#KY means Kentucky (Fried Chicken) here
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KENTUCKY
2020 Jun 6 (Sat) – This is such a lovely campground! We walked around with Bonnie this morning. In the back of the area, there is a beautiful pavilion that can be rented for special occasions. There are many cabins of all different sizes around the pavilion that overlooks a lake. Very picturesque.
We drove to Louisville to get pet food. We also stopped at Kroger for a few groceries then bought fuel in anticipation of tomorrow’s trip.
The little dog is still wandering around the campground barking at some phantom. I think it’s calling to whoever abandoned it. I feel so sorry for the little girl.
2020 Jun 5 (Fri) – We left Fort Campbell at 8:30 a.m. Our drive turned out to follow back country roads and at times, it got a little hairy with our big rig. But we arrived at Fort Knox Camp Carlson without incident. It was 3-1/2 hours and not one stop.
The office door at the campground was closed and locked with signs warning about the coronavirus. A woman opened the door and asked us what we wanted. When I said we had a reservation, she seemed surprised at first then remembered us. She left us standing outside with our face masks on to get the paperwork. She came back out, had me sign registration papers, sold us a bundle of wood, and went back into her cocoon. She told us that the campground is closed and you can only get in with a reservation. Doesn’t mean they are open?
The campground is very nice with lots of grass and trees dotting the area. There are only six other campers in the facility and they are all spread out. Our campsite is pull-through with gravel surface. We have full hook ups and plenty of room around our site. Unfortunately, signal strength is very poor. We can’t get TV over the air very well only two of three satellites for the DISH. I can’t get my cell phone to work either.
There is a little dog in the campground that is unclaimed. It stands in the middle of the area and barks as though calling for someone. Then it paces around the campground. I went out to try to get hold of it but it wouldn’t come close enough. While I was giving her food and water, another camper came over and told me the dog’s story. It’s been here for several months. The two camp hosts feed the dog and try to get hold of it but it is very suspicious of touch. It will not come close enough for anyone to grab it. Animal control has tried to catch it, too, but she’s too wily for them. I hope someone can catch her before the campground reopens and people start complaining about her.
2020 Jun 4 (Thu) – It was a long day today. We started by bringing the tire to The Wheel Shop where they specialize in tires and rims. They had to send the tire off property to have the rim repaired. We said we’d be back about 3 p.m.
Having to kill time, we drove to Fort Defiance and Interpretative Center. The fort was originally named Fort Sevier. When union forces captured it in the 1862, it was renamed Fort Bruce. After the civil war, the name was changed to Fort Defiance. We walked around the small museum and watched a film about the war’s effect on Clarksville. It was small but very informative.
After walking the trail around the breastworks, we drove to Fort Donelson National Battlefield on the other side of town, down by the Cumberland River. Two battlesites were divided by the main highway. The visitor center was closed so no map of the battlefield was available. We drove along the roadway through the park, stopping to read storyboards and admire the canons nestled among the breastworks. Across the street were more of the battlefield, canons, and breastworks. We then drove down the road to the Fort Donelson National Cemetery. It is a small cemetery but very well kept, as are all the national cemeteries. There were over 600 interments from the Civil War; more than 100 soldiers were unknown. They just put up a square plug with a number on it when they don’t know the man’s name.
We stopped at John’s Taco for lunch and actually ate inside! All the tables had little signs on them saying they had been cleaned and sanitized. The food was OK but nothing special.
Then we drove back to the Wheel Shop to check on the status of the rim repair. Although everyone behind the counter appeared to be very busy, it looked like a lot of wasted energy. In addition, they were slow as molasses in the winter in getting anything done. We sat in the waiting room for over an hour. I started to get a headache from wearing the mask that long so I went outside to get some fresh air. Paul followed about half an hour later. We sat until 5:30 at which time I went in to ask about the status of the repair. The tech told me the tire had to go out for repair yet (they still hadn’t done it!!!) and it would be at least another hour or so. Although they close at 5 p.m., he said they’d be there for hours because they had a lot of work to do.
We returned to the campground, fed the animals, and walked Bonnie. Fortunately, Bonnie had been able to hold her bladder and there was no mess in the RV. After the animals were tended to, we drove back to the Wheel Shop, stopping at Church’s Chicken to get dinner. We got it at the take out window and ate it in the parking lot. When we got to the shop, the tire was done. Paul had asked him to put 90 pounds in and the tech said he did. When Paul got the tire outside and checked it, there was only 70 pounds in the tire. He took it back in and had them put more air in it. It was a frustrating day working with those folks.
