PHOENIX — Anti-discrimination laws do not trump the rights of business owners to refuse to provide certain services to gays, the Arizona Supreme Court ruled Monday.
In a divided decision, the majority concluded that the owners of Brush & Nib Studios have a constitutional right to refuse to produce wedding invitations for same-sex couples. Justice Andrew Gould, writing for the 4-3 majority, said the sincerely held religious beliefs of the two women who own the business protects them from having to produce something that runs contrary to those beliefs.
But in the carefully worded ruling, the justices refused to give blanket protection to all businesses — including Brush & Nib — to simply turn away customers because of their sexual orientation.
The decision is limited to the ability of this business and presumably others to refuse to produce wedding invitations and similar items that could be seen as celebrating a same-sex marriage. That leaves open the question of whether business owners could be forced under a city’s anti-discrimination ordinance to produce other products for gay weddings, 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, like Tucson, Tempe and Flagstaff, to enforce their ordinances that make it illegal to discriminate based on sexual orientation.
The decision drew a dissent from Justice Scott Bales, who recently retired after taking part in the case.
“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 a 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 as person’s sincere religious beliefs.”
The case involves Breanna Koski and Joanna Duka, the owners of the studio who say they are devout Christians who believe the Bible allows marriage only between a man and a woman. They 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 violator subject to up to six months in jail and $2,500 fines for each violation. The pair, represented by the Christian public-interest law firm Alliance Defending Freedom, argued 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 the ordinance regulates their conduct, not their speech.
During legal arguments in January, attorney Eric Fraser, representing Phoenix, conceded the city could not force the women to produce custom invitations with obvious endorsements of same-sex marriage. But he told the justices that they could not refuse to produce all invitations based solely on the sexual orientation of the couple.
Jonathan Scruggs, an attorney for the alliance, sought a broader legal shield.
He also introduced several samples of the kind of invitations that Brush & Nib produces. And that apparently paved the way for the justices to decide the issue on narrow grounds — and limit the scope of their ruling.
“We do not recognize a blanket exemption from the ordinance for all of the plaintiffs’ business operations,” Gould wrote.
Bales, in the dissent, said he was not comforted by the narrow nature of the ruling, which he called “deeply troubling.”
“It cannot be limited to discrimination related to same-sex marriage or based on the beliefs of any one religion, but instead extends more broadly to other claims of a ‘right’ by businesses to deny services to disfavored customers,” he wrote.
The alliance, however, was not disturbed by the fact that it did not get the court to strike down the Phoenix ordinance or issue a broad injunction against its enforcement.
Scruggs said he offered the justices the alternative of saying they could limit the ruling just to wedding invitations. It was the city, he said, that sought a broader judicial approval of the ordinance.
“The court rejected that argument and ruled in favor of freedom of speech and freedom of religion,” Scruggs said. “And that, like I said, is a great win.”
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.”
Bales also faulted the majority for concluding that having the two women produce wedding invitations for same-sex couples amounted to forcing them to effectively publicly endorse such nuptials.
“Invitations to attend and celebrate a wedding are no more a ‘celebration’ on the part of the business preparing them than is the wedding cake provided by a caterer or pictures taken by a wedding photographer,” he wrote.
Gould, however, said the women are entitled to follow their religious views.
“Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some,” he wrote.
“But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive,” Gould continued. “They are for everyone.”
And that, he said, goes to the heart of the First Amendment and its guarantee that people can speak their minds and express their beliefs without government interference.
“The ordinance coerces plaintiffs into abandoning their convictions, and compels them to write celebratory messages with which they disagree, such as ‘come and celebrate the wedding of Jim and Jim,’ or ‘share in the joy of the wedding of Sarah and Jane,”’ he wrote. “The ordinance necessarily alters the content of plaintiffs’ speech by forcing them to engage in speech they would not otherwise make.”
Bales, however, said there is nothing that requires Brush & Nib to identify itself as the supplier of the invitations, or even issue a disclaimer saying the sale does not constitute an endorsement of the beliefs of the customer.