Lexington-Fayette Urban Cnty. Human Rights Comm'n v. Hands on Originals, 2017-SC-000278-DG

• Decision Date: 31 October 2019
• Docket Number: 2017-SC-000278-DG
• Citation: 592 S.W.3d 291
• Parties: LEXINGTON-FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION, Appellant v. HANDS ON ORIGINALS, Appellee
• Court: United States State Supreme Court — District of Kentucky

592 S.W.3d 291

LEXINGTON-FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION, Appellant

v.HANDS ON ORIGINALS, Appellee

2017-SC-000278-DG

Supreme Court of Kentucky.

OCTOBER 31, 2019

COUNSEL FOR APPELLANT: Edward E. Dove.

COUNSEL FOR APPELLEE: Bryan Howard Beauman, Lexington, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Kenneth J. Connelly, Jeana Hallock, James A. Campbell, Kristen K. Waggoner, ALLIANCE DEFENDING FREEDOM.

COUNSEL FOR SUTHERLAND INSTITUTE AMICUS CURIAE: Edward Leo Metzger III, Covington, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC.

COUNSEL FOR SHERIF GIRGIS AMICUS CURIAE: Matthew C. Hess, BELL, HESS & VAN ZANT, PLC.

COUNSEL FOR AMERICAN CENTER FOR LAW AND JUSTICE AMICUS CURIAE: Thomas Patrick Monaghan, New Hope, AMERICAN CENTER FOR LAW & JUSTICE, Geoffrey R. Surtees, New Hope, CENTER FOR LAW & JUSTICE FOR CATHOLICS UNITED FOR LIFE.

COUNSEL FOR CENTER FOR RELIGIOUS EXPRESSION AMICUS CURIAE: Stanton L. Cave, Lexington, THE LAW OFFICE OF STAN CAVE.

COUNSEL FOR CATHOLICVOTE.ORG AMICUS CURIAE: Brian Keith Privett, BRIAN PRIVETT LAW OFFICES, Scott W. Gaylord, PROFESSOR OF LAW AT ELON UNIVERSITY SCHOOL OF LAW.

COUNSEL FOR LAW AND ECONOMICS SCHOLARS AMICUS CURIAE: Anthony Charles Donahue, Somerset, DONAHUE LAW GROUP, P.S.C.

COUNSEL FOR ETHICS AND RELIGIOUS LIBERTY COMMISSION AMICUS CURIAE: Aaron John Silletto, Prospect, GOLDBERG SIMPSON, LLC, John J. Bursch, BURSCH LAW PLLC.

COUNSEL FOR JEWS AND RELIGIOUS LIBERTY AMICUS CURIAE: Aaron John Silletto, Prospect, GOLDBERG SIMPSON, LLC, John J. Bursch, BURSCH LAW PLLC.

COUNSEL FOR KENTUCKY BAPTIST CONVENTION AMICUS CURIAE: Aaron John Silletto, Prospect, GOLDBERG SIMPSON, LLC, John J. Bursch, BURSCH LAW PLLC.

COUNSEL FOR CATO INSTITUTE AMICUS CURIAE: Christopher L. Thacker, BILLINGS LAW FIRM, PLLC, Eugene Volokh, SCOTT & CYAN BANISTER, UCLA SCHOOL OF LAW.

COUNSEL FOR THE BECKET FUND FOR RELIGIOUS LIBERTY AMICUS CURIAE: Richard Garrett Griffith, Elizabeth S. Muyskens, STOLL, KEENON & OGDEN, PLLC, Lexington.

COUNSEL FOR TYNDALE HOUSE PUBLISHERS, INC. AMICUS CURIAE: Wesley Reed Butler, Holly Iaccarino, Lexington, BARNETT BENVENUTI & BUTLER PLLC.

COUNSEL FOR COMMONWEALTH OF KENTUCKY, EX REL. MATTHEW G. BEVIN, GOVERNOR AMICUS CURIAE: Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn, OFFICE OF THE GOVERNOR.

COUNSEL FOR THE STATE OF ARKANSAS, ALABAMA, KANSAS, LOUISIANA, MISSOURI, NEBRASKA, OKLAHOMA, SOUTH CAROLINA, TEXAS, AND WEST VIRGINIA AMICUS CURIAE: John Choate Roach, Lexington, RANSDELL, ROACH & ROYCE PLLC, Dylan L. Jacobs, ASSISTANT SOLICITOR GENERAL OF ARKANSAS.

COUNSEL FOR LEGAL SCHOLARS AMICUS CURIAE: Brian Lee Schuette, Bowling Green, Joshua Hershberger, CRAIN SCHUETTE ATTORNEYS.