2020 Jun 3 (Wed) – We left Tishomingo, MS at 9:40 and drove to Fort Campbell, KY. It was a long drive; 4-1/2 hours. The campground, although part of the Fort Campbell base, is outside the gate and actually in Clarksville, TN. It sits right on the border so I’m calling it Kentucky.
The campground has two parts. The first part – Eagle’s Nest – is older and the sites are small. They are tucked in to the trees and all the spaces are back-in. We couldn’t fit in there so we came to the second part – Fletcher’s Fork. All the sites here are pull-through and larger. We fit into our site just fine. We have full hook ups and there is a laundry room if we need it (which we don’t).
After we paid at the office (which I had to enter with a mask on), we drove into town to drop our tire off for repair. It went from 102 pounds to 75 by the time we arrived. The slow leak is no longer slow and it was not the valve. Turned out to be a cracked wheel hub. We’ll have to go seeking one somewhere tomorrow. Ugh. I’m not so sure that’s going to be very easy.
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Kentucky court rejects government attempt to punish printer for refusing to print ‘Lexington [Gay] Pride Festival’ T-shirt
(Image used with permission.)
Blaine Adamson, the co-owner and manager of a printing business in Kentucky, has religious objections to printing various types of messages, such as those that promote “adult entertainment products and establishments,” messages containing demeaning terms such as “b—-es” and depictions of Jesus that he views as disrespectful (examples included “Jesus dressed as a pirate or selling fried chicken”).
Because of this Adamson refused to print, for the local Gay and Lesbian Services Organization, T-shirts that promoted the fifth annual Lexington Gay Pride Festival. (The GLSO wanted T-shirts to bear the words “Lexington Pride Festival 2012,” the number “5” and a series of rainbow-colored circles around the “5.”) The Lexington Fayette Urban County Human Rights Commission ruled that this violated the Lexington County law banning sexual orientation in places of public accommodation.
In Friday’s Lexington Fayette Urban County Human Rights Comm’n v. Hands On Originals, Inc. (Ky. Ct. App. May 12, 2017), a three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the “compelled speech” doctrine, not to be forced to print messages of which he disapproved).
1. First, the panel split on whether the refusal to print a gay pride message was sexual orientation discrimination against particular individuals. (All three judges agreed that the T-shirt store was, under the ordinance and under Kentucky law, a place of public accommodation.) The majority said no:
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.
The dissenting judge, Judge Jeff S. Taylor, disagreed:
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.
2. Judge James H. Lambert appears to have joined the majority opinion on the question whether HOO’s conduct was discriminatory (since he labeled that opinion “the majority opinion,” which it could be only with his vote). But he also reasoned that the ordinance was preempted by the Kentucky Religious Freedom Restoration Statute, which is modeled on the federal Religious Freedom Restoration Act applied in Hobby Lobby and other recent cases. He concluded that the ordinance, as interpreted by the commission, burdened the HOO owners’ religious practice, and thus the owners were entitled to an exemption unless denying the exemption was the least restrictive means of serving a compelling interests — a showing the government could not make:
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]. …
Taylor disagreed:
[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).
3. Here’s my view, which was expressed in this amicus brief that my student Ashley Phillips and I filed on behalf of the Cato Institute: Whether or not the ordinance bars discrimination against messages supporting pro-gay-rights events, a printer has a First Amendment right to refuse to print messages of which he disapproves. As the amicus brief argued,
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.
Moreover, the dissenting judge’s argument about the free speech protections offered to the Lexington Pride Festival strikes me as entirely beside the point: The T-shirt would certainly have been constitutionally protected against government suppression, just as the motto “Live Free or Die” would be so protected. But people also have a First Amendment right not to display the message (as in Wooley) or to print the message.
Likewise, the dissenting judge’s argument that requiring HOO to print the T-shirt wouldn’t suggest “that HOO … endorses the Festival” is also beside the point. That was precisely the argument the dissenting justices made in Wooley (quoting the New Hampshire Supreme Court): “The defendants’ … [having] to display plates bearing the State motto carries no implication … that they endorse that motto or profess to adopt it as matter of belief.” But the Wooley majority was unswayed by that: The Maynards, the court held, had a First Amendment right to “refuse to foster … an idea they find morally objectionable,” and thus could not be forced to display the motto even in a context where no one would think that they were endorsing the motto. The same is true of people who don’t want to foster an idea by participating in the creation (rather than display) of messages expressing that idea.
