Arizona Same-Sex Wedding Opinion Touches Issues US Court Bypassed

PHOENIX, AZ — An Arizona appeals court on Thursday upheld a Phoenix law that protects lesbian, gay, bisexual and transgender people from discrimination, answering some of the constitutional questions the U.S. Supreme Court left unanswered in a ruling upholding a Colorado cake baker’s refusal to serve a gay couple.

Though rejecting them, the Arizona court addressed the First Amendment issues raised by wedding invitation designers Joanna Duka and Breanna Koski, owners of the Brush & Nib Studio and self-avowed evangelical Christians. They sued the city over the section of non-discrimination ordinance that was amended in 2013 to extend protections to LGBT individuals.

Duka and Koski argued that working for LGBT customers would be the equivalent of condoing same sex marriage, which they said was a violation of sincerely held religious beliefs that marriage is between one man and one woman.

They also wanted to publish a statement on their business website stating that because of their religious beliefs, they would only design custom artwork for heterosexual couples. When they filed the lawsuit in 2016, no gay couple had asked for their services.

The court disagreed, holding that a refusal to serve people based on sexual identity is a violation of the Phoenix ordinance. (Get Phoenix Patch's real-time news alerts and free morning news letters. Like us on Facebook. Also, download the free Patch iPhone app or free Patch Android app.)

“We recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute ‘grave and continuing harm,’ ” Presiding Judge Lawrence F. Winthrop wrote in the court opinion.

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In the Colorado cake baker ruling, the majority opinion written by Justice Anthony Kennedy emphasized the baker’s right to free speech, as artistically manifested in the cake design, but left open the possibility that the court might rule differently on a future case.

Other cases, the majority wrote, “must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.' "

In the gay wedding cake case, the court focused narrowly on procedural irregularities by the Colorado Commission on Civil Rights and did not take up the issue of whether the business had discriminated against the couple because they are gay.

The majority opinion said the civil rights commission would be correct if it ruled against any vender who refused to sell goods to LGBT customers “lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying 'no goods or services will be sold if they will be used for gay marriages' something that would impose a serious stigma on gay persons.”

Jonathan Scruggs, a lawyer with the conservative Scottsdale-based Alliance Defending Freedom that has defended wedding vendors in similar cases across the country, said in April oral arguments that writing the names of a same-sex couple on an invitation would imply endorsement of the marriage, or illegal “controlled speech,” according to a report by the Arizona Republic.

The owners of the Brush & Nib aren’t opposed to selling their product to LGBT customers, Scruggs said, but they don’t think they should be required to sell items that would be used in same-sex nuptials.

Duka and Koski aren’t opposed to selling their products to LGBT customers, but “won’t promote same-sex marriage” by designing invitations and other materials that would be used in their nuptials, Scruggs said.

At the heart of his argument is the position that the women’s actions aren’t discriminatory because it’s not based on the sexual orientation of customers, but on the message they would be asked to create.

However, Eric Fraser, who defended the city, maintains the case stems from “who is getting married — not the message.”

Duka and Koski already have the right to refuse to design invitations or other artwork that reflects positively on same-sex marriage, the same as they could reject any design they found “tacky.” What they can’t do is deny the same service to a same-sex couple that they extended to a heterosexual couple, Fraser said.

The court agreed.

“The items (Brush & Nib) would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public. Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa). This invitation would not differ in creative expression," Winthrop wrote.

Brush & Nib can publish a statement on its website stating the owners belief that marriage is between a man and a woman, but can’t include discriminatory statements, the opinion said.

Read the full opinion.

Photo via Shutterstock