Arizona court upholds anti-discrimination law
The Arizona Court of Appeals affirmed Thursday that a Phoenix law protecting lesbian, gay, bisexual and transgender people from discrimination is constitutional and that local wedding vendors must serve same-sex couples.
The decision comes just days after the Supreme Court weighed in on a similar lawsuit out of Colorado with a narrow ruling that left many legal questions unanswered.
The Arizona decision, however, thoroughly addressed, and rejected, the First Amendment arguments made by local wedding-invitation designers who wanted to quash the city’s ordinance.
“We recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute ‘grave and continuing harm,’” Presiding Judge Lawrence F. Winthrop wrote in the opinion of the court.
Phoenix has had a non-discrimination ordinance on the books since 1964, but the City Council expanded it to protect against sexual-orientation and gender-identity bias in 2013.
The ordinance bans discrimination in housing, employment and public accommodations, including privately owned businesses. Business owners and individuals who don’t comply can face criminal prosecution and a misdemeanor charge, with each violation punishable by up to six months in jail and a $2,500 fine.
Joanna Duka and Breanna Koski, owners of Brush & Nib Studio and self-described evangelical Christians, sued Phoenix in 2016 over the part of the city ordinance that prohibits discrimination based on sexual orientation.
Duka and Koski create invitations and other handmade artwork for weddings and events. The artists — who hold the religious belief that marriage is 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.
The artists also want to publish a statement on their website asserting that because of their religious convictions, they will design custom artwork only for heterosexual couples. No gay couple had requested the women’s services when they filed the lawsuit.
The Scottsdale-based Alliance Defending Freedom represented Brush & Nib. The conservative legal group has represented wedding vendors across the country in similar lawsuits.
During oral arguments in April, Jonathan Scruggs of the Alliance Defending Freedom said that Duka and Koski would have no problem selling pre-made artwork to LGBT customers, but they just “won’t promote same-sex marriage” by designing custom wedding materials for their nuptials.
Writing the names of two men or two women on an invitation, or producing specialized artwork for the express purpose of a same-sex wedding, would be the same as endorsing the wedding, Scruggs said. Forcing the artists to make these products would be “compelled speech” and illegal, he said.
He said the women’s actions are not discriminatory because their decision not to serve LGBT customers is based on the message they’re being asked to create, not on the sexual orientation of the individual requesting the services.
Attorney Eric Fraser, who argued on behalf of Phoenix, disagreed. He said Duka and Koski’s opposition is about “who is getting married — not the message.” He said the women decide whether to serve a couple based solely upon their gender — not the message they want to convey on the invitations.
The artists would be allowed to decline a request by a same-sex couple to design an invitation or piece of artwork that says something positive about same-sex marriage, just like they could say “no” to a request they find “tacky,” such as a motorcycle-themed invitation, Fraser said.
What they cannot do is deny a same-sex couple the same basic invitation they would provide to a heterosexual couple just because they request two male names or two female names, he said.
The court agreed with Phoenix’s interpretation.
“The items (Brush & Nib) would produce for a same-sex or oppositesex wedding would likely be indistinguishable to the public. Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa). This invitation would not differ in creative expression,” Winthrop wrote.
He also wrote that it is “unlikely that a general observer attribute a company’s product or offer of services, in compliance with the law,” as an en- dorsement of marriage between same-sex couples.
In the opinion, Winthrop wrote that the artists can still post a message on their website “endorsing their belief that marriage is between a man and a woman,” they just can’t post a discriminatory statement about refusing service to LGBT couples.
He wrote that the women can also include a disclaimer that their invitations are not an endorsement of “their customer’s exercise of their constitutional right to marry.”
The Alliance Defending Freedom pledged an appeal. “Artists shouldn’t be forced under threat of fines and jail time to create artwork contrary to their core convictions. The court’s decision allows the government to compel two artists who happily serve everyone to convey a message about marriage they disagree with. This contradicts basic freedoms our nation has always cherished,” Scruggs said in a statement.