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Sunday, October 20, 2019

Design studio can't be forced to make invitations for same-sex wedding, court rules

State Supreme Court

By Charmaine Little | Sep 26, 2019

PHOENIX, Ariz. (Legal Newsline) – Arizona's highest court has ruled that a Christian-owned design studio’s custom-made invitations are a form of free speech and the city of Phoenix cannot force it to create invitations for same-sex weddings.

The Arizona Supreme Court made the ruling Sept. 16 in Brush & Nib Studio LC v. the city of Phoenix.

“We hold that the city of Phoenix cannot apply its Human Rights Ordinance to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios LC, to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs," Justice Andrew Gould wrote.

Still, Gould made clear that the ruling only concerns the making of custom wedding invitations, not for all of the services that the studio offers.

Gould noted that while the plaintiffs' beliefs could seem traditional and offensive, they're still protected via free speech and freedom of religion. The justice noted that the plaintiffs serve all customers, no matter their sexual orientation. But when it comes to the custom-made invitations, they have the right to refuse service.

“The First Amendment does not protect all of the plaintiffs’ business activities or products simply because they operate Brush & Nib as an ‘art studio,’” the ruling states. “However, plaintiffs’ custom wedding invitations and the process of creating them are protected by the First Amendment because they are pure speech.”

The city argued that each invitation includes some type of wedding information or detail, so it’s not custom-made. But the Supreme Court pointed out that each invitation also features unique calligraphy and designs along with a special message about each ceremony.

The Supreme Court also disagreed with the city’s argument that the invitations aren’t a form of free speech but are rather commercial activity since they are sold for a profit; and that Brush & Nib is considered a public accommodation, so its free speech rights have to submit to the ordinance. 

“Public accommodation laws are not immune to the First Amendment,” Gould wrote.

The city also argued that other jurisdictions have backed enforcement for the ordinance. But the Supreme Court disagreed with that argument as well and said it was “unpersuasive” at best.

Along with being a form of free speech, the plaintiffs also said their decision to not create invitations for same-sex couples are also protected under Arizona's Free Exercise of Religion Act (FERA). The Supreme Court agreed. For starters, all agree that the plaintiffs’ “refusal to act” is based on their religious standard that marriage is between a man and a woman and that they sincerely believe that.

"The city has not carried its heavy burden," Gould wrote. "Applying the ordinance to regulate Duka and Koski’s personal expression of their religious beliefs in their custom wedding invitations is not the least restrictive means to accomplish the goal of the ordinance. Rather, as we have noted above, the purpose of the ordinance is properly served by permitting a narrow exemption for plaintiff’s creation of the single product we consider in this case – plaintiff’s custom wedding invitations.”

While the plaintiffs haven’t received a citation from the city in regard to the ordinance, they filed the lawsuit with a lower court in hopes of preventing the city from attempting to enforce the ordinance in the future. While the city filed a motion to dismiss on the argument that the plaintiffs' lack standing, that was denied and led to the appeal.

Justices Clint Bolick, John Lopez IV and John Pelander (retired) jointed. Bolick filed a concurring opinion and Justice Scott Bales (retired), joined by Vice Chief Justice Ann Timmer and Judge Christopher Staring, dissented. Timmer and Staring also filed separate dissents. 

Bolick noted separate concurring opinion that a universal thought to the rights of free speech is present.

“If Michelangelo were alive, the city would require that he sell his sculptures free from discrimination but could not compel him to paint a chapel ceiling in a way he deemed blasphemous," Bolick wrote.

But not everyone agreed.

Bales said it’s unfair for a company to sell products to all customers but refuse to make invitations for same-sex couples. The dissenting justice said the Constitution does not permit a business to discriminate against customers for living a lifestyle they disagree with.

In his own dissent, Timmer stated that Arizona’s free speech provision nor FERA offers an exception for the ordinance in question. 

“Although I agree wholeheartedly with Justice Bales’ dissent, the alarming consequences of today’s decision spur me to emphasize some points,” he wrote. 

One of those points was noting that the substantial burden for the exercise of religion via FERA is a legal question, not a factual one. He also said the plaintiffs have failed to show the ordinance “substantially burdens the exercise of their religious beliefs.”

Staring said in his dissent that this ruling could start a ripple effect on discrimination against same-sex couples due to religious beliefs.

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