Artists Don’t Have to Make Same-Sex Wedding Invitations, Arizona High Court Rules

A same-sex couple wedding cake topper. (Photo courtesy Wikipedia Commons)

PHOENIX (CN) – The city of Phoenix can’t force a local calligraphy business to make custom wedding invitations for same-sex couples, the Arizona Supreme Court ruled Monday.

But Brush & Nib Studio, owned by evangelical Christian plaintiffs Breanna Koski and Joanna Duka who sued Phoenix for the right to refuse the invitations, can’t simply turn away any customer based on sexual orientation or other protected status, the ruling states.

Jonathan Scruggs, an attorney for the Alliance Defending Freedom who represented the women, said the pair is relieved the city can no longer enforce the law.

“Joanna and Breanna will now be able to create custom wedding invitations and to communicate about their beliefs without fear of government punishment, as any artist should be free to do,” Scruggs said in a news release. “This isn’t just a victory for them. It’s a victory for everyone.”

But the city will continue to enforce the law, spokesperson Julie Waters said in an emailed statement.

“The city of Phoenix’s anti-discrimination ordinance is still a legal, valid law and remains in effect,” Watters said. “The Arizona Supreme Court made a very narrow ruling that one local business has the right to refuse to make custom wedding invitations for same-sex couples’ weddings that are similar to the designer’s previous products. This ruling does not apply to any other business in Phoenix.”

Duka and Koski, both artists, met in Bible study and quickly decided to join forces in the shop, which they operate from Koski’s home. God orchestrated it, Breanna says in a video on the shop’s website, and the women decided to make their faith a vein running through much of their work.

The Phoenix anti-discrimination ordinance says service cannot be denied to anyone in a legally protected class, including sexual orientation. Violations are punishable by up to a $2,500 fine, six months in jail and three years’ probation for each day of violation. The ordinance also prevents businesses from posting or advertising that they will refuse such service.

The City Council adopted the current anti-discrimination ordinance in 2013 to stop discrimination against LGBT residents by privately owned businesses, although Watters points out that the city has had some form of the law since 1964.

Brush & Nib has not been charged under the ordinance but filed the lawsuit in 2016 to protect against future prosecution. Although the women’s views might be unpleasant to some, they must be protected, the majority ruled.

“Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some,” Justice Andrew Gould wrote for the majority. “But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.”

The majority admonished the dissenting justices, who deemed the shop’s stance discrimination based on gender orientation, as a mischaracterization. None of the examples listed by the dissent would be allowed under this ruling, Gould wrote.

“Plaintiffs stress that they will create custom artwork for, and sell pre-made artwork to, any customers regardless of their sexual orientation,” the ruling states. “However, they believe that creating a custom wedding invitation that conveys a message celebrating same-sex marriage, for any customer regardless of sexual orientation, violates their sincerely held religious convictions.”

In his dissent, Justice Scott Bales points out that the case isn’t about the content of the invitations at all, because none exist. It’s about the sexual orientation of the customers, not speech, he wrote.

“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,” Bales said. “This case, sadly, illustrates that our progress toward equality has been tortuous and incomplete.’

Arizona Court of Appeals Judge Christopher Staring, sitting by designation after Chief Justice Robert Brutinel recused himself, said lower courts will struggle to limit the case to “materially similar” products.

“Is there, for example, a meaningful difference between drawings and lettering on cardstock and the same drawings and lettering on a cake? Our state’s lower courts – one of which I sit on – will struggle with limiting today’s holding when confronted with circumstances that are not meaningfully distinct,” Staring wrote. “This case will sweep much more broadly than the majority expresses.”

Justices Gould, Clint Bolick, John R. Lopez IV and John Pelander made up the majority. Bales and Staring were joined by Justice Ann A. Scott Timmer in the dissent.


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