by Travis Weber, J.D., LL.M.
April 28, 2015
In an Opinion and Order released yesterday — and a model explanation of what the First Amendment is designed to protect — a Kentucky state court judge explained why a small business owner could not be forced to print a message to which he objected on t-shirts requested by a customer.
Hands on Originals (HOO) is a small business in Kentucky which makes promotional products like hats, shirts, bags, etc., and prints messages on these products for its customers. The business is owned and run by Blaine Adamson and other Christians who want to express their faith as they run their business.
HOO was asked to produce t-shirts for the “Lexington Pride Festival” organized by the GLSO (Gay and Lesbian Services Organization), but the owners had personal objections to promoting the message of the event and preferred not to.
For as the Kentucky court notes, “producing the t-shirts as requested would require HOO to print a t-shirt with the words ‘Lexington Pride Festival’ communicating the message that people should take pride in sexual relationships or sexual activity outside of a marriage between a man and a woman,” and “Adamson has consistently expressed his belief that this activity would disobey God if he were to authorize HOO to print materials expressing that message.”
“Thus, Adamson told [GLSO] that HOO could not print the t-shirts because those promotional items did not reflect the values of HOO and HOO did not want to support the festival in that way.”
Based on the above, the Kentucky court clearly and unambiguously found that the First Amendment protected Adamson and HOO from government coercion requiring them to print the t-shirts.
The First Amendment’s Free Speech Clause prevents the government from compelling and coercing private citizens to communicate a message or speak against their will. As the Supreme Court said in Wooley v. Maynard, these protections include “both the right to speak freely and the right to refrain from speaking at all.”
If the Supreme Court held in Wooley that the First Amendment ensured motorists could not be forced to display a license plate with the motto “Live Free or Die,” then Blaine Adamson cannot be forced to produce for a customer a t-shirt which he does not want to display.
As the Kentucky court correctly pointed out:
The Hearing Commissioner in its Order attempted to distinguish Wooley from the case at bar with the explanation that “In this case there was no government mandate that the Respondent (HOO) speak.” (Hearing Commissioner Order at p 14). If this is characterized as a Finding of Fact, it is inaccurate, is not supported by the Record and is clearly erroneous. In fact, HOO and its owners, because they refused to print the GLSO t-shirts that offended their sincerely held religious beliefs, have been punished for the exercise of their Constitutional rights to refrain from being forced to speak. The statement is not a fair or accurate Conclusion of Law either based upon precedent from the United States Supreme Court. HOO and its owners have a Constitutional right to refrain from speaking just as much as they enjoy the Constitutional right to speak freely. Wooley, supra.
The court dismissed the argument that HOO treated homosexual groups any differently from heterosexual groups by pointing out that HOO declined to print 13 orders based on the message — whether it was homosexual or heterosexual — over the course of several years. In all cases, HOO declined to print the message because of religious objections, not because of the sexual orientation of the customers.
Indeed, the facts reveal that “[a]t no time did GLSO representatives Lowe or Shepherd disclose their sexual orientation and no HOO representative inquired of them about that issue.”
Moreover, Adamson has a policy for his business, clearly stated on the website, that:
“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.”
If Adamson employs people regardless of their sexual preferences, and at the same time has explicitly stated he rejected the t-shirts due to their message, how is it even conceivable that he made any decision (hence “discriminated”) on the basis of the sexual orientation of the customer?
The Kentucky court also found that the Supreme Court’s decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston — holding that under the First Amendment a private citizen cannot be required by the government to include a group in a parade and thus convey message the citizen did not desire to convey — required the same result in this case, where a private citizen could not be required by the government to print a shirt conveying a message the citizen did not desire to convey. Importantly, the Hurley Court held that public accommodations laws could not be used to trump the First Amendment rights of private speakers. Likewise, even though HOO is considered a place of public accommodation, its First Amendment rights cannot be trampled on that basis in this case.
The Kentucky court finally found that Kentucky’s Religious Freedom Restoration Act protected HOO’s rights. The statute covered corporations, and HOO and its owners have sincere religious beliefs which have been substantially burdened by the government decision here. Meanwhile, the government never even attempted to show a compelling government interest justifying its action; indeed, there cannot even be a compelling interest in making Adamson print the shirts when “[s]everal other printing companies later offered to print the t-shirts for GLSO for free or at a substantially reduced price,” and “HOO even offered to contact other printing companies to get the work done at the same price as quoted by HOO.”
Hopefully other courts facing issues regarding how constitutional rights intersect with nondiscrimination claims will look to this opinion as a model for how the First Amendment applies to these situations. We don’t give up individual liberty and the free expression of our beliefs just because we exercise those beliefs and seek to make a living. We must ensure that this continues to be the case.