Phoenix: Gay discrimination case about commerce, not 1st Amendment

The city of Phoenix is fighting back against a bid by a Christian law firm to get the state’s high court to conclude that businesses have a right to refuse to provide certain services to gays.

In new legal filings Sept. 7, attorney Eric Fraser said there is no dispute about the heart of the case.

“If a same-sex couple asks Brush & Nib (Studio) for custom wedding products, Brush & Nib will refuse service, regardless of the wording or design the couple wants,” he told the Arizona Supreme Court. And the owners of the firm would make a plain-vanilla wedding invitation listing “Pat and Pat” if it means “Patrick and Patricia” but refuse to make an identical one for “Patrick and Patrick.”

“That’s why this case is about commerce, not speech, art, or religious beliefs,” he wrote. “Under settled law, the government does not infringe the freedom of speech or religion by prohibiting public accommodations from refusing service based on a customer’s race, religion, sexual orientation, etc.”

Put simply, Fraser said, if a business is willing to do wedding invitations, place cards and similar material for heterosexual couples, it cannot refuse to do the same thing for another couple simply because both are the same sex.

What the high court decides has implications beyond the Phoenix anti-discrimination ordinance.

It also would determine whether other communities with similar laws like Tucson, Flagstaff and Tempe, can enforce them. And it will either clear the way or block it for other cities, towns and counties to enact similar rules.

The case involves Joanna Duka and Breanna Koski, owners of the studio, who say they are “devout Christians” who believe that the only legitimate marriage is between one man and one woman.

As a result, they do not want to be forced to prepare custom wedding invitations and other materials for same-sex couples, arguing that doing so would force them to espouse beliefs that are contrary to their sincerely held religious beliefs. And they want the ability to post a sign to that effect.

Attorney Samuel Green of Alliance Defending Freedom said the pair would sell their pre-made artworks to anyone, including gays. The issue, he said, revolves around someone asking them to create artwork to celebrate something that violates their religious beliefs.

But Fraser, in the new filings on behalf of the city, told the justices they should reject the claim this is about forcing the women to create unique “art.”

“Brush & Nib explicitly intends to refuse to make any custom wedding products for any same -sex couples,” he wrote. “That includes mundane items like place cards, which typically have only guests’ names and table numbers – not the names of the couple getting married or a hint of their sexual orientation.”

He even provided the justices actual examples of such place cards made by Brush & Nib for heterosexual couples while pointing out the owners “refuse to make literally the exact same products, with the same guest names, simply because of the sexual orientation of the couple getting married.”

And it is precisely that kind of discrimination based on a customer’s sexual orientation that is illegal – and that Fraser said the city is free to outlaw.

Fraser also said even “creative businesses” have no absolute constitutional right to refuse service.

“For example, photographers unquestionably have expressive rights worth protecting, but a high school prom photographer cannot refuse to take pictures of Mexican couples,” he wrote. “Nor can an atheist chef refuse to cook for Christians.”

And Fraser said it is no more legal for Brush & Nib to refuse service to same-sex couples than it is for them to refuse to provide wedding invitations to interracial couples.

He also told the justices they should ignore claims of “dire consequences” from upholding the law, saying they “exist only in Brush & Nib’s imagination, not in reality.”

For example, Fraser said the Phoenix ordinance could not force a gay graphics designer to create cover art for a book defending Mormon opposition to same-sex marriage.

“Public accommodation laws do not prevent companies from refusing business based on message, and Brush & Nib offers no evidence that Phoenix has ever enforced its law in that way,” Fraser said. And he said the studio can even refuse to make products that advocate for the rights of transgender individuals.

“But any message in ‘Ann / Table Three’ remains unchanged regardless of who is getting married,” he said.

Fraser also urged the justices not to accept the argument that the women are being forced to write celebratory phases, such as encourage people to “share in the joy of a marriage” when the studio’s owners do not share that belief. He said that phrase simply reflects the sentiments of the couple and their parents, “not their calligrapher.”

And it still leaves the fact that if the studio will willingly write out that phrase for the couple and their parents on some invitations “then it cannot refuse to scribe the same phrase merely because the couple happens to be Catholic, Asian or gay.”

“Nothing about wedding stationery suggests that the calligrapher endorses the couple or the marriage,” Fraser wrote.

“If Brush & Nib could refuse to make a plain-vanilla wedding invitation merely because it disagrees with the underlying marriage, then a sign maker who happily makes custom ‘Happy Birthday’ banners could likewise refuse to make one for a Christian child,” he said. “That’s not the law, nor should it be.”

No date has been set for the justices to consider the issue.