Days after the U.S. Supreme Court ruled in favor of a Colorado baker who refused service to same-sex couples, an Arizona court has upheld a Phoenix anti-discrimination ordinance preventing a wedding invitation business from similarly discriminating against same-sex couples.
The Arizona Court of Appeals ruled Thursday against Brush & Nib Studio, a company selling artwork for home decor, weddings and special events. The owners, who are devout Christians, would like to legally refuse to create custom merchandise for same-sex weddings and post a public statement saying that “Brush & Nib Studio won’t create any artwork that violates [their] vision as defined by [their]religious and artistic beliefs and identity.” They have not yet refused any services to same-sex couples in practice, the ruling noted.
Brush & Nib’s discrimination would violate Phoenix’s public accommodation anti-discrimination ordinance, the court ruled, which prohibits discrimination on the basis of sexual orientation and gender identity. Though the state of Arizona has a public accommodation anti-discrimination law, it does not include sexual orientation, the ruling noted.
“Simply stated, if Appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,” Judge Lawrence F. Winthrop wrote in the ruling.
The court noted that it was “unpersuaded” by the business owners’ argument that their discrimination is a lawful exercise of their First Amendment rights to freedom of speech and religion. Though the studio has the right to post a statement clarifying their own personal beliefs and noting that their services to same-sex couples do not constitute an endorsement of their marriage or other activities, the court ruled they cannot prohibit services to same-sex couples.
“The operation of a stationery store — including the design and sale of customized wedding event merchandise — is not expressive conduct, and thus, is not entitled to First Amendment free speech protections,” the ruling noted, adding that the case is “one of a blanket refusal of service to the LGBTQ community and not a First Amendment challenge to a specific message requested by a specific customer.”
Alliance Defending Freedom, the organization representing the Brush & Nib owners, said in a statement that they would appeal the court’s decision.
“Artists shouldn’t be forced under threat of fines and jail time to create artwork contrary to their core convictions,” Alliance Defending Freedom senior counsel Jonathan Scruggs said in a statement. “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.”
The Arizona ruling comes just a few days after the Supreme Court ruled in Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of the business’ ability to discriminate. The case had attracted nationwide attention, sparking fears that a ruling in Masterpiece’s favor would be used to challenge anti-discrimination laws nationwide in the name of “religious liberty.” Americans remain largely opposed to business’ decisions to refuse service to LGBTQ customers on the basis of religion; according to a 2017 study by the Public Religion Research Institute, 60% of Americans nationwide oppose such discrimination, including 59% of residents in Arizona and Colorado.
The Supreme Court’s ruling, however, was narrowly defined to apply solely to the specific circumstances of the Colorado case. The ruling was particularly directed toward the Colorado Civil Rights Commission’s “hostile” behavior toward Masterpiece Cakeshop owner Jack Phillips in judging the case, with Justice Anthony Kennedy noting that the “commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”
In a concurring opinion on the ruling, Justice Elena Kagan stressed that the ruling did not address the question of public accommodation laws more generally, writing: “As this court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex or other protected trait.”
Indeed, Justice Kennedy specified that because the Colorado case “concerned a context that may well be different going forward in the respects,” “the outcome of cases like this in other circumstances must await further elaboration in the courts.”
Thursday’s Arizona ruling demonstrated how the Supreme Court’s narrow decision still allows public accommodation laws that specifically bar LGBTQ discrimination to be upheld. The Arizona court applied the Masterpiece ruling in their own decision and quoted Kennedy’s opinion, which noted that “while those religious and philosophical objections [to gay marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Citing the Masterpiece decision, as well as other previous court cases concerning public accommodations laws and Supreme Court cases centered on LGBTQ rights, Winthrop wrote in the ruling: “In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm.’”