Suppose you operate a T-shirt printing shop and a customer requests a shirt with a Bible verse. When you ask which verse, the customer answers: “Leviticus 18:22: Homosexuality is a detestable sin.”
If you politely decline, are you guilty of religious discrimination?
The case is hypothetical but similar to two real-life cases: In one, a man asked a Denver baker to make a Bible-shaped cake with that paraphrased verse. In the other, an LGBTQ organization asked a Lexington, Kentucky print shop to make a rainbow-design T-shirt with the words “Lexington Pride.” Both declined, although the baker was willing to sell a Bible-shaped cake and include an icing bag so that the customer could write the verse himself.
Last week, the Kentucky Court of Appeals ruled in favor of the Lexington print shop, holding that they were not legally guilty of sexual orientation discrimination. The court was correct for the same reason the Colorado Civil Rights Commission was correct when it ruled that the Denver baker was not guilty of religious discrimination.
Hands On Originals is a Lexington-based shop that prints custom T-shirts, mugs, pens, and other promotional items. Per its mission statement, it serves people of “all genders, races, religions, [and] sexual preferences” but reserves the right “to refuse any order that would endorse positions that conflict with the convictions of the ownership.” The shop has invoked this prerogative before, including refusing to print “depictions of Jesus dressed as a pirate or selling fried chicken.”
In March 2012, a representative of Lexington’s Gay and Lesbian Services Organization (GLSO) called the shop seeking a T-shirt for the local LGBTQ Pride Festival. The owner explained that because of his religious beliefs, he could not provide the shirt. So the GLSO filed a complaint.
Unlike most of Kentucky, Lexington prohibits sexual orientation and gender identity discrimination in public accommodations. The Kentucky Court of Appeals ruled that the shop’s refusal did not violate this prohibition.
Why not? One possible answer is heard frequently from bakers, florists, and other business owners who do not want to serve same-sex weddings: They claim that they object not to the customers’ sexual orientation, but to their conduct. More specifically, they don’t want to participate, even remotely, in the act of their wedding. If gay and lesbian customers wanted to buy a birthday cake, these business owners insist, they’d still serve them (well, usually)—whereas if two heterosexual men or women tried to buy a wedding cake, they’d refuse. So, they say, they’re not engaging in sexual orientation discrimination.
This argument is bogus in the wedding context. Fortunately, the court agreed, writing that a refusal to serve someone because the shopkeeper “disapproves of homosexual intercourse or same-sex marriage would be the legal equivalent of sexual orientation discrimination.” It cites the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which refused to sell a cake for a same-sex wedding and was found guilty of violating Colorado’s Anti-Discrimination Act.
The Hands On Originals case is different. It is less like the Masterpiece Cakeshop case and more like the Leviticus-cake case. For three reasons:
The first is the distance between the protected status and the conduct. As the court notes, it is illegal to discriminate against someone for being Jewish; it would be equally illegal to discriminate against someone for wearing a yarmulke, because that is “behavior exclusively or predominantly engaged in by members of the protected class.” Same-sex weddings are “exclusively or predominantly engaged in” by gays, lesbians, and bisexuals; to discriminate against such weddings is effectively to discriminate against such people.
By contrast, the message of “Lexington Pride” is supported by people of various sexual orientations and gender identities; in fact, the GLSO president who brought the lawsuit is a cisgender heterosexual man.
Second, and even more decisively, Hands On Originals was not refusing to sell the very same items to LGBTQ individuals or same-sex couples that it sells to other customers; it was refusing to sell a particular design. Like a vegan bakery that won’t provide real buttercream cakes, or a kosher bakery that won’t sell a bacon-topped cake, it offers a limited menu.
One might object that Masterpiece Cakeshop is similar: “Same-sex wedding cakes” are simply not something they sell. But wedding cakes are not differentiated that way; a “gay wedding cake” is not a thing. Same-sex wedding cakes are generally chosen from the same catalogs as “straight” wedding cakes, with the same options for designs, frosting, fillings and so forth. It might be different if Masterpiece had said “We won’t provide a cake with two brides or two grooms on top; we don’t sell those to anyone.” But what they said, in fact, was that they wouldn’t sell any cakes for same-sex weddings. That’s sexual orientation discrimination.
Third and finally, the print shop case, like the Leviticus-cake case, implicates the owners’ free speech more than typical wedding cases do.
It is notoriously difficult to define what constitutes “expressive activity” for legal purposes. After all, virtually any commercial activity could be read to express some message (e.g. the message that such commerce is legitimate). Nevertheless, the law must draw lines. As I argue in my new book, Debating Religious Liberty and Discrimination, customization is one relevant factor in determining expressive activity; written text is another.
Like the baker in the Leviticus-cake case, the print shop owners are not merely being asked to provide something that they normally sell (T-shirts; cakes), but also to write a message that they reject. We should defend their right to refuse on free-speech grounds, even while we support anti-discrimination laws as applied to cases like Masterpiece Cakeshop.
I grant that this position has some uncomfortable implications. It entails that it should be illegal to refuse to sell cakes to Jews, but not to refuse to sell ones that read “Mazel Tov on David’s Bar Mitzvah!”; illegal to refuse to sell shirts to blacks, but not “Black Lives Matter” designs; illegal to refuse to sell wedding cakes to same-sex couples, but not to refuse to write “Congratulations Edie and Thea.”
Nevertheless, the legal boundaries that produce such implications are the very same ones that protect the baker who declines to write “Homosexuality is a detestable sin”; the print shop owner who declines to make “White Pride” T-shirts; the billboard designer who declines to erect an “Abortion is murder” display, and so on. Free speech includes the freedom to express wrong and even morally repugnant beliefs; it also includes the freedom for the rest of us not to assist with such expression.
Hands On Originals is doubtless celebrating this decision. They might even try to order a cake with the words “Natural Marriage Advocates Won!” You shouldn’t have to provide it for them.