Court Won’t Temporarily Suspend Phoenix Ordinance, Artists May Appeal

An Arizona judge refused on Monday to temporarily suspend enforcement of a Phoenix ordinance against two artists who are challenging it in Brush & Nib Studio v. City of Phoenix. The ordinance forces the studio’s two young female owners to use their artistic talents to promote same-sex ceremonies.

The ordinance also forbids them from publicly expressing the Christian beliefs they believe prevents them from doing so and that require them to create art celebrating only marriages between one man and one woman.

Joanna Duka and Breanna Koski, two young Christian women who own the Brush & Nib studio, filed the lawsuit back in May to overturn Phoenix’s public accommodations law in case they are asked to make invitations or similar products for a gay wedding, which they oppose based on their Christian beliefs.

The lawsuit is known as a “pre-enforcement challenge,” a lawsuit that allows citizens to challenge a law — in this case, a law that the artists believe threatens their First Amendment freedoms — before the government enforces it against them. Organizations such as the American Civil Liberties Union and Planned Parenthood routinely file such lawsuits against laws they oppose.

“Artists shouldn’t be threatened with jail time and other penalties simply for making art that is consistent with their beliefs. That’s why we asked the court to suspend enforcement of the Phoenix ordinance against our clients while their case goes forward. Because the city must allow artists the freedom to make personal decisions about what art they will and will not create, and because the ordinance’s additional requirement that artists stay quiet about their views is clearly unjust and unlawful, we will consult with our clients about appealing the court’s decision,” stated Alliance Defending Freedom Legal Counsel Jonathan Scruggs.

The judge also refused to grant the city’s motion to dismiss the case.

The Phoenix City Ordinance reads:

Phoenix City Code §18-4(B) prohibits public accommodations from discriminating against persons based on sexual orientation. Specifically, §18-4(B) provides in pertinent part:

1. Discrimination in places of public accommodation against any person because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability is contrary to the policy of the City of Phoenix and shall be deemed unlawful.

2. No person shall, directly or indirectly, refuse, withhold from, or deny to any person, or aid in or incite such refusal, denial or withholding of, accommodations, advantages, facilities or privileges thereof because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability nor shall distinction be made with respect to any person based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability in connection with the price or quality of any item, goods or services offered by or at any place of public accommodation.

3. It is unlawful for any owner, operator, lessee, manager, agent or employee of any place of public accommodation to directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability or that any person, because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability would be unwelcome, objectionable, unacceptable, undesirable or not solicited.

A “place of public accommodation” is defined as including “all establishments offering their services, facilities or goods to or soliciting patronage from the members of the general public.” Phoenix City Code §18-3. Plaintiff Brush & Nib Studio, LC is a place of public accommodation as defined by this ordinance because it offers services and goods for sale to members of the general public. An exemption exists under the ordinance for bona fide religious organizations, Phoenix City Code §18-4(B)(4), however the parties and the Court agree that this exemption does not apply to Plaintiffs’ business. A violation of the foregoing ordinance constitutes a Class 1 Misdemeanor. Phoenix City Code §18-7(A).

Judge Mullins found, “The City ordinance does not require Plaintiffs to say anything, and Plaintiffs remain free under the ordinance to express their views of same-sex marriage and same-sex sexual activity. The ordinance only precludes Plaintiffs from refusing to sell products or provide services to same-sex couples and from stating that same-sex couples are unwelcome as customers. The selling of wedding invitations here is the equivalent of allowing the military access to a college campus in Rumsfield; it is an act devoid of expression.”

In the Rumsfield case, “the United States Supreme Court clarified the difference between regulating conduct and regulating free speech. In that case, a statute required colleges to allow military recruiters on their campuses to the same extent other recruiters were allowed, or risk a loss of federal funding,” wrote the judge. “The plaintiff law school alleged that by forcing it to allow the military recruiters on campus, it was being compelled to express the views of the military recruiters even though it disagreed with those views. The Supreme Court disagreed that the act of allowing the military recruiters on campus was “expressive.”

Mullins found that a “party who raises a religious exercise claim or defense under FERA must establish three elements: (1) that an action or refusal to act is motivated by a religious belief, (2) that the religious belief is sincerely held, and (3) that the governmental action substantially burdens the exercise of religious beliefs….. Once the claimant establishes a religious belief that is sincerely held and substantially burdened, the burden shifts to the state to demonstrate that its action furthers a “compelling governmental interest” and is “[t]he least restrictive means of furthering that compelling governmental interest.”

“The Free Exercise Clause recognizes the right of every person to choose among types of religious observance free of government compulsion,” comtinued Mullins. “To establish a violation of the clause, a litigant must show that the challenged government action has a coercive effect that operates against the litigant’s practice of his or her religion…. The case here, however, does not involve religious activity as contemplated by the Free Exercise Clause. Thus the Court need not examine whether the asserted state interest justifies the “burden” imposed, because the Plaintiffs in this case have failed to assert even an incidental burden on the exercise of their religion.”

Judge Mullin concluded, “Plaintiffs are not likely to succeed on the merits given that the Phoenix ordinance does not violate Plaintiffs’ right to free speech and does not impose a substantial burden on their exercise of religion. The possibility of irreparable injury is quite small, at best, given that Plaintiffs are free to express their beliefs on their business website and may practice their religious beliefs without substantial burden. The balance of hardships favors Defendant City, given the government’s interest in allowing its citizens to enjoy public accommodations free of discrimination based on sexual orientation. Finally, the public policy underlying anti-discrimination laws for sexual orientation runs contrary to the requested injunction. Thus, the Court declines to grant Plaintiffs the preliminary injunction requested in this case.”

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