For example, a shopkeeper’s refusal to serve a Jewish man, not because the man is Jewish, but because the shopkeeper disapproves of the fact that the man is wearing a yarmulke, would be the legal equivalent of religious discrimination. A shopkeeper’s refusal to serve a homosexual, not because the person is homosexual, but because the shopkeeper disapproves of homosexual intercourse or same-sex marriage, would be the legal equivalent of sexual orientation discrimination.By contrast, however, it is not the aim of public accommodation laws, nor the First Amendment, to treat speech as this type of activity or conduct. This is so for two reasons. First, speech cannot be considered an activity or conduct that is engaged in exclusively or predominantly by a particular class of people. … Second, the right of free speech does not guarantee to any person the right to use someone else’s property, even property owned by the government and dedicated to other purposes, as a stage to express ideas. …Nothing of record demonstrates HOO, through Adamson, refused any individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations it offered to everyone else because the individual in question had a specific sexual orientation or gender identity. … Don Lowe, the only representative of GLSO with whom [Adamson] spoke regarding the t-shirts[,] … testified he never told Adamson anything regarding his sexual orientation or gender identity. The GLSO itself also has no sexual orientation or gender identity: it is a gender-neutral organization that functions as a support network and advocate for individuals who identify as gay, lesbian, bisexual, or transgendered….[GLSO’s] membership and its Pride Festival welcome people of all sexual orientations. It functions as a support network and advocate for others (i.e., gay, lesbian, bisexual, or transgendered individuals). And, the t-shirts the GLSO sought to order from HOO are an example of its support and advocacy of others…. [T]he symbolism of [the proposed t-shirt] design, the festival the design promoted, and the GLSO’s desire to sell these shirts to everyone clearly imparted a message: Some people are gay, lesbian, bisexual, and transgendered; and people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals.The act of wearing a yarmulke is conduct engaged in exclusively or predominantly by persons who practice Judaism. The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. [The court had earlier given these as examples of activities that “may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed.” -EV] But anyone — regardless of religion, sexual orientation, race, gender, age, or corporate status — may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals.Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO. For this reason, conveying a message in support of a cause or belief (by, for example, producing or wearing a t-shirt bearing a message supporting equality) cannot be deemed conduct that is so closely correlated with a protected status that it is engaged in exclusively or predominantly by persons who have that particular protected status. It is a point of view and form of speech that could belong to any person, regardless of classification. …Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance.
HOO’s conduct was discriminatory against GLSO and its members based upon sexual orientation or gender identity…. GLSO serves gays and lesbians and promotes an “alternative lifestyle” that is contrary to some religious beliefs. That lifestyle is based upon sexual orientation and gender identity that the United States Supreme Court has recently recognized. In Obergefell v. Hodges, the Supreme Court held that the fundamental right to marry [including in a same-sex marriage] is guaranteed to same sex couples under the Due Process Clause and the Equal Protection Clause. … Regardless of personal or religious beliefs, this is the law that courts are duty bound to follow.The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation.This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect. The facts in this case clearly establish that HOO’s conduct, the refusal to print the t-shirts, was based upon gays and lesbians promoting a gay pride festival in Lexington, which violated the Fairness Ordinance.Finally, it is important to note that the speech that HOO sought to censor was not obscene or defamatory. There was nothing obnoxious, inflammatory, false, or even pornographic that GLSO wanted to place on their t-shirts which would justify restricting their speech under the First Amendment. … Likewise, there is nothing in the message that illustrates or establishes that HOO either promotes or endorses the Festival. …While free speech is not without its limitations, nothing in the promotion of the Festival by GLSO came close to being outside the protections of the First Amendment. The Fairness Ordinance in this case is simply an extension of civil rights protections afforded to all citizens under federal, state and local laws. These civil rights protections serve the societal purpose of eradicating barriers to the equal treatment of all citizens in the commercial marketplace.
There is little doubt LFUCG has a compelling interest in preventing local businesses from discriminating against individuals based on their sexual orientation. LFUCG must be able to market itself as a place where all people can acquire the goods and services they need.Accordingly, by the plain text of [the state RFRA], the central issue here is whether the fairness ordinance is the least-restrictive way for LFUCG to prevent local business from discriminating against members of the gay community without imposing a substantial burden on the exercise of religion. … [I]nstead of providing an owner of a closely-held business, or the like, with an alternative means of accommodating a patron who wishes to promote a cause contrary to the owner’s faith [footnote: Here, the owners of HOO offered to find a printer who would do the work at the same price quoted initially to accommodate the needs of the customer], the fairness ordinance forces the owner to either join in the requested violation of a sincerely held religious belief, or face a penalty, i.e., support the furtherance of the offending cause or take a class on how to support it. Such coercion violates [the state RFRA]. …
[As to the religious exemption claim,] the holding in Hobby Lobby was limited solely to the issue of whether a closely held corporation could raise a religious liberty defense to the insurance contraceptive coverage mandate of the Affordable Care Act. And, I do not believe [the Kentucky RFRA] is implicated in this case, as the statute does not prohibit a governmental entity from enforcing laws or ordinances that prohibit discrimination and protect a citizen’s fundamental rights. Moreover, the United States Supreme Court has held that religious beliefs or conduct may be burdened or limited where the compelling government interest is to eradicate discrimination. See Bob Jones Univ. v. U.S. (1983) (holding that the government has an overriding interest in eradicating racial discrimination in education).
The government may not require Americans to help distribute speech of which they disapprove. The Supreme Court so held in Wooley v. Maynard, 430 U.S. 705 (1977), when it upheld drivers’ First Amendment right not to display on their license plates a message with which they disagree. The logic of Wooley applies equally to printers’ right not to print such messages.The government’s interest in preventing discrimination cannot justify restricting Hands On Originals’ First Amendment rights. Hands On Originals is not discriminating based on the sexual orientation of any customer. Rather, its owners are choosing which messages they print. In this respect, the owners’ actions are similar to the actions of the parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), who also chose not to spread a particular message through their parade.In Hurley, the Supreme Court noted that the state, in trying to force the organizers to include a gay pride group in a parade, was applying its antidiscrimination law “in a peculiar way”: to mandate the inclusion of a message, not equal treatment for individuals. And the Court held that this application of antidiscrimination law violated the First Amendment. The Commission’s attempt to apply such law to Hands On Originals’ choice about which materials to print likewise violates the First Amendment.The Supreme Court has held that large organizations, such as cable operators or universities, might be required to convey messages on behalf of other organizations with which they disagree. But Hands On Originals is a small owner-operated company, in which the owners are necessarily closely connected to the speech that Hands On Originals produces. In this respect, the owners of Hands On Originals are much closer to the Maynards in Wooley v. Maynard, whose “individual freedom of mind,” secured the right not to help distribute speech of which they disapproved.