Is Phoenix’s non-discrimination ordinance a violation of freedom or a necessary measure that protects minority groups against discrimination?
Two evangelical Christian wedding invitation designers got their day in Arizona’s high court Tuesday, the next step in their quest to nullify a portion of Phoenix’s ordinance that protects lesbian, gay, bisexual and transgender people from discrimination.
Joanna Duka and Breanna Koski, owners of Brush & Nib Studio, sued Phoenix in 2016, arguing that the ordinance violates their First Amendment and Arizona Constitutional rights to free speech and religion.
Duka and Koski create invitations and other handmade artwork for weddings and events. The women — who hold the religious belief that marriage should only be between one man and one woman — do not want to design invitations or other custom artwork for LGBT couples because they believe it would be the equivalent of endorsing the marriage.
On Tuesday, the justices peppered both sides with questions, illustrating the significance of their eventual ruling — which could have national implications.
What’s the lawsuit about?
The case boils down to a balance between protecting free speech and preventing discrimination.
Scottsdale-based Alliance Defending Freedom, the national conservative legal group representing Brush & Nib, argued that the studio is not refusing to design invitations for same-sex couples because of their sexual orientation, but rather on the message an invitation conveys.
In other words, designing their wedding invitations would be the equivalent of celebrating the marriage, which is a message the women do not want to express, Alliance Defending Freedom attorney Jonathan Scruggs argued.
Scruggs said the women happily would sell their pre-made invitations to a same-sex couple, or help a same-sex couple design a custom art piece for their home. They just don’t want to create materials that will be used in the celebration of a practice they don’t condone.
He equated his argument to a Muslim designer declining to make Easter decorations, but still serving Christian customers with other services. He said business owners can serve all members of the community without celebrating things they disagree with.
Phoenix’s attorney, Eric M. Fraser, argued that it’s not the message, but the customer that the women really take issue with.
Phoenix has had a nondiscrimination ordinance on the books since 1964, but the City Council expanded it to protect against sexual orientation and gender identity bias in 2013.
He said Phoenix’s law only requires businesses to provide the same services to all classes of people. Therefore, if the women would provide an invitation to an opposite-sex couple, it must produce an identical invitation for a same-sex couple.
Changing the names to two male names or two female names does not constitute a change in message, Fraser argued.
He said that if someone calls the studio and asks the women to design an invitation for his or her wedding, and the women have to ask the sexes of the individuals getting marries before consenting to provide the invitations, “that’s not about the message, that’s about who the person is.”
Justices ask: Where’s the line?
A Supreme Court case has profound implications for LGBT rights and religion’s place in public life. The case pits a Denver-area gay couple against a baker who cited his Christian faith in refusing to make a cake for their wedding celebration. (Dec. 1)
Chief Justice Scott Bales started by asking Scruggs a question posed in the Arizona Court of Appeals decision in favor of Phoenix’s ordinance:
If someone asks for invitations to the wedding of Pat and Terry, does it matter whether Pat and Terry are male or female, even though they would order “identical stationery?”
“Yes, your honor, because context matters,” Scruggs replied.
That was a repeated statement by Scruggs throughout his 30-minute argument. He said that the message his clients are being asked to create and the context in which that message would be used must be considered.
The justices then went into a series of hypothetical scenarios that could arise given Alliance Defending Freedom’s interpretation of Phoenix’s law:
If someone goes to a tattoo artist, can the artist refuse to tattoo women if they have a deeply held belief that women shouldn’t have markings on their skin?
Or if a customer asked for a tattoo of a heart with the letters “S” and “J” in it, can the artist ask the genders of “S” and “J” before he or she decides to design the tattoo?
Can a disc jockey create a wedding reception playlist for a couple, and then turn them away when he or she learns they are gay?
What about an interracial couple? Can a stationary artist deny them based on their religious convictions?
“Where is the line you draw?” Justice Andrew Gould asked.
Justice’s ask: Is this law too tough?
The justices also challenged Fraser with hypothetical situations, asking him to weigh in on whether the Phoenix ordinance would allow a variety of practices.
For instance, Bales asked if Brush & Nib agreed to create invitations for same-sex couples, but wrote “marriage is between one man and one woman” at the top of every invitation, would that be allowed?
“They probably could,” Fraser said, noting that as long as they provide the same product to everyone, the women can choose which products to offer.
Justice Clint Bolick did not like the “probably” in Fraser’s answer. He questioned whether the ordinance is unclear about what is and isn’t permissible by businesses.
That creates a “very substantial burden on religious belief and the exercise thereof,” he said, also noting a potential “chilling effect” because of the lack of clarity.
“If they misread it … (there could be) criminal punishment,” Bolick said.
He noted that Phoenix’s penalties for violating the nondiscrimination ordinance are some of the harshest in the country. The penalties include six months in jail and a $2,500 fine for each day an individual does not comply.
What happens next?
Following the hearing, more than 100 Brush & Nib supporters gathered with signs that said, “Let artists create freely.”
On the other side of the courthouse, diversity and inclusion coalition One Community and other supporters of Phoenix’s nondiscrimination ordinance held signs that read, “Open for business to everyone!”
Both sides know how important the Arizona Supreme Court’s decision will be — not only in Phoenix but potentially nationally.
Other similar cases involving Christian photographers, bakers and other wedding vendors are weaving their way through court systems, challenging nondiscrimination ordinances across the country.
IN 2018, the U.S. Supreme Court heard a case involving a Colorado baker and the state’s anti-discrimination law, but the justices punted on the key issues of the case.
Legal experts say it’s a matter of time until another similar challenge comes back before the U.S. Supreme Court. And depending on the outcome, it could be this case that heads to Washington.
The Arizona Supreme Court will likely issue its decision in the coming months.
Read or Share this story: https://www.azcentral.com/story/news/local/phoenix/2019/01/22/arizona-supreme-court-hears-case-phoenix-lgbt-wedding-invitations-brush-nib/2648514002/