You can read the whole brief here, but let me close with these hypotheticals:
Say members of the Westboro Baptist Church come to a printer — a printer who supports gay rights or who is gay himself or who just thinks the Westboro belief system is appalling — and demand that he print a “Westboro Baptist Church Pride” T-shirt.
Or say that an anti-illegal-immigrant group comes to a printer in Seattle and demands that he print a “Build a Wall / Deport Them All” T-shirt. (Seattle bans public accommodation discrimination based not just on race, religion, sexual orientation and the like but also “political ideology,” defined as “any idea or belief … relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group.”)
Should the government be able to punish the printer for refusing, on the theory that this constituted impermissible religious or political ideology discrimination in public accommodations?
Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/14/kentucky-court-rejects-government-attempt-to-punish-printer-for-refusing-to-print-lexington-gay-pride-festival-t-shirt/
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Kentucky court rejects government attempt to punish printer for refusing to print ‘Lexington [Gay] Pride Festival’ T-shirt
(Image used with permission.)
Blaine Adamson, the co-owner and manager of a printing business in Kentucky, has religious objections to printing various types of messages, such as those that promote “adult entertainment products and establishments,” messages containing demeaning terms such as “b—-es” and depictions of Jesus that he views as disrespectful (examples included “Jesus dressed as a pirate or selling fried chicken”).
Because of this Adamson refused to print, for the local Gay and Lesbian Services Organization, T-shirts that promoted the fifth annual Lexington Gay Pride Festival. (The GLSO wanted T-shirts to bear the words “Lexington Pride Festival 2012,” the number “5” and a series of rainbow-colored circles around the “5.”) The Lexington Fayette Urban County Human Rights Commission ruled that this violated the Lexington County law banning sexual orientation in places of public accommodation.
In Friday’s Lexington Fayette Urban County Human Rights Comm’n v. Hands On Originals, Inc. (Ky. Ct. App. May 12, 2017), a three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the “compelled speech” doctrine, not to be forced to print messages of which he disapproved).
1. First, the panel split on whether the refusal to print a gay pride message was sexual orientation discrimination against particular individuals. (All three judges agreed that the T-shirt store was, under the ordinance and under Kentucky law, a place of public accommodation.) The majority said no:
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.
The dissenting judge, Judge Jeff S. Taylor, disagreed:
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.
2. Judge James H. Lambert appears to have joined the majority opinion on the question whether HOO’s conduct was discriminatory (since he labeled that opinion “the majority opinion,” which it could be only with his vote). But he also reasoned that the ordinance was preempted by the Kentucky Religious Freedom Restoration Statute, which is modeled on the federal Religious Freedom Restoration Act applied in Hobby Lobby and other recent cases. He concluded that the ordinance, as interpreted by the commission, burdened the HOO owners’ religious practice, and thus the owners were entitled to an exemption unless denying the exemption was the least restrictive means of serving a compelling interests — a showing the government could not make:
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]. …
Taylor disagreed:
[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).
3. Here’s my view, which was expressed in this amicus brief that my student Ashley Phillips and I filed on behalf of the Cato Institute: Whether or not the ordinance bars discrimination against messages supporting pro-gay-rights events, a printer has a First Amendment right to refuse to print messages of which he disapproves. As the amicus brief argued,
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.
Moreover, the dissenting judge’s argument about the free speech protections offered to the Lexington Pride Festival strikes me as entirely beside the point: The T-shirt would certainly have been constitutionally protected against government suppression, just as the motto “Live Free or Die” would be so protected. But people also have a First Amendment right not to display the message (as in Wooley) or to print the message.
Likewise, the dissenting judge’s argument that requiring HOO to print the T-shirt wouldn’t suggest “that HOO … endorses the Festival” is also beside the point. That was precisely the argument the dissenting justices made in Wooley (quoting the New Hampshire Supreme Court): “The defendants’ … [having] to display plates bearing the State motto carries no implication … that they endorse that motto or profess to adopt it as matter of belief.” But the Wooley majority was unswayed by that: The Maynards, the court held, had a First Amendment right to “refuse to foster … an idea they find morally objectionable,” and thus could not be forced to display the motto even in a context where no one would think that they were endorsing the motto. The same is true of people who don’t want to foster an idea by participating in the creation (rather than display) of messages expressing that idea.
