LGBTQ decision goes against city
State Supreme Court sides with proprietor’s rights
A Phoenix ordinance that protects lesbian, gay, bisexual and transgender people from discrimination cannot be used to force artists to create custom wedding invitations for same-sex couples, the Arizona Supreme Court ruled Monday.
The high court’s decision overturns multiple lower-court decisions that protected the portion of Phoenix’s nondiscrimination ordinance that applies to the LGBTQ community.
An attorney for Phoenix insisted that the ruling was narrow and did not strike down the city law. Rather, the court ruled that “one company” could refuse to make “one type of product” for LGBTQ couples, he said.
“Today’s decision is not a win, but it is not a loss. It means we will continue to have a debate over equality in this community,” Mayor Kate Gallego said.
However, LGBTQ community advocates fear that the decision, however narrow, creates a pathway for other lawsuits.
“This decision opens the door for other bigoted owners to outright discriminate against LGBTQ people for who we are and who we love,” Brianna Westbrook, vice-chair of the Arizona Democratic Party, tweeted after the ruling.
The legal battle began in 2016 when Joanna Duka and Breanna Koski, owners of Brush & Nib Studio, sued Phoenix — 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 LGBTQ couples because they believe it would be the equivalent of endorsing the marriage.
The women are represented by Scottsdale-based Alliance Defending Freedom, a conservative legal group challenging similar laws across the country.
Recently, the group represented a Colorado baker facing penalty under that state’s anti-discrimination law. The case landed before the U.S. Supreme Court in 2018, but the justices punted on the key issues of the case.
Legal experts say it’s a matter of time until a similar challenge comes back before the U.S. Supreme Court. And given the Arizona Supreme Court’s decision, it could be this case.
The case boils down to a balance between protecting free speech and preventing discrimination.
During oral arguments in January, Alliance Defending Freedom attorney Jonathan Scruggs argued that the studio is not refusing to design invitations for same-sex couples because of their sexual orientation, but rather because of 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, he argued.
Scruggs said the women happily would sell their premade 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’s 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 married before consenting to provide the invitations, “that’s not about the message, that’s about who the person is.”