Ky. Corporation Does Not Have ‘Religious Freedom’ Right To Discriminate, Says Americans United

Church-State Watchdog Group Says Hands On Originals Should Have Made T-Shirts For Gay-Pride Event

Hands On Originals, Inc., does not have a free-speech or free-exercise right to violate Lexington-Fayette Urban County, Ky., anti-discrimination laws, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed yesterday with the Commonwealth of Kentucky Court of Appeals, Americans United said Hands On Originals cannot use the religious beliefs of its owner as legal cover for refusing to make T-shirts for a gay-pride event.

“Lexington-Fayette Urban County’s anti-discrimination law means no one has the right to treat LGBT people as second-class citizens,” said the Rev. Barry W. Lynn, executive director of Americans United. “Hands On Originals does not get a special exemption from this regulation simply because of its owner’s religious convictions.”

The Gay and Lesbian Services Organization (GLSO) had asked Hands on Originals to make shirts commemorating the 2012 Lexington Pride Festival, but the company’s owner, Blaine Adamson, refused – citing his religious beliefs. Since Lexington-Fayette Urban County prohibits discrimination on the basis of sexual orientation, GLSO made a successful complaint against the company with the Lexington-Fayette Urban County Government Human Rights Commission. But the Fayette County Circuit Court overturned that ruling earlier this year.

Hands On Originals has claimed that its products are “artistic” in nature and therefore the company should not be forced to print shirts containing customers’ messages with which it does not agree. In its brief, Americans United explains that if that argument succeeds, it could be used to justify virtually any refusal of service.

“Accepting the arguments made by Hands On Originals in this case would not only put Kentucky courts in conflict with First Amendment decisions from across the country, but also would allow nearly any business alleging that its provision of goods or services is expressive to discriminate as it pleased,” the brief asserts. “Gay men, lesbians, and members of other protected classes (and their children) would not know which businesses they could patronize and could not expect the law to protect their rights of access to public accommodations.”

This brief was filed in conjunction with Americans United’s Protect Thy Neighbor project, an initiative launched this year that seeks to ensure no one uses religion as an excuse to discriminate against others.

“We’ve been down this road before,” said AU Senior Litigation Counsel Gregory M. Lipper. “In the 1960s, courts ruled against business owners who tried to use their religious beliefs as an excuse to discriminate on the basis of race. The outcome should be no different when it comes to discrimination on the basis of sexual orientation: The religious beliefs of business owners don’t give them a right to treat LGBT people as second-class citizens.”

The brief for Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, Inc. was prepared by Lipper, AU Legal Director Richard B. Katskee, and AU Madison Fellow Carmen Green. (Green is admitted in Virginia only, and is supervised by Katskee, a member of the D.C. Bar.) David Tachau and Katherine E. McKune from the Kentucky law firm of Tachau Meek PLC served as co-counsel.

Kim Davis Must Issue Valid Marriage Licenses To All Qualified Couples, Says Americans United

Church-State Watchdog Group Says Davis Should Either Do Her Job Or Find A New One

Rowan County, Ky., Clerk Kim Davis must issue valid marriage licenses to all qualified couples, including those of the same sex, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed yesterday evening with the 6th U.S. Circuit Court of Appeals, Americans United said Davis' religious beliefs do not trump the U.S. Supreme Court's marriage-equality decision in Obergefell v. Hodges, nor does she have the right to prohibit Rowan County from issuing marriage licenses to anyone.

"The First Amendment is not the personal plaything of Kim Davis or any other government official," said the Rev. Barry W. Lynn, executive director of Americans United. "No official has the right to deny constitutional rights to others simply on the basis of their own religious beliefs."

After the Obergefell ruling, Davis refused to issue marriage licenses to anyone because of her opposition to marriage equality. She also stopped the Rowan County deputy clerks from issuing licenses, a decision that violated a court order and landed her in jail in September.

Rowan County deputy clerks began issuing licenses to all couples while Davis was  in jail, but after her release she altered Rowan County's marriage licenses to remove any mention of Rowan County, the name or title of any clerk or deputy clerk and even the signature of the official issuing the license. Kentucky law requires an issuing clerk's name to appear on these licenses, so it remains unclear if the documents are valid.

Davis claims that her religious beliefs permit her to withhold marriage licenses from same-sex couples, but so far federal courts have not supported her position.

In its brief, Americans United argued that Davis has no right to deny marriage licenses to Kentucky citizens.

"Davis could not give her church or her pastor the right to block Rowan County from issuing marriage licenses to eligible couples," the brief reads. "Nor, therefore, may she arrogate to herself the right to stop the County from issuing those licenses."

Kentucky's new governor, Matt Bevin, issued an executive order earlier this week directing the removal of the county clerk's name from Kentucky marriage licenses. The brief notes that this order itself appears to violate Kentucky law, and that Davis' unilateral decision to change the licenses would, if allowed, spawn chaos in Kentucky and undermine citizens' marriage rights..

"Each time a county clerk asserted a religious objection to the operative marriage license, the legislature would need to agree on and authorize a different form; the executive would need to design and distribute that new form; and, most importantly, the marrying couple would be unable to get a license unless and until both branches completed these tasks," asserts the brief.

Observed AU Senior Litigation Counsel Gregory M. Lipper, "Because we don't live in a theocracy, Kim Davis must comply with the Constitution and stop imposing her religious beliefs on the citizens of Rowan County. Davis may marry or not marry whomever she likes, but her religious objections to marriage equality do not allow her to block the lawful marriages of others."

The brief for Miller v. Davis was prepared by Lipper, AU Legal Director Richard B. Katskee and Madison Fellow Natacha Lam. (Lam is admitted in New York only and is supervised by Katskee, a member of the D.C. Bar.)