COUNSEL FOR AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR ANTI-DEFAMATION LEAGUE AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR BEND THE ARC AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR A JEWISH PARTNERSHIP FOR JUSTICE AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR CENTRAL CONFERENCE OF AMERICAN RABBIS AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR INTERFAITH ALLIANCE FOUNDATION AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUSEL FOR LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR PEOPLE FOR THE AMERICAN WAY FOUNDATION AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR UNION FOR REFORM JUDAISM AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR WOMEN OF REFORM JUDAISM AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

COUNSEL FOR NATIONAL COUNCIL OF JEWISH WOMEN, INC. AMICUS CURIAE: David B. Tachau, Louisville, TACHAU MEEK PLC, Robert D. Kamenshine, Richard B. Katskee, Kelly M. Percival.

OPINION OF THE COURT BY JUSTICE VANMETER

The ability of federal, state and local governments to protect individuals from discrimination by places of public accommodation is beyond question. While very important issues have been presented to the Court in this case, this matter must be dismissed because the Gay and Lesbian Services Organization ("GLSO"), the original party to bring this action before the Lexington Fayette Urban County Human Rights Commission ("Commission"), lacked statutory standing to assert a claim against Hands On Originals ("Hands On") under the Lexington Fayette Urban County Government ("LFUCG") ordinance, Section 2-33, and KRS ¹ 344.120.

I. Factual and Procedural Background.

Hands On, a closely-held corporation with three owners, is a small business located in Lexington which prints promotional materials such as shirts, hats, bags, blankets, cups, bottles and mugs for its customers. Hands On employs graphic design artists to implement its customers' expressive purposes. Blaine Adamson, one of Hands On’s three shareholders, is its managing owner. He, along with the other two Hands On shareholders/owners, are Christians who operate Hands On consistently with their understanding of the Bible’s teachings. The Commission found that Hands On’s religious beliefs are sincerely held. Hands On’s stated policy on its website provides:

Right of Refusal: 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.

Hands On owners believe that sexual relations should occur only within a marriage between a man and a woman. To be clear, while they disapprove of relations between members of the same sex, they also disapprove of nonmarital sexual relations between a man and a woman.

GLSO is a Kentucky not-for-profit corporation,² based in Lexington, which represents and advocates for the lesbian, gay, bisexual, transgender, queer, questioning, intersex and allied community ("LGBTQ+"). GLSO holds an annual event called the "Lexington Pride Festival" that supports this community and its message. As noted by the circuit court, "[t]hrough its various programs, publications and other media, GLSO speaks in favor of sexual relationships and sexual activities outside of a marriage between a man and a woman. GLSO seeks to change attitudes concerning this issue and similar issues through its programs and publications." GLSO members and supporters come from all walks of life and all sexual orientations.

In February 2012, a GLSO representative contacted Hands On about printing t-shirts for the upcoming Pride Festival³ and submitted a t-shirt design. A Hands On employee reviewed it and quoted GLSO a price, without presenting the design to Adamson. The proposed t-shirt design bore the name "Lexington Pride Festival" with rainbow-colored circles around an enlarged number "5" in recognition of the fifth year of the festival.

The following month, a different GLSO representative contacted Hands On about the price quote and spoke with Adamson, who had not yet viewed the t-shirt design. Adamson inquired into what the Pride Festival was and learned that the t-shirts would be in support of the LGBTQ+ community. Adamson advised the GLSO representative that because of his personal religious beliefs, Hands On could not print a t-shirt promoting the Pride Festival and its message advocating pride in being LGBTQ+. Adamson offered to refer GLSO to another printing shop. At no point did any Hands On representative inquire into the GLSO representatives' sexual orientation, and the GLSO representatives did not disclose such information. Ultimately, GLSO procured the t-shirts from a Cincinnati business free of charge.

Thereafter, Aaron Baker, GLSO’s President, filed a Complaint on GLSO’s behalf with the Commission alleging that Hands On 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. Importantly, the record is clear that no individual claimed Hands On had discriminated. Following an investigation by the Commission, a determination of Probable Cause and Charge of Discrimination was filed declaring that Hands On had violated LFUCG’s public accommodation ordinance, Local Ordinance 201-99, Section 2-33, which prohibits a public accommodation from discriminating against individuals based on their sexual orientation or gender identity.

The parties filed cross-motions for summary judgment. Upon finding a violation of Section 2-33, 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 within the following year. The Hearing Officer’s Order was subsequently adopted by the Commission.

Hands On appealed the Commission’s decision to the Fayette Circuit Court. The circuit court reversed the Commission’s opinion and order and remanded the matter with instruction to dismiss the charges against Hands On. On further appeal by the Commission and GLSO, the Court of Appeals affirmed the circuit court in a split 1-1-1...