First Amendment religious freedom is a shield against governmental infringement. But right-wing lawyers from the Alliance Defending Freedom have transformed First Amendment religious freedom jurisprudence into a sword in order to infringe upon the rights of individuals who do not share their religious views, i.e., evangelical Christian fundamentalism.
The Arizona Supreme Court ruled (.pdf) today in a 4-3 decision that the City of Phoenix cannot require “devout Christian” owners of a printing business to create wedding invitations for same-sex couples as they do for opposite-sex couples.
Justice Gould writing for the majority wrote:
The rights of free speech and free exercise, 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. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.
With these fundamental principles in mind, today we hold that the City of Phoenix (the “City”) cannot apply its Human Relations Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib (“Plaintiffs”) have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01.
Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record. See Appendix 1. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance. See Appendix 2.
The majority opinion is dismissive of the dissenters, and engages in legal sophistry:
Although this case is about freedom of speech and religion, it suits the preferred analysis of our dissenting colleagues to reframe it as one involving discriminatory conduct based on a customer’s sexual orientation. This mischaracterization reflects neither Plaintiffs’ position nor our holding. Literally none of the examples of invidious, status-based discrimination the dissent invokes, see infra ¶ 217-18, would even be remotely permitted under our holding today. Plaintiffs must, and they do, serve all customers regardless of their sexual orientation. However, by focusing solely on the anti-discrimination purpose of the Ordinance, the dissent engages in a one–sided analysis that effectively deprives Plaintiffs of their fundamental right to express their beliefs. But no law, including a public accommodations law, is immune from the protections of free speech and free exercise. Rather, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U.S. at 642.
While the majority claims its holding today is narrowly limited to this particular business refusing to prepare wedding invitations for same-sex couples, it has, in fact, opened the door to future lawsuits from the Alliance Defending Freedom, whose purpose is Christian Reconstructionism and Dominionism.
This is a full employment guarantee for their religious extremist lawyers for the foreseeable future. The Alliance’s goal is to carve out a “freedom to discriminate” card for religious bigots who want to deny public access and services to anyone whom their own “deeply held personal religious beliefs” leads them to discriminate against, e.g., the LGBTQ community in this case.
The dissenters are correct that this is a slippery slope that will readily lead to discrimination against anyone who is not a white evangelical Christian fundamentalist. What the Alliance Defending Freedom really wants is an exemption for certain Christians from having to comply with the laws that everyone else who is not a religious bigot must comply.
Justice Bales writing for the dissenters wrote:
Our 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. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.
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Our analysis should begin by recognizing how this case implicates the compelling interest in preventing discrimination in public accommodations. “[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent . . . .” Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984); see also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987); Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983).
As relevant here, the Phoenix Ordinance (“Ordinance”) provides that a public accommodation may not refuse service “because of . . . sexual orientation.” Phx., Ariz., City Code (“PCC”) § 18-4(B)(2). Brush & Nib offers goods and services to the general public and, as it concedes, is a public accommodation. Thus, the Ordinance requires Brush & Nib to “perform the same services for a same-sex couple as it would for an opposite-sex couple.” Elane Photography, LLC v. Willock, 309 P.3d 53, 66 ¶ 35 (N.M. 2013).
The Ordinance is content neutral and does not purport to regulate speech, but rather conduct. And the United States Supreme Court has stated that public accommodations laws “are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 571–72 (1995).
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This case does not concern the content of the made-to-order wedding products, but instead the identity of the customer and end user. Such a refusal constitutes discrimination based on sexual orientation. This fact is not altered by Plaintiffs’ assertion that they want to refuse to provide custom wedding products for a same-sex wedding whether the marrying couple or someone else buys them. Refusing to sell to the latter—for example, a parent—does not make it any less discriminatory for the business to refuse to sell to the couple, and because the refusal is based on the marriage involving a same-sex couple, it is based on sexual orientation. See PCC § 18-4(B) (prohibiting both directly and indirectly refusing accommodations based on sexual orientation).
