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Court: First Amendment trumps anti-discrimination ordinance

Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)

Brush & Nib owners Breanna Koski, left, and Joanna Duka, comment on an Arizona Supreme Court ruling Sept. 16, 2019, that said their First Amendment rights override a Phoenix anti-discrimination ordinance. (Photo by Dillon Rosenblatt/Arizona Capitol Times)

The Arizona Supreme Court says Phoenix cannot force owners of a business to create wedding invitations for same-sex couples.

The 4-3 decision, issued today, is nationally historic, as the U.S. Supreme Court has yet to decide on any anti-LGBT case. In the most notable instance, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the country’s highest court did not directly address whether civil rights lawsuits based on sexual identity could be an exception for religious-based businesses. 

“The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Planitiffs’ right to express their beliefs about same-sex marriage by telling them what they can and cannot say,” Justice Andrew Gould wrote for the majority.

The anti-discrimination ordinance was challenged by Brush & Nib owners Breanna Koski and Joanna Duka,  who do not want to prepare their custom wedding invitations and other products for same-sex nuptials.

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.

But in the carefully worded decision, the justices refused to give blanket protection to all businesses – including Brush & Nib – to simply turn away customers because of their sexual orientation. Gould said it leaves open the question of whether the two women could be forced to produce other products, like place cards for receptions, which do not specifically celebrate the marriage.

And it leaves in legal limbo the ability of Phoenix and other cities to enforce their ordinances that make it illegal to discriminate based on sexual orientation.

The Scottsdale-based Alliance Defending Freedom represented both Brush & Nib and the Colorado bakeshop in the U.S. Supreme Court case.

Attorney Jonathan Scruggs of Alliance Defending Freedom said he didn’t think it would be possible to have a broader scope ruling and that they all were “overjoyed” with the opinion.

“If you read the opinion, it couldn’t be broader,” Scruggs said. “We were the ones who walked into court and offered the court to say you can limit this ruling just to wedding invitations. Phoenix is the one who came to court and said everything our clients create is conduct and not speech … the court rejected that argument and ruled in favor of freedom of speech and freedom of religion and that, like I said, is a great win.”

Scruggs reiterated his arguments from January about this case protecting “Atheist musicians from performing at Easter services … [or] LGBT web designers from creating websites that criticize same-sex marriage.”

Scruggs, Duka and Koski said they were happy with the ruling because they get the final call when it comes to their artwork – “Not the government.”

They said they will continue to “serve everyone.”

“While they create art for all people, they cannot create custom artwork to celebrate and promote messages they disagree with,” Scruggs said. “What matters is the message not the person.”

But Lambda Legal, a gay rights advocacy organization, which filed its own legal brief urging the justices to uphold the Phoenix ordinance, had its own take on the ruling, even limited as it might be to wedding invitations.

“It is cracking the door open for businesses to use free speech rights to pick and choose among customers,” said Jennifer Pizer of Monday’s ruling. And that precedent, she said, is troubling.

“This particular context involved an anti-gay and LGBT religious view,” Pizer explaind. “But this analysis (by the court) could just as well be used as a reason to turn away people of other faiths or other groups of people whose lives or relationships don’t conform with business owners’ religious views.”

The decision drew dissent from retired Justice Scott Bales.

“Our (federal and state) constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs,” he wrote.

Gould and the majority, however, saw the issue through a different lens.

“The rights of free speech and free exercise (of religion), so precious to this nation since its founding, are not limited to soft murmurings behind the doors of as person’s home or church, or private conversations with like-minded friends and family,” he wrote.

“These guarantees protect the right of every American to express their beliefs in public,” Gould continued. “This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.”

The business owners filed suit in 2016 seeking a legal declaration that they were not subject to a city of Phoenix ordinance that makes it illegal for any business that provides services to the public to refuse services because of a person’s legally protected status.

That ordinance includes sexual orientation in that definition, with violators subject to up to six months in jail and $2,500 fines for each violation. They argued that the law amounted to compelling them to say or produce things that were contrary to their sincerely held religious beliefs.

Both a trial judge and the Court of Appeals rejected their claims, saying that the ordinance regulates their conduct, not their speech.

