion. The Human Rights Commission found in 2012 that Hands On Originals violated the city’s fairness ordinance, which prohibits businesses open to the public from discriminating against people based on sexual orientation. Nonetheless, the hearing process continued over two more years.

Because of the decision, Hands On Originals would not be allowed to “discriminate” in the future and its employees would have to attend diversity training.

The Alliance Defending Freedom had represented Hands On Originals and after the Human Rights Commission’s decisions decided to appeal.

On April 27, 2015, a judge ruled in favor of Hands On Originals.

Fayette Circuit Judge James Ishmael issued a ruling Monday reversing the Lexington Human Rights Commission’s 2014 decision that Hands On Originals violated Lexington’s fairness ordinance.

The ordinance, among other things, prohibits businesses from discriminating against people based on sexual orientation.

The case between Lexington’s Gay and Lesbian Services Organization and Hands On Originals over the company’s refusal to print the organization’s T-shirts apparently will go another round in court.

Ray Sexton, executive director of the Lexington Human Rights Commission, said an appeal was likely. He said the commission’s board would consider its next step at a meeting Monday evening.

Noted ULCA First Amendment law professor Eugene Volokh has a legal analysis of the judge’s decision. Volokh’s points include:

The Commission decided in favor of Baker, but on Monday, in Hands on Originals, Inc. v. Lexington-Fayette Urban County Human Rights Commission, a Kentucky trial court judge disagreed.

1. First, the judge concluded that Hands on Originals was discriminating based on the pro-gay-pride message that GLSO wanted printed, not based on the sexual orientation of GLSO’s representatives or members. This suggests that the judge thought the ordinance just didn’t apply on its own terms, quite apart from any restrictions imposed by the First Amendment or by Kentucky’s Religious Freedom Restoration Act. But as I read the opinion, the judge didn’t make any such specific finding about the inapplicability of the ordinance.

2. The judge did conclude, though, that applying the ordinance to Hands on Originals’ actions violated the First Amendment….

…..

3. The court also held that the commission’s actions violated the Kentucky Religious Freedom Restoration Act, which provides,

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion of programs or access to facilities.

The court first concluded, following the reasoning of the U.S. Supreme Court in Hobby Lobby (where the Court was interpreting a very similar federal statutory scheme) that the Kentucky RFRA applied to corporations such as Hands On Originals, and, “[b]ecause the Commission’s Order requires HOO and its owners to print shirts that convey messages contrary to their faith, that Order inflicts a substantial burden on their free exercise of religion.” And the court then concluded that the commission’s actions can’t be justified under the “strict scrutiny” (“compelling governmental interest” / “least restrictive means”) exception that the Kentucky RFRA provides:

[T]he Commission has not even attempted, much less shown by “clear and convincing evidence” or otherwise, that it has any compelling government interest in the consequences imposed upon HOO and its owners in this case. As previously mentioned, it is the understanding of this Court based on the record that GLSO was able to obtain printing of the t-shirts in question at a substantially reduced price or perhaps even had them printed for free. This was the offer extended by HOO owner Adamson in the initial phone conversation with a GLSO representative to refer GLSO to another printing company to do the work for the same price quoted by HOO. The Court holds that the Commission has not proven by clear and convincing evidence or otherwise that it has a compelling governmental interest to enforce in this case….

Volokh concludes with:

The [judge’s] analysis seems quite right to me.

Hands on Originals did not discriminate against anyone or any organization. If anything, the Human Rights Commission discriminated against Hands On Originals by saying their beliefs and religious activities were not acceptable to the Commission.

A fair outcome would be for the Executive Committee of the GLSO as well as those on the Human Rights Commission to be told they can no longer discriminate and they must attend diversity training which is what Hands On Originals was told they had to do.

We aren’t holding our breath for that to happen though as these cases are seldom about advancing or protecting rights and freedoms, but rather the government trampling the rights of people.





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