Freedom of Conscience Wins a Round

By David French, CP Guest Contributor Monday, April 27, 2015

David French, a Harvard educated attorney and is an editor for National Review. He lives in Middle Tennessee with his wife, best-selling author Nancy French and their children and pets.

Amidst the unrelenting bad news regarding freedom of conscience (see, for example, this report of an Oregon hearing officer imposing a ruinous $135,000 judgment on a Christian baker who refused to bake a cake for a gay wedding), it's refreshing to read a bit of constitutional sanity. My good friends at the Alliance Defending Freedom (full disclosure: I worked for ADF for a number of years and continue to speak at ADF events) just won a key decision in a Lexington, Kentucky trial court on behalf of "Hands On Originals," a custom printing company. Hands On Originals (HOO) refused to print t-shirts for a 2012 gay pride parade, and the organizers filed a complaint before the local human rights commission. HOO was one of three t-shirt companies the gay pride parade organizers contacted, and when HOO refused the order, the group was easily able to find an alternative vendor. The commission, however, ruled against the company, and the company appealed to the circuit court.

HOO is owned and operated by Christians who attempt to operate "consistently with the teachings of the Bible." In fact, the owners put in place a clear policy against printing messages that conflicted with their beliefs. The policy stated:

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 would conflict with the convictions of the ownership.

In its order upholding HOO's right not to speak — it's right not to assist in spreading a message endorsing an unbiblical view of sexuality — the court relied on the Supreme Court's clear statement in Wooley v. Maynard:

We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.

In response, the human rights commission argued that it wasn't trying to infringe violate the Wooley principle, but merely trying to mandate the HOO "treat everyone the same." Yet, as the court noted, HOO did, in fact, treat "homosexual and heterosexual groups the same:"

In 2010, 2011, and 2012, HOO declined to print at least thirteen (13) orders for message-based reasons. Those print orders that were refused by HOO included shirts promoting a strip club, pens promoting a sexually explicit video, and shirts containing a violence-related message. There is further evidence in the [Human Rights] Commission record that it is standard practice within the promotional printing industry to decline to print materials containing messages that the owners do not want to support. Nonetheless the Commission punished HOO for declining to print messages advocating sexual activity to which HOO and its owners strongly oppose on sincerely held religious grounds.

This gets to the heart of the matter. It's not that various state agencies are truly trying to end discrimination — indeed, each and every besieged florist, baker, or pizza maker would happily serve gay or straight customers — they're attempting to conscript private businesses into celebrating and honoring specific, religiously-significant actions, like same-sex marriage or other forms sexual immorality. Expressive businesses like t-shirt companies have long refused work from straight citizens who seek to enlist them in spreading morally-objectionable messages, yet there is simply no wave of "human rights" commission fines in response to other message-based denials of service. I'm reminded of the double standard that has long existed on college campuses, where Christian groups have long disciplined straight ministry leaders who have sex outside of marriage, and no one cared. Indeed, they would have been mocked as hypocrites for keeping leaders who were, for example, living with boyfriends/girlfriends before marriage. But heaven help the campus Christian group that asks a man not to have sex with a man.

The court's holding represents pure constitutional common sense:

This Court does not fault the Commission in its interest in insuring citizens have equal access to services, but that is not what this case is all about. There is no evidence in this record that HOO or its owners refused to print t-shirts in question based on the sexual orientation of GLSO [the gay pride organization] or its members or its representatives that contacted HOO. Rather, it is clear beyond dispute that HOO and its owners declined to print the t-shirts in question because of the MESSAGE advocating sexual activity outside of a marriage between one man and one woman. The well established Constitutional rights of HOO and its owners on this issue is well settled and requires action by this Court. [Emphasis in original.]

I sincerely doubt this is the last word in the case. I'd fully expect the human rights commission to appeal and for this case to be ultimately settled in the Kentucky courts of appeal or perhaps even in the United States Supreme Court. But, for now, this ruling demonstrates that it's not futile to fight, and in fact some judges can see through the overheated cultural rhetoric to uphold the Constitution and protect freedom of conscience.

This column was originally published in National Review.