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Kentucky Supreme Court Decision Ignores the Real Issue

Summary:
Although I agree with the recent decision of the Kentucky Supreme Court in favor of a Christian businessman who refused to print “gay pride” T-shirts, the decision by the Court ignores the real issue. According to the Lexington-Fayette County Code of Ordinances, article II, “Lexington-Fayette County Human Rights Commission,” section 2-33, “Discrimination due to sexual orientation or gender identity,” paragraph 1: It is the policy of the Lexington Fayette Urban County Government to safeguard all individuals within Fayette County from discrimination in employment, public accommodation, and housing on the basis of sexual orientation or gender identity, as well as from discrimination on the basis of race, color, religion, national

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Although I agree with the recent decision of the Kentucky Supreme Court in favor of a Christian businessman who refused to print “gay pride” T-shirts, the decision by the Court ignores the real issue.

According to the Lexington-Fayette County Code of Ordinances, article II, “Lexington-Fayette County Human Rights Commission,” section 2-33, “Discrimination due to sexual orientation or gender identity,” paragraph 1:

It is the policy of the Lexington Fayette Urban County Government to safeguard all individuals within Fayette County from discrimination in employment, public accommodation, and housing on the basis of sexual orientation or gender identity, as well as from discrimination on the basis of race, color, religion, national origin, sex, disability, and age forty and over.

Hands On Originals, located in Lexington, Kentucky, “prints promotional materials such as shirts, hats, bags, blankets, cups, bottles and mugs for its customers.” The managing owner, Blaine Adamson, and the two other owners are “Christians who operate Hands On consistently with their understanding of the Bible’s teachings.” The business’s website contains the following “terms of service:”

Hands On Originals both employs and conducts business with people of all genders, races, religions, sexual orientations, 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.

In 2012, a representative from the Gay and Lesbian Services Organization (GLSO) of Lexington, “which represents and advocates for the lesbian, gay, bisexual, transgender, queer, questioning, intersex and allied community,” contacted Hands On Originals about printing T-shirts for an upcoming Gay Pride Festival. Adamson declined to print the T-shirts and offered to GLSO to another print shop. Although GLSO ultimately “procured the T-shirts from a Cincinnati business free of charge,” the group’s president filed a complaint on GLSO’s behalf with the Lexington-Fayette County Human Rights Commission alleging that Hands On Originals “denied GLSO the full and equal enjoyment of a service when Hands On refused to print the official t-shirts for the organization’s Pride Festival.”

After an investigation by the Commission, it was determined that Hands On Originals had violated the ordinance prohibiting “a public accommodation from discriminating against individuals based on their sexual orientation or gender identity.” The Hearing Commissioner “granted summary judgment in favor of GLSO and the Commission, permanently enjoined Hands On from discriminating against individuals because of their actual or imputed sexual orientation or gender identity, and ordered Hands On to participate in mandatory diversity training to be conducted by the Commission.”

Hands On Originals appealed to the Fayette Circuit Court and reversed the decision. After an appeal by the Commission and GLSO, the Kentucky Court of Appeals in 2017 affirmed the Circuit Court decision. The Commission then petitioned the Kentucky Supreme Court for discretionary review. Finally, on October 31, 2019—after seven years—the Court ruled that GLSO—since it is an organization and not an individual—did not have standing to “bring a discrimination claim under Section 2-33” and again ruled in favor of Hands On Originals.

The Court’s decision ignores the real issue. This is evident from just reading the first sentence of its decision: “The ability of federal, state and local governments to protect individuals from discrimination by places of public accommodation is beyond question.”

Discrimination is defined in the Kentucky Civil Rights Act as “any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person or persons, or the aiding, abetting, inciting, coercing, or compelling thereof made unlawful under this law.”

The Kentucky Civil Rights Act states that “a public accommodation, resort, or amusement includes any place such as a store, restaurant, hotel, motel, professional or other office or other establishment, either licensed or unlicensed, which supplies goods or services to the general public. It includes any establishment that solicits or accepts the patronage or trade of the public. It includes any establishment that is supported directly or indirectly by government funds.”

The only organizations in Kentucky not considered to be public accommodations are private clubs, rooming or boarding houses, and religious organizations.

Clearly, Hands On Originals, under Kentucky law, is a place of public accommodation and discriminated against GLSO when it refused to make gay pride T-shirts. In ruling against GLSO on the question of standing, the Court ignored the real issue. The real issue is simply this: should business owners have the right to discriminate?

Of course they should.

In a free society, business owners have the right to refuse service to anyone for any reason on any basis.

In a free society, “public accommodations” are still private businesses and therefore don’t have to accommodate all members of the public.

In a free society, no potential customer has a claim on the property or the time of any business owner.

In a free society, no one has any legal recourse if a business refuses to engage in commerce with him.

In a free society, businesses are able to discriminate against customers just as customers can now legally discriminate against businesses.

In a free society, the Lexington-Fayette County Human Rights Commission would not exist and Hands On Originals could discriminate against any potential employee or customer for any reason and on any basis.

Laurence M. Vance
Laurence M. Vance is an author, a publisher, a lecturer, a freelance writer, the editor of the Classic Reprints series, and the director of the Francis Wayland Institute. He holds degrees in history, theology, accounting, and economics. The author of twenty-four books, he has contributed over 700 articles and book reviews to both secular and religious periodicals.

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