A good example of why they can is this: what if someone came in asking to print a shirt advocating the rape of 8 year old girls? Would a court rule the shop MUST print it?
The dispute represents the latest court fight testing the limits of antidiscrimination protections for gays and lesbians following the U.S. Supreme Court’s 2015 landmark ruling legalizing gay marriage nationwide.
The cases have led to a number of state court rulings against Christian-owned businesses that refused to bake cakes, design floral arrangements or take portrait photographs for same-sex weddings.
The ruling by the Kentucky Court of Appeals favored the business owner. A crucial difference in this case was the expressive nature of the service denied: literally words on a shirt.
In a split vote, a three-judge panel concluded that the store, Hands on Originals, couldn’t be forced to print a message with which the owner disagreed.
The dispute started in 2012 when Gay and Lesbian Services Organization in Kentucky asked Hands on Originals to make T-shirts with the name and logo of a pride festival.
Blaine Adamson, owner of Hands on Originals, said he refused to print the shirts because it violated his business’s policy of not printing messages that endorse positions in conflict with his convictions.
Mr. Adamson offered examples of other orders he refused, such as shirts featuring the word “bitches” or a depiction of Jesus dressed as a pirate.
The gay-rights group filed a complaint with the Lexington Fayette Urban County Human Rights Commission, which in 2014 ordered Mr. Adamson to make the shirts.
Friday’s decision affirmed an earlier ruling from a lower court. The commission, which brought the appeal, said the store was in violation of a local “fairness” ordinance banning discrimination on the basis of sexual orientation in places of public accommodation.
The Kentucky Court of Appeals, one level below the state’s Supreme Court, disagreed, ruling that the conduct by the business wasn’t discrimination, rather a decision not to promote certain speech.
One judge on the panel dissented, saying he thought Mr. Adamson’s shop had engaged in “deliberate and intentional discriminatory conduct.”
In other lawsuits against religious business owners, courts have rejected First Amendment defenses.
Free speech arguments failed to persuade New Mexico’s highest court, which ruled in 2013 that the owners of an Albuquerque wedding photography company couldn’t refuse to photograph a same-sex ceremony.
Likewise, Washington state’s highest court this year ruled against a florist who wouldn’t prepare floral arrangements for a gay couple’s wedding.
In 2015, a Colorado appeals court ruled against a Christian baker who refused to design a cake for a gay wedding. The owner, Masterpiece Cakeshop, has asked the U.S. Supreme Court to hear the case. The high court hasn’t decided whether to hear it.
Business owners in those cases had argued too that providing their services expressed a message.
The courts are making a distinction “between material that is seen as fundamentally expressive, like a message-bearing T-shirt would be, and material not seen as expressive, such as a cake,” said law professor Eugene Volokh, a First Amendment expert at the University of California, Los Angeles.
Attorneys for Mr. Adamson said the ruling was a victory for free speech.
“Today’s decision is a victory for printers and other creative professionals who serve all people but cannot promote all messages,” said Jim Campbell, senior counsel at the Alliance Defending Freedom, said in a statement. The group represented Mr. Adamson in the litigation.
Raymond Sexton, executive director of the county commission, said he disagreed with Friday’s decision and is reviewing legal options.
“The sole reason the service was denied was based on the fact they are a group that advocates on behalf of the gay and lesbian community,” he said.