AG Speaks Out Against Phoenix Anti-Discrimination Ordinance

By Claire Caulfield
Howard Fischer, Capitol Media Services
Published: Thursday, December 27, 2018 - 9:13am
Updated: Thursday, December 27, 2018 - 9:40am
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Arizona's chief prosecutor is urging the state's high court to block Phoenix from enforcing its anti-discrimination ordinance against two women who refuse to craft wedding materials for same-sex nuptials.

In a legal brief filed with the state Supreme Court, Attorney General Mark Brnovich argues that Arizona and a handful of other states who have signed on with him "have compelling interests in protecting their citizens' freedoms of speech and religion secured by the United States Constitution, as well as by their individual state constitutions.''

Conversely, Brnovich says that siding with Phoenix in the legal fight amounts to "coercing artists to use their talents to create government-sponsored messages.''

"It forces petitioners to create art that expresses the message that particular unions are marriages, despite their sincerely held religious beliefs that such union are not marriages and are antithetical to God's design for marriage,'' he said.

How much weight the justices will give to Brnovich's legal arguments remains to be seen. But the importance of the ruling is underlined by the fact that the case has drawn "friend of the court'' briefs from groups as diverse as the Southern Baptist Convention and the Jewish Coalition for Religious Liberty on behalf of the artists and against Phoenix, to the Anti-Defamation League and the Hindu American Foundation urging the high court to uphold the ordinance.

But Brnovich, in his brief, said he is acting on behalf of the state — and, by extension, its residents.

A hearing is set for Jan. 22.

Wide-Reaching Effects

What the justices decide will affect more than the Phoenix ordinance. Several communities including Tucson, Tempe and Flagstaff have similar restrictions against discrimination based on sexual orientation that could be curtailed or overruled.

The ordinance makes it illegal to discriminate in providing goods or services at places of public accommodation based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression or disability. It also forbids advertisements or other notices which say that business from certain protection groups "would be unwelcome, objectionable, unacceptable, undesirable or not solicited.''

No one had actually complained about Joanna Duka and Breanna Koski who own Brush & Nib Studio and who prepare both custom and pre-printed wedding invitations, place cards and other materials.

Instead, the women, who say they are "devout Christians'' who believe the only legitimate marriage is between one man and one woman, filed a peremptory lawsuit asking the courts to rule they have a right to refuse to create the same kind of custom designs for same-sex couples as they routinely do for heterosexual couples.

A trial judge rebuffed their efforts, a decision upheld earlier this year by the state Court of Appeals.

Appellate Judge Lawrence Winthrop rejected their claim that the ordinance violates their constitutional and religious rights. He said it regulates conduct, not their beliefs.

"If appellants, as an economic entity, want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation,'' he wrote for the court.

The Nature Of Art

Brnovich, however, said the problem here is that the business at issue is an original art creation.

He said the First Amendment protects individuals from having to say something they do not believe. Brnovich also argues that that art is a "classic example of pure speech.''

"And pure speech cannot be made a public accommodation,'' he said, and subject to anti-discrimination laws.

Winthrop, in the appellate court ruling, said nothing in the Phoenix ordinance bars the women from expressing their personal beliefs that their religion recognizes only the marriage of opposite-sex couples. And he said they are free to refuse to create wedding-related merchandise for same-sex couples — as long as they do not provide the same service for opposite-sex couples.

"What appellants cannot do is use their religion as a shield to discriminate against potential customers,'' the judge wrote.

Brnovich derided that logic, pointing to the fact that violations of the ordinance carry a penalty of six months in jail and a $2,500 fine.

"It effectively forces such artists to choose between practicing their religion and earning a living in their chosen trade,'' the attorney general wrote, saying that runs afoul of state constitutional provisions for "perfect toleration'' of religious freedom. He said it compels the women "to create pure speech they prefer not to create.''

"It also forces them to participate in the recognition and celebration of a wedding — a ceremony long held sacred to those who live by their religions and with transcendent importance in the annals of human history,'' Brnovich said.

But Winthrop said there is little chance that anyone will see the pair's creations as an endorsement of same-sex marriages.

He said that the kinds of items the women would produce for gay couples would be "indistinguishable'' from those produced for opposite-sex couples. Winthrop said that means an invitation for the marriage of "Pat and Pat'' could equally be for Patrick and Patrick or Patrick and Patricia.

In his legal brief, Brovich takes no position on the broader question of whether cities can bar discrimination based on sexual orientation, focusing solely on whether such ordinances can cover artistic expression.

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