You can read the whole brief here, but let me close with these hypotheticals:
Say members of the Westboro Baptist Church come to a printer — a printer who supports gay rights or who is gay himself or who just thinks the Westboro belief system is appalling — and demand that he print a “Westboro Baptist Church Pride” T-shirt.
Or say that an anti-illegal-immigrant group comes to a printer in Seattle and demands that he print a “Build a Wall / Deport Them All” T-shirt. (Seattle bans public accommodation discrimination based not just on race, religion, sexual orientation and the like but also “political ideology,” defined as “any idea or belief … relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group.”)
Should the government be able to punish the printer for refusing, on the theory that this constituted impermissible religious or political ideology discrimination in public accommodations?
Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/14/kentucky-court-rejects-government-attempt-to-punish-printer-for-refusing-to-print-lexington-gay-pride-festival-t-shirt/
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‘I feel like this is the last shot’: A Kentucky family greets the Trump era
By Monica Hesse, Washington Post, January 24, 2017
They were an American family, at the beginning of a presidential term in which the biggest clarifying lesson was that there were many different kinds of American families trying to share the elbow-space of one country.
There were the ones who hated Donald Trump from the beginning and made it clear. There were the ones who loved him from the beginning and made that clear, too. And then there were lots of ones like the Razmuses, for whom moments of clarity were centered on subjects that were considerably less divisive.
What Suzie Razmus was sure of: how she loved her husband and their three sons. How she was devoted to her faith and her community. How Shane, 13, really needed to eat more breakfast. How that inane “Pen-PineappleApple-Pen” song got stuck in her head every time Henry, 17, sang it. How the low, green mountains surrounding Corbin, Ky., could be breathtaking to newcomers but banal to lifelong residents, which is why, every morning when she drove to the movie theater her family owned and operated, she worked hard not to take the view for granted.
The Razmuses were the kind of middle-class family whose support the new president’s success would live or die on. And one thing Suzie was not always 100 percent sure of was how she felt about him. She’d voted for John Kasich in the primary. But Kasich dropped out, and Marco Rubio--whom she and husband, Greg, had also looked at--dropped out, and Ted Cruz, whom their oldest, Saylor, had grudgingly voted for, dropped out, too. Finally, Greg looked around, acknowledged there were no other options, and decided it was “time to get on the Trump train.”
Suzie, who believed in witnessing history as much as she believed in individual politicians, called up their senator’s office and requested tickets to the inauguration.
Suzie knew that the inauguration would be important. She hoped that it would be inspiring, although she feared--at least a small part of her did--that the man they had decided to bestow their votes upon would careen off-script during his inaugural address, the way he was prone to do, and she would want to close her eyes in embarrassment.
Past the Capitol, on the Mall, speakers were rehearsing for the swearing-in.
“We live in a challenging and tumultuous world,” a voice boomed into a microphone. “But the American people always rise to the occasion.”
“That’s right, we do,” Suzie said to herself as she marshaled the boys into a museum. “We definitely do.”
A tumultuous world, but also, they hoped, one ready for change. “I feel like this is the last shot,” Greg had said ruefully a few times. “Like if this doesn’t work, nothing will.”
Corbin. When Suzie and Greg explained it to people who had never been there, sometimes they talked about Colonel Sanders, who opened his first fried chicken stand in the north side of town. Greg, tall with a salt-and-pepper goatee, occasionally pulled on a white suit to play the Colonel at social occasions, and Suzie, a petite brunette who’d recently finished a term as a city commissioner, had lobbied for and won a commemorative park to draw tourism to the area.
Sometimes they talked about how they wanted tourism to increase, because the railroad jobs that used to run the economy had disappeared. The poverty rate for the surrounding counties was about 30 percent. The opioid epidemic had hit Corbin like a hammer, and the place was beautiful but it was also suffering.
“Lord, please bless this food and nourish our bodies,” Greg said on the morning before the inauguration as the family bowed their heads at a restaurant breakfast. “In your name we pray, Amen.”
“You know, you’d like to think the whole world will change after an election,” Suzie cautioned, “but we can’t expect huge changes.”
The small changes she wanted: deregulation, which would hopefully bring back coal and manufacturing jobs, which would hopefully bring back railroad jobs, which would hopefully help the drug problem because, as Suzie believed, people “were not meant to have too much time on their hands.”
On these issues, the Razmuses had collectively been persuaded that Donald Trump was the right choice. Saylor, 20, had listened to the man from his dorm at the University of Louisville, where he picked his way through anti-Trump protests daily. Henry listened, chlorinated and tired, on the ride home from high school swim practice. Shane listened in his middle-school social studies class.
