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Gay discrimination case could turn on question of message conveyed

Brush & Nib's Joanna Duka (left) and Breanna Duka outside the Arizona Supreme Court building. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

Brush & Nib’s Joanna Duka (left) and Breanna Koski outside the Arizona Supreme Court building. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

The oral arguments the Arizona Supreme Court heard today on a Phoenix anti-discrimination ordinance centered on what a message conveys.

The justices hammered the two sides of the Brush & Nib Studio v. City of Phoenix case with questions in front of a packed house of spectators including a downstairs room filled with more than one hundred more people.

On one side is Alliance Defending Freedom’s Jonathan Scruggs representing Joanna Duka and Breanna Koski of Brush & Nib Studio. On the other is Eric Fraser representing the city.

Attorney Jonathan Scruggs, who represents Brush & Nib owners Joanna Duka and Breanna Koski, said if a male-female couple named Pat and Terry — Chief Justice Scott Bales’ hypothetical example — have a wedding invitation that is identical to a same-sex couple with the same names, the message conveyed is still different.

“It sends a celebratory message about that wedding,” Scruggs said about the example of a same-sex couple.

Duka and Koski are devout Christians who believe their work is inextricably related to their religious beliefs. They strongly believe a marriage is meant to be between a man and a woman, and argue they cannot separate their beliefs from their work.

Given their religious background, they would not endorse a message of matrimony between a same-sex couple even if every single detail on an invitation they create is identical to that of a heterosexual couple seeking marriage.

If the court affirms lower-court decisions, the studio owners would be facing $2,500 in fines for each day in violation of the law plus up to six months in jail. They would be the first people to be incarcerated in this type of case. All the others faced civil penalties.

Alliance Defending Freedom Senior Counsel Jonathan Scruggs speaks to the press after the Supreme Court oral arguments in the Brush & Nib case. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

Alliance Defending Freedom Senior Counsel Jonathan Scruggs speaks to the press after the Supreme Court oral arguments in the Brush & Nib case. (PHOTO BY DILLON ROSENBLATT/ARIZONA CAPITOL TIMES)

Scruggs, who is with Alliance Defending Freedom, a Christian organization that advocates for religious freedom, sanctity of life and marriage and family, used an equivalency to an LGBT artist asked to create something that would defend marriage for a Catholic church event, or a Muslim artist that “might be willing to serve Christians … but not Easter.”

The case began in May 2016 when attorneys for the studio filed a lawsuit in Maricopa County Superior Court. The studio’s owners claimed the city’s anti-discrimination laws violate their artistic and religious freedom.

Scottsdale-based ADF, also represented Jack Phillips in the Masterpiece Cakeshop case commonly known as the “gay wedding cake” case, which reached the U.S. Supreme Court in 2017. Phillips was cited for refusing to make a wedding cake for a same-sex couple, and the court ruled in his favor 7-2 that he had not received a fair hearing from the Colorado Civil Rights Commission, but did not rule on any other aspect of the case.

It’s not just about weddings. Scruggs said the studio also wouldn’t create art for a same-sex anniversary or memorial service. But he did say, “the [studio owners] would be happy to work with an LGBT couple” for a painting that would be used for home decor, or to design a business; just not an event that would celebrate a same-sex couple.

Justice John Pelander asked both, “who determines what’s message based and what isn’t. And who determines whether it’s a message-based objection.”

Neither the city nor ADF gave a clear answer to that question.

The city kept repeating the same arguments used in the lower courts, which have ruled in their favor, but the Supreme Court did poke one hole in the argument.

Bales asked Fraser if it would be consistent with the city statute if somebody who has religious belief that only men and women should be married created wedding invitations that on the top reads “marriage is only between a man and a woman.” Fraser replied, “they could,” as long as they sold it to any couple.

Fraser also said they can post derogatory or offensive statements publicly, as long as they don’t say they refuse to sell items that would align with discrimination.

In October 2017, Maricopa County Superior Court ruled that the Phoenix City ordinance does not violate the studio’s right to free speech or freedom of religion.

Adopted in 2013, the ordinance prohibits discrimination based on race, sex, color, religion, national origin, sexual orientation, marital status, gender identity or expression, or disability. It applied to both the general public and businesses that offer services.

In 2018, the Arizona Court of Appeals then affirmed the decision that Brush & Nib cannot legally refuse to sell their custom-made products to same-sex couples. The ruling also stipulated they can’t post any statement to their website discriminating against same-sex couples. In November 2018, the Arizona Supreme Court agreed to hear the case.

The anti-discrimination ordinance has reached national attention and local.

Former Phoenix Mayor Greg Stanton tweeted in late December, “our Phoenix Non Discrimination Ordinance makes clear we will not tolerate disparate treatment of our LGBTQ residents. The ordinance has the added benefit of making Phoenix more economically competitive. Our leaders should support, not undercut, human rights,” in response to Attorney General Mark Brnovich urging the Supreme Court to block Phoenix from enforcing the ordinance against Brush & Nib.

Brnovich at the time said, siding with Phoenix in the legal fight amounts to “coercing artists to use their talents to create government-sponsored messages.”

The company specializes in hand-painting and lettering for weddings and other special events. Koski is the artist who brings the Brush part of the company’s name, while Duka, the calligrapher, makes up the Nib portion. The company was founded in 2015 and operates solely online. There is no brick and mortar location.

Vice Chief Justice Robert Brutinel recused himself from the case. Division II Court of Appeals Judge Christopher Staring sat in for him.

The court heard oral arguments today, but a decision won’t be made for what could be months.

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