MONICA LINDSTROM

Legally Speaking: Brush and Nib ruling applies to very specific situation

Sep 16, 2019, 4:43 PM | Updated: 5:49 pm
(Facebook Photo/Brush & Nib Studio)...
(Facebook Photo/Brush & Nib Studio)
(Facebook Photo/Brush & Nib Studio)

The Arizona Supreme Court issued an eagerly anticipated ruling in Brush & Nib et al. v. City of Phoenix on Monday. It decided that a person’s deeply held religious belief overrides the need to treat all people equally, including those in same-sex marriages, at least in some cases.

The relevant facts are as follows. Plaintiffs own an art studio that sells various products, including custom wedding invitations. The owners of Brush & Nib “hold traditional Christian beliefs about marriage. They believe that ‘God created two distinct genders in His image,’ and that only a man and a woman can be joined in marriage.” They sell many products; some are manufactured elsewhere, and others are custom-made and designed by them. Due to their beliefs, they realized they would refuse to create custom-made wedding invitations for a same-sex wedding and that would put them in violation of Phoenix’s public accommodations law. As such, they decided to sue the city of Phoenix and ask the Court to rule that they had the right to refuse.

The Phoenix law is officially referred to as the Human Relations Ordinance. It basically requires businesses treat all customers equally and makes it unlawful to discriminate against customers just because that customer belongs to a certain group. In this particular case that “group” is any customers requesting custom-made wedding invitations for a same-sex wedding. “The City of Phoenix’s Ordinance … prohibits public accommodations from discriminating against persons based on their status in a “protected” group, which includes a person’s sexual orientation. Phx., Ariz., City Code (“PCC”) § 18-4(B).”

If the owners of Brush & Nib are found to have violated this law, they “face the threat of criminal prosecution, jail, fines, or closure of their business.” In other words, if they create custom wedding invitations for a wedding between a man and a woman and refuse to create them for a same-sex wedding, they could go to jail. This did not sit well with the Court and it reasoned “[B]ased on its onerous penalties, the [law] coerces Plaintiffs into abandoning their convictions, and compels them to write celebratory messages with which they disagree, such as ‘come celebrate the wedding of Jim and Jim,’ or ‘share in the joy of the wedding of Sarah and Jane.’”

This Arizona Supreme Court opinion is over 50 pages and includes long majority, concurring and dissenting opinions. I think the analysis is akin to a crash course in constitutional law.

From the beginning of the majority decision you could tell where the decision was headed. This was made fairly obvious when Justice Andrew Gould started with “[t]he rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like-minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.”

As can be expected from this opening paragraph, the court eventually holds “[T]he City of Phoenix…cannot apply its Human Relations Ordinance … to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios … to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs.”

Arizona, dare I say even America, has been waiting for a decision that gets to the heart of the matter. What wins: freedom of religion or same-sex marriage? I won’t go so far as to say that Arizona’s Supreme Court answered this completely; however, I will say it has shown its colors and actually made a decision. Not only did it make a decision, it doubled down by reviewing and explaining the many cases and concepts in our history that support its position. From compelled speech to protected speech to strict scrutiny to freedom of religion to free exercise of religion.

No matter what argument Phoenix presented, the court was not swayed and stuck to its beliefs. It explained the government “must not be allowed to force persons to express a message contrary to their deepest convictions.” With its accommodation law, and the threat of jail, the court said Phoenix is doing just that. The person is forced to choose between their deeply held religious beliefs or jail. By forcing Brush & Nib to create the custom wedding invitations, Phoenix is forcing the owners to express a message that is contrary to their beliefs.

Constitutionally this case is fascinating because it triggers both the rights of free speech and free exercise of religion, two very important rights in our nation. The court wrote that Phoenix was concerned “our decision will undermine the anti-discrimination purpose of the [public accommodation law], or that it will encourage other businesses to use free speech as a [reason] to discriminate against protected groups, [but that concern] is unwarranted. Our holding today is limited to Plaintiffs’ creation of one product: custom wedding invitations that are materially similar to the invitations contained in the record.”

Some may argue this case damages the right for same-sex individuals to marriage; however, the court attempts to make clear it does no such thing. The right for same-sex couples to marry is intact and is in no danger of being changed with this case. In fact, it explains sexual orientation is not an issue.

The court ends its majority opinion by explaining “[n]othing in our holding today allows a business to deny access to goods or services to customers based on their sexual orientation or other protected status. Here, the coercion the Ordinance places on Plaintiffs to abandon their religious belief is unmistakable. The Ordinance, as applied by the City, presents Plaintiffs with a stark choice. On one hand, they can choose to forsake their religious convictions and create wedding invitations celebrating same-sex marriage. But, on the other hand, if they choose to remain faithful to their beliefs and violate the Ordinance by refusing to make such invitations, they face severe civil and criminal sanctions.”

There is no doubt that other businesses in Arizona, and around the country, will attempt to use this case as justification to discriminate against same sex couples and marriages. I find it unlikely they will get very far. Yes, the decision is lengthy and involved, but it can really only be used in a situation that has multiple and specific qualifications – (1) a person or business, (2) would not, (3) make, (4) custom-made, (5) wedding invitations for a, (6) same-sex wedding. It would be hard to find another case that is “on point” and similar enough. That being said, it is possible this decision will result in a change to the city of Phoenix accommodations law in that an exception may be written into it.

Bottom line, #legallyspeaking, the government still cannot force you to say something you don’t want to or don’t believe, and this wins out over equality … or does it?

Monica Lindstrom

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Legally Speaking: Brush and Nib ruling applies to very specific situation