The state’s high court has agreed to decide whether cities can force businesses to do work for those whose views, practices or lifestyles conflict with the owners’ religious beliefs.
The move Tuesday by the Arizona Supreme Court most immediately affects the validity of a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. It is being challenged by two women who do not want to prepare custom wedding invitations and other products for same-sex nuptials.
But what the justices rule ultimately will govern the extent that all communities — and the state itself — can force those who say they are open for business to all to pick and choose their customers. And it most definitely would affect similar ordinances in Tucson, Tempe and Flagstaff.
The decision to hear the case is at least an interim victory of Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, who are seeking to void the Phoenix ordinance. The state Court of Appeals earlier this year rejected their claim that making it illegal for them to turn away business violates their constitutional rights.
No date has been set for the hearing.
The women say they have no problem selling pre-made products to same-sex couples.
Instead, the issue is what they call “customer-directed projects” where invitations and other items are prepared in consultation with the people who want their designs. Attorneys from Alliance Defending Freedom, an organization of Christian lawyers, said that essentially forces them — unconstitutionally — to “speak in favor of same-sex marriages.”
That argument did not fly with the Court of Appeals.
“Although (the Phoenix ordinance) may have an incidental impact on speech, it’s main purpose is to prohibit discrimination,” wrote Judge Lawrence Winthrop for the unanimous three-judge panel. That, he said, means the law “regulates conduct, not speech.”
And Winthrop said that the women, having decided to offer their services to the public, must live within the law.
“Simply stated, if appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,” he said.
The court also said nothing was prohibiting the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. He also said they are free to post statements in their shop about their personal beliefs about same-sex marriages, or even to say that their creation of items for same-sex weddings is not an endorsement of what their customers are doing.
Winthrop also said if the women don’t want to create items for same-sex weddings, they are free to do that — but only if they don’t create the same items to heterosexual couples.
“What appellants cannot do is use their religion as a shield to discriminate against potential customers,” he said.
At this point there is no clear federal precedent on the issue.
Earlier this year the U.S. Supreme Court threw out a lower-court ruling which said a Colorado baker has no right to refuse to create a wedding cake for a gay couple.
That decision, however, was based on the justices saying the baker had not gotten a fair hearing before the Colorado Civil Rights Board. The court never reached the question of whether his religious beliefs trumped the rights of the gay couple in that case to force him to design a cake.