Suzie and Greg listened as they worked in the cineplex, a tiny intersection of liberal Hollywood with the conservative Southern locale that had gone 82 percent for Trump.
It’s not that Suzie couldn’t understand some of what Meryl Streep meant when she got onstage at the Golden Globes and chastised the now-president.
But at the same time, she and Greg saw how people in Corbin treated trips to the movies as the vacations they couldn’t afford. How patrons cleaned up their popcorn boxes on Saturday night, then returned a few hours later on Sunday morning to attend the church that used the theater as a chapel. This was why she told her boys, when they worked at the refreshment stand, “You better have smiles on your faces, and the popcorn better be hot and buttery.” She wanted patrons to be able to focus on the movie experience, and not how the woman on the screen looked down on them because of who they voted for.
It’s not that they didn’t want people to make decent wages, but the 35 people their theater employed were mostly high school students in after-school jobs. A 16-year-old living with his parents surely didn’t need $15 an hour, they thought; paying it would mean raising the ticket prices that people already complained were too high.
“It bothers me,” Greg said at breakfast, “that because we supported Trump, we get lumped in as racists, or bad people.”
It bothered Suzie, too, she said, but it was important to always try to remember how other people might be feeling.
“There’s that line in ‘Hidden Figures,’?” Suzie said, referring to the movie about African American NASA employees in the 1960s, which their theater had recently run. “And there’s that line--what’s Spider-Man’s girlfriend’s name again?”
“Kirsten Dunst,” Greg supplies.
“Kirsten Dunst. There’s a line Kirsten Dunst says to one of the main characters: ‘You know I don’t have anything against you people.’ And the character says, ‘I know you think that’s true.’”
She had been thinking about that line. Trying to see other people’s truths and perspectives, and wondering whether the coming year would finally bring the country together.
It was still dark when they got up the next morning, Suzie ushering the boys into their jackets and ties and then sending them down to the hotel lobby for coffee.
“This is it, the big day,” she said when she joined them a few minutes later.
“I’m excited,” Saylor said.
“I wonder if when we get off the Metro we’ll start seeing protesters,” Suzie worried, but then reminded herself that it was people’s right to protest, just like it was her right to come to the inauguration.
They didn’t see any protesters, though, at least not obvious ones, and their seats by the Capitol were a sea of Trump buttons.
“This moment is your moment,” Trump said from the podium. “It belongs to you. It belongs to everyone gathered here today.” The Razmuses liked that message. It was what they were hoping to hear--a rebuke to big government, a promise that he would work for the people.
“Whether we are black or brown or white, we all bleed the same red of patriots,” the new president said, and Suzie and Greg felt pride and relief in their hearts, feeling like Donald Trump had gone out of his way to try to speak to all Americans. He hadn’t ad-libbed, as Suzie had feared. He hadn’t taken detours to insult Democrats or Hillary Clinton--he’d even thanked Barack Obama for a smooth transition.
The speech sounded unifying, to them. It sounded how Suzie had always hoped Trump would sound when he gave speeches. “Of course, he was preaching to the choir,” she acknowledged, because they were already conservatives--but although she tried to picture other people’s perspectives, she believed that anyone who truly listened to the speech would feel the same way.
When it was over, they made their way back through the crowds, walking until they ended up at a quiet Greek restaurant.
“Let’s celebrate,” she said, deciding to order a glass of wine with her lunch. “Trump is here. He’s our president now.”
“If what he said comes true, we’ll be all right,” Greg said. “We’ll all be all right.”
The next morning, as they piled back in their car to leave the city, they would see that not everyone had responded to the inaugural address the way they did. Hordes of protesters walked the sidewalks outside of their hotel. They would see footage of White House press secretary Sean Spicer give a news conference that Suzie found “bizarre,” lambasting journalists and inflating numbers for inaugural attendance.
She would feel a small pang of anxiety, before reminding herself that she didn’t have to like the brash, belligerent way the new administration delivered messages, as long as they were making progress on the policies she found important. She would vow to ignore the nonsense and focus on the bigger picture of the country.
For now, they finished their meal, and the boys pulled on the Trump wool hats they’d bought a few days before, and they left the restaurant into the gray day that had finally stopped drizzling.
The year 2017 stretched out before the Razmus family, and here at the beginning of it, they thought the future looked bright.
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