Unfortunately, the majority sanctions discrimination in this manner, concluding that Brush & Nib can refuse to prepare custom wedding invitations for Jordan and Alexis who share the same sex even though it would sell identical invitations to an opposite-sex couple with the same names. Moreover, although the majority limits its holding to wedding invitations like the exemplars in the record, supra ¶¶ 38, 112, the majority leaves open the prospect that vendors can otherwise refuse to prepare custom wedding items that “celebrate” a same-sex wedding. Supra ¶ 160. Today’s decision is also deeply troubling because its reasoning 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.
Exactly. The Alliance Defending Freedom tends to bring lawsuits on behalf of evangelical Christian fundamentalists. But what if the reasoning of today’s opinion was used by other religions to discriminate against said same Christians? Would the Arizona Supreme Court have ruled the same if, arguendo, a Jewish fundamentalist owner of a print shop refused to prepare wedding invitations for anyone not a member of the Jewish faith? Or how about a Muslim? A Buddhist? A Hindu? When a Christian customer sued the business under the Phoenix ordinance, does anyone seriously believe that this court would not have upheld the anti-discrimination ordinance without resorting to First Amendment free speech analysis?
The dissenters point out how the majority had to overreach in arriving at their opinion:
Arizona’s free speech clause does not entitle Brush & Nib or its owners to refuse to provide goods and services for same-sex couples that it otherwise provides to opposite-sex couples.
As an initial matter, because the majority has decided the case on statutory grounds, it should not reach the constitutional issue—a point we have repeatedly emphasized. See Stanwitz v. Reagan, 245 Ariz. 344, 348 ¶ 12 (2018); State v. Gomez, 212 Ariz. 55, 61 ¶ 31 (2006). Exercising such restraint is especially appropriate here, where the analysis of the free speech claim in no way depends on the statutory claim under FERA.
This is judicial activism by the majority, pure and simple, for the benefit of the Alliance Defending Freedom. This opinion will now be relied upon by the Alliance in cases around the country, as they attempt to get one of these cases before the U.S. Supreme Court.
This case was a simple a non-discrimination statute case, not a constitutional free speech or religious freedom case. The majority’s opinion is legal sophistry, as the dissent argues:
The majority’s analysis turns on labeling the conduct at issue “pure speech,” but this legal formalism harbors two pernicious ideas: one is that a vendor’s refusal to sell to certain customers is itself protected expression, the other is that the public interest in preventing discrimination does not suffice to require a vendor to serve all equally if the items sold involve expression by the vendor. One would think—indeed fervently hope—that we are long past the notion that businesses operating as public accommodations have a “right” to tell certain customers that they do not serve their kind and so they should take their patronage elsewhere. Although the majority baldly asserts that its holding will not allow “invidious, status-based discrimination,” supra ¶ 6, its reasoning suggests that any business offering made-to-order goods and services with expressive content—an open universe that includes printing, painting, tattoos, videography, and other “art” broadly defined—can selectively refuse to sell to groups of customers whom the business disfavors. Free speech jurisprudence does not dictate such a result, nor the result in this case.
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This case is not about the government compelling individuals to create art or pure speech expressing a message with which they disagree. Instead, it involves a business, undisputedly a public accommodation, whose owners wish to deny the same goods and services for a same-sex wedding that they would provide for an opposite-sex wedding. Barring those who choose to offer goods and services to the public from discriminating does not impermissibly compel speech. A vendor may no doubt engage in a form of expression by refusing to sell things to customers it disfavors. But expression through such discriminatory conduct, even if motivated by sincerely held religious beliefs, is not legally protected.
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This case, sadly, illustrates that our progress toward equality has been tortuous and incomplete. Despite today’s mistaken holding, our constitutions and laws should not entitle a business to discriminatorily refuse to provide goods or services to customers whom the business disfavors.
Someday in the future, this well-reasoned dissent will become the basis of a majority opinion overturning today’s wrongly decided decision in Brush & Nib et al. v. City of Phoenix.
In the meantime, Arizonans must deal with the politicization of our courts by Republicans by using the ballot to vote against retention of these judges when they come up for retention on the ballot. There must be a price paid for their judicial activism.