The Commission insisted that the application of the Lexington Fairness Ordinance did not violate Hands On Original's right to free speech and its right to the free exercise of religion. HOO presented the Gay and Lesbians Service Organization with information in 2012 leading to the printing by another establishment at no extra cost and the T-shirts were printed, no harm done. The undamaged GLSO, however, determined that HOO must be punished and brought charges to the Commission.
An editorial of 30 March 2012 in the Lexington Herald-Leader demonized the small business for its refusal to produce T-shirts for the local homosexual group. In its “news” accounts front section, the paper also publicized a protest meeting, entitled “staff report” and shaded for effect, thus affording GLSO free publicity, giving time and place for a “protest” against HOO. A boycott effort was also engendered, largely through Face-book or some such thing, the objective being to bankrupt HOO.
The Herald-Leader advertized a “grand protest” in a downtown park, conveniently located 2.5 miles from the HOO headquarters, which might have been hard for some folks to find in order to “march.” Sixty people showed up out of a population of 297,000 or so, an indication of a gigantic HO-HUM. The local school system shut down its business with the company and the university was not likely to renew a contract with HOO that was expiring ($200,000 in the nine months preceding the dust-up, according to the local newspaper).
Enter the Supreme Court in June of this year ruling 5-4 in Burwell v. Hobby Lobby that for-profit employers with religious objections can opt out of providing contraception coverage under Obamacare. “We doubt that the Congress that enacted the Religious Freedom Restoration Act — or, for that matter, ACA – would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans,” Justice Samuel Alito wrote in the opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy. This precise wording applies to the Hands On Originals case.
The Court simply vindicated HOO's decision that it had the right to conduct its business as it saw fit, i.e., refusing to participate in an effort it deemed contrary to its religious beliefs, thereby cutting its own profits in favor of not undercutting the tenets of its faith. This is about the same as a restaurant owner refusing to sell whiskey, whether accruing to religious belief or not, even though he catered to public business. Has anyone ever heard of a distillery suing a McDonalds?
HOO exercised its rights under both the religion and free-speech elements of the First Amendment and the RFRA and the GLSO could have done the same, preaching that homosexuality is normal. That’s even-up and fair enough, you say? Well…no. The Commission said that the GLSO could propagate its “gospel” concerning lifestyle but punish those who disagreed with it. Both HOO and the GLSO were public entities, one inviting acceptable business and the other inviting acceptable members as well as business. That is s-o-o-o simple.
The GLSO can approach the ACLU now and get out the big guns for free to go after HOO as a civil matter to be settled by the courts. The objective, of course, would be to force HOO out of business account forestalling bankruptcy brought about by the huge fees the lawyers would demand for representing it. This may not be too easy, though, since in September 2009 the U.S. Court of Appeals for the Sixth District ruled that a Baptist Children's Home, Sunrise Children's Services, did not violate state or federal laws when it dismissed an employee who was engaged in homosexual conduct.
The court ruled that the home did not violate Title VII, the federal employment discrimination law, or the Kentucky Civil Rights Act.
And so it goes.
Jim Clark
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