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Civil Rights

Sep. 27, 2019

Religion is not a license to discriminate anywhere

In a 4-3 decision, and after many months of deliberation, the Arizona Supreme Court issued a narrow ruling on Sept. 16 in Brush & Nib v. City of Phoenix. The deeply divided court held that one business, Brush & Nib, can refuse to make one type of product — custom wedding invitations for same-sex couples.

Molly Brigzy

Senior Staff Attorney, ACLU of Arizona

In a 4-3 decision, and after many months of deliberation, the Arizona Supreme Court issued a narrow ruling on Sept. 16 in Brush & Nib v. City of Phoenix. The deeply divided court held that one business, Brush & Nib, can refuse to make one type of product -- custom wedding invitations for same-sex couples.

The case began in 2016 when the owners of a Phoenix-based calligraphy business, Brush & Nib, sued the city of Phoenix arguing that they could not be forced to produce custom wedding invitations for same-sex couples, despite operating as a business within Phoenix's nondiscrimination ordinance. The ordinance was enacted in 1964 and expanded in 2013. It prevents businesses from discriminating against people due to the individual's race, religion, national origin, sex, sexual orientation, gender identity or expression, or disability.

Following losses in Arizona's lower courts, Brush & Nib took their case to the Arizona Supreme Court. While the court ruled that Brush & Nib can refuse to make only one product, the decision's impact was to the detriment of LGBTQ people, women, disabled, people of color, and others belonging to marginalized communities.

The ACLU of Arizona joined dozens of other groups and businesses in filing a friend-of-the-court brief in support of the city of Phoenix's nondiscrimination ordinance. The court held that it was the "artistic expression" of the wedding invitations that classified it as the most protected kind of speech and therefore was entitled to the greatest protection under the law. However, just because a business makes artistic or creative choices does not insulate them from public accommodations laws when they offer goods and services for hire to the general public.

The Phoenix ordinance regulates conduct. It has nothing to do with speech and therefore, the speech in question in this case -- writing in the wedding details on the invitation -- is plainly incidental to regulating the conduct. The decision departed from settled precedent and advocates across the nation hope that the court's limitation to the particular facts of this specific case remains that -- limiting. Free speech is a hallowed right under our national and state constitutions. Businesses and their owners have a right to express themselves, but that freedom doesn't give businesses open to the public the right to refuse to serve certain customers simply because of who they are.

In 1999, the Arizona Legislature passed the Free Exercise of Religion Act "to protect Arizona citizens' right to exercise their religious beliefs free from undue governmental interference." The statute aims to balance religious liberty with the needs of government in a pluralistic society. While a religious exemption was upheld by the court in this case, it was once again narrow and specific. As the court noted, when claiming an exemption under FERA, an owner would have to prove that (1) their religious belief is sincere, (2) the government's action substantially burdens the person's exercise of religion, and (3) the government's action is not the least restrictive way of accomplishing that objective. The court was clear that this statute cannot be simply a pretext for engaging in illegal discrimination based on a person's characteristics, such as sexual orientation. Freedom of religion is deeply important. We all have a right to our beliefs, but religious freedom doesn't give anyone the right to hurt other people, to impose our beliefs on others, or to discriminate.

If this type of reasoning is left unchecked by the courts, there is the potential for this exception to swallow up the ordinance's general rule that businesses are open to all. As Justice Scott Bales wrote in his powerful dissent, "The goal of equal access cannot be achieved by allowing ad hoc exemptions for businesses based on their owners' beliefs, even if they are sincerely held."

One of the most problematic aspects of the case is the court's distinction based on message versus status; finding that it was the compelled words of the wedding invitation for a same-sex couple (Jim and Joe vs. Jim and Josephine) that was objectionable and therefore it was not discrimination based on the customer's sexual orientation. This kind of reasoning rings hollow for those who have suffered discrimination in the public square -- it is a legal fiction because it has no basis in the way society works. Anyone who has been discriminated against knows that it doesn't matter what technical reason the discriminator gives ("it's not you, it's the message"), the result is the same -- it's an affront to human dignity, and a painful and alienating experience.

The court took great pains to insist that its decision was narrow and although true, it's sets a dangerous precedent. The way our common law system works means that case law builds upon case law and lower courts follow the higher courts in order to create legal doctrine. This case creates the blueprint for the cases that may follow, regardless of the specific facts. Though Phoenix's ordinance was upheld, and the court's analysis of the free speech and free exercise claims were narrow, misconceptions can abound, often to the detriment of marginalized people.

However, this case is bigger than two business owners who asked for permission to refuse to produce a wedding invitation. Phoenix's powerful and inclusive non-discrimination ordinance sent a resounding message that in Phoenix, business is open for all, no matter who you love, the color of your skin or who you worship. This ordinance built upon decades of civil rights advocacy which continues to ensure equal treatment of all people -- this ruling does not change that.

Arizona should reject efforts to legalize discrimination and ensure that no one face the humiliation and shame of being turned away from a business because of who they are. 


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