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Arizona Supreme Court to rule on discrimination case Monday

Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)

Breanna Koski, left, and Joanna Duka of Brush & Nib Studio are challenging a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. They do not want to prepare custom wedding invitations and other products for same-sex nuptials. (Photo courtesy Alliance Defending Freedom)

The Arizona Supreme Court will decide Monday how much leeway − if any − business owners have to refuse to serve certain customers based on religious beliefs.

Officially the case is whether the city of Phoenix can enforce its ordinance which makes it illegal to discriminate in providing goods or services at places of public accommodation based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability. It also forbids advertisements or other notices which say that business from certain protection groups “would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”

Challenging it are Joanna Duka and Breanna Koski who own Brush & Nib Studio, who prepare both custom and pre-printed wedding invitations, place cards and other materials. The pair, who say they are “devout Christians,” want the justices to declare that they need not prepare those materials for same-sex couples who want to marry.

But the decision could have broader implications, setting the rules for when a business owner’s “sincerely held religious beliefs” provide immunity from similar ordinances that already exist in Tucson, Tempe and Flagstaff. And it would set the legal bar for future efforts to provide legal protections for the LGBTQ community.

Monday’s ruling is particularly important as the U.S. Supreme Court has yet to rule on the question.

Last year the nation’s high court was asked to decide whether a Colorado baker could refuse to create a wedding cake for a gay couple.

The court sided with the baker − but sidestepped the religion question. Instead, the majority said the baker had not gotten a fair hearing before the Colorado Civil Rights Commission.

So important is the outcome of the Arizona case that dozens of outside organizations have filed their own legal briefs on the matter.

The American Civil Liberties Union and Lambda Legal are urging the justices to allow the ordinance to be enforced. They say businesses can’t ignore anti-discrimination laws based on sexual orientation any more than they could refuse to serve blacks.

On the other side, the Jewish Coalition for Religious Liberty and the Cato Institute argue that people can’t be forced to act in ways and write out messages that violate their beliefs.

And even some politicians have weighed in, including Republican Attorney General Mark Brnovich who told the justices that the Phoenix ordinance “forces petitioners to create art that expresses the message that particular unions are marriages, despite their sincerely held religious beliefs that such union are not marriages and are antithetical to God’s design for marriage.”

The Arizona Court of Appeals, in siding with the city last year, brushed aside claims by the two women that the ordinance violates their constitutional and religious rights. The court said it regulates conduct, not their beliefs.

“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,” wrote Judge Lawrence Winthrop for the unanimous court.

He said nothing in the Phoenix ordinance bars the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. And he said they are free to refuse to create wedding-related merchandise for same-sex couples − as long as they do not provide the same service for opposite-sex couples.

“What appellants cannot do is use their religion as a shield to discriminate against potential customers,” Winthrop wrote.

In asking the justices to overturn the appellate court, the Alliance Defending Freedom, the Christian law firm representing the women, said the ordinance effectively forces them to express a viewpoint with which they disagree. They said that requiring them to design a wedding invitation for a same-sex couple would be the equivalent of requiring an artist to accept a commission to paint swastikas.

But Winthrop suggested that what the women were producing hardly qualified as forcing them to express a sentiment with which they disagreed. He said the items “would likely be indistinguishable to the public,” whether the invitations were for a heterosexual or homosexual couple.

“Take for instance an invitation for the marriage of Pat and Pat,” Winthrop wrote. “He said that could have been created for Patrick and Patrick, or Patrick and Patricia.

“The invitation would not differ in creative expression,” the judge wrote. And he rejected the idea that selling that invitation to a same-sex couple would be a forced endorsement of the marriage.

“It is unlikely that a general observer would attribute a company’s product or offer or services, in compliance with the law, as indicative of the company’s speech or personal beliefs,” Winthrop wrote.

One comment

  1. 1) This case is a sham. When Brush & Nib was founded, its articles of incorporation were completely secular. A year later, B&N filed new paperwork that was dripping with religion, absurdly so. Immediately after, Alliance Defending Freedom sued Phoenix claiming its ordinance protecting gays from discrimination was a terrible burden on B&N’s “speech.”

    2) Antidiscrimination laws regulate conduct, not speech. And decorating invitations and seating arrangements (“Jones – Table 2”) with calligraphy and folksy painting is not speech in the first place. Speech is situation-specific and must be understood by the audience without a “translator” from the “speaker” sharing what is being expressed.Someone who receives an invitation made by B&N would never open the envelope and think, “This invitation was prepared under protest, as required by city ordinance, and does not indicate the vendor’s support for same-sex marriage in any way.” The invited guest would see the invitation and think, “Oh, I’m so happy. Let me check my calendar to make sure I can attend.” The speech is the paying customers’, not the “artists’.”

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