The Arizona high court heard arguments Jan. 22, and it took an unusually long time to reach a final decision — nearly eight months.

In the oral arguments, justices wanted to know if the message conveyed would be different for two couples with the same names — like Pat and Terry. If the couple is same-sex or not, they wanted to know if the wedding invitations would be different.

Scruggs argued the message would be different because the same-sex invitations send a specific celebratory message that would endorse that marriage.

The studio owners argued in a lower court ruling they cannot separate their religious beliefs from their custom made artwork.

Brush & Nib sells custom stationery, including invitations for weddings and other celebratory events.

Although the Arizona Supreme Court has appointed two new justices since the arguments in January, neither Justice James Beene nor Justice Bill Montgomery – who has opposed certain LGBT rights in the past – participated in the case.

Howard Fischer of Capitol Media Services contributed to this report. 

Editor’s note: This story has been revised to include contributions from Capitol Media Services and correct the headline which erroneously said the Phoenix ordinance was found to be unconstitutional. 

7 comments

  1. Can you provide a link to the decision so we don’t have to hunt for it? Thanks.

  2. Each of these decisions, beginning with Hobby Lobby and you getting to decide what prescription I can fill, gives bigotry a boost and spits on the law of equality. If these women can only be artistic for people just like them they need to turn their business into a hobby for friends. We now have companies not wanting to pay for birth control although they own stock in a company that sells it, a company that thinks their cakes won’t rise if the people requesting them are someone they judge, and now their artistic fingers cramp up even though their religious judgement is in direct contradiction with a god who warns people like them that judgment is his and to judge not lest ye be judged. I don’t know which is worse, having courts across America stacked with judges who buy into this idea that you get to judge me, my beliefs, or having people running a public business being allowed to do the same. Sounds like a growing precedent towards openly deciding I don’t want your kids in my school or neighborhood because of the color of their skin. We’ve been down that path before; it was inexcusable then and now.

  3. This is a very slippery slope. Can I then deny service to those who espouse beliefs AGAINST the LGBT community? If a conservative xtian can object to providing service to someone whose life doesn’t match the conservative’s beliefs, then I ought to be able to do the same. Of course, this sounds ludicrous.

    The fact is, if you want to run a business, you are sanctioned by the state to make money, so you cannot run afoul of the state’s discrimination laws. If you only want to serve part of a community, register a society, but don’t do business unless you will serve everyone.

    I’m amazed at the lengths people will go to to espouse their religion and force it on others.

  4. I am thankful that the court upheld the rights of these two business owners, rights thoroughly and explicitly outlined in the constitution. It is a tough area to be able to intelligently decipher through this issue, especially when Christians are clearly not uncomfortable with the persons, but rather with the action(s). Our courts judgmentally decide upon whether actions are inappropriate or even criminal every day, but that does not make them judgmental.

  5. Mark. It is not ludicrous. If you ran a business and decided to refuse service to someone of political beliefs that you disagree with, you should be perfectly in your rights to do so. I’m not saying it’s a good idea, but in a free society you should be able to do that. What is ludicrous is the idea that government can tell small businesses that they cannot refuse business to certain groups. To me, that is certainly not the mark of a free society; if anything it’s contradictory to one.

  6. No offense Mark, but I think you are misunderstanding the issue at hand. These religious people are not trying to force their religion or religious beliefs on other people. They’re not saying “these LGBT people must have the same beliefs as me if they want to obtain any products from my shop”. They only desire to honor their religious convictions. Notice how other than the wedding context, these religious people are still willing to serve LGBT people in their shop. Indeed, denying service to LGBT people in general is not their intention. I know that this court’s decision is inconvenient to same-sex couples who want to be able to obtain stuff for their wedding celebration (indeed I actually sympathize with these folks, considering all the time they have to waste just to get there), but at the end of the day, what we have here is a simple disagreement with personal choices. Do not think of it as mere bigotry towards homosexuals. Just think of it as simply expressing a different point of view on the subject.

  7. Agree with decision. Anybody that doesn’t want my business doesn’t get it. Free market – I am sure that there are others highly skilled that will be glad for the business.

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