Phoenix – The Arizona Supreme Court has ruled in favor of religious liberty in a case that challenged Phoenix’s nondiscrimination ordinance and how it applies to same-sex couples.
The Court found:
The 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.
With these fundamental principles in mind, today we hold that the City of Phoenix (the “City”) cannot apply its Human Relations Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib (“Plaintiffs”) have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01.
The finding was narrow in that the Court made their holding “limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance.”
Justice Gould wrote for the majority:
Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow.
Indeed, “[w]e can have intellectual individualism” and “rich cultural diversities . . . only at the price” of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641–42 (1943). This “freedom to differ is not limited to things that do not matter much . . . [t]he test of its substance is the right to differ as to things that touch the heart of the existing order.” Given this reality, the government “must not be allowed to force persons to express a message contrary to their deepest convictions.”
Rather, Plaintiffs are entitled to continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
Although this case is about freedom of speech and religion, it suits the preferred analysis of our dissenting colleagues to reframe it as one involving discriminatory conduct based on a customer’s sexual orientation. This mischaracterization reflects neither Plaintiffs’ position nor our holding. Literally none of the examples of invidious, status-based discrimination the dissent invokes, would even be remotely permitted under our holding today. Plaintiffs must, and they do, serve all customers regardless of their sexual orientation. However, by focusing solely on the anti-discrimination purpose of the Ordinance, the dissent engages in a one–sided analysis that effectively deprives Plaintiffs of their fundamental right to express their beliefs. But no law, including a public accommodations law, is immune from the protections of free speech and free exercise. Rather, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs’ right to express their beliefs about same–sex marriage by telling them what they can and cannot say. And to justify this action, both the City and the primary dissent claim that if we dare to allow Plaintiffs to express their beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the Old South.
But casting Plaintiffs’ free speech and exercise rights in such a cynical light does grave harm to a society. As Justice Jackson observed in Barnette, “[s]truggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men,” but, inevitably “those bent on its accomplishment must resort to an ever-increasing severity.” Barnette, 319 U.S. at 640. We would be wise to heed his warning about government efforts to compel uniformity of beliefs and ideas:
[a]s governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . . Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
The case involved a challenge of a City of Phoenix ordinance that forces the studio’s two owners to use their artistic talents to promote same-sex ceremonies.
Brush & Nib Studio owners Joanna Duka and Breanna Koski specialize in creating custom artwork using hand painting, hand lettering, and calligraphy to celebrate weddings and other events.
The two women, represented by Alliance Defending Freedom challenged how Phoenix interpreted its ordinance, City Code Section 18-4(B). They claimed the Ordinance was interpreted in a way that forces them to use their artistic talents to celebrate and promote same-sex marriage in violation of their beliefs, even when they decide what art they create based on the art’s message, not the requester’s personal characteristics.
The ordinance also forbids Duka and Koski from publicly communicating what custom artwork they can and cannot create consistent with their faith. The law threatens up to six months in jail, $2,500 in fines, and three years of probation for each day that there is a violation.
Specifically, the City of Phoenix ordinance forbade advertisements or other notices that say business from certain groups or people “would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”
The artists and their attorney argued in their civil liberties lawsuit, that Phoenix interprets its law in a way that illegally controls artistic expression and disregards religious liberty thereby violating the freedom of Duka and Koski to choose which messages they will convey and refrain from conveying consistent with their beliefs.
According to the artists, their religious convictions guide them in determining which messages they can and cannot promote through their custom artwork.
Phoenix Mayor Kate Gallego downplayed the ruling. “After today’s narrow ruling by the Arizona Supreme Court, the city of Phoenix’s non-discrimination ordinance still stands. The decision strictly applies to this single business and a single product within the business,” Gallego said in a press release.
“LGBTQ Phoenicians are our colleagues, neighbors, friends and family – each seeking to live up to their greatest potential – but face additional challenges for the promise of equality. LGBTQ Phoenicians are more likely to experience bullying, harassment and victimization. Residents have described these experiences to me first-hand. In light of this, my dedication and the city of Phoenix’s commitment to enacting non-discriminatory laws and practices, offering equal benefits and protections to all, and ensuring all residents are included in city services and programs has never been stronger,” concluded Gallego.
“This is an important victory for religious freedom and freedom of speech. And we are grateful for all your prayers and support during the last few years as this case made its way through the courts. Now, we must keep this momentum going because these challenges to freedom continue,” wrote sarah Kramer for Alliance defending Freedom. ”
ADF remains committed to working toward a day when all people are free to peacefully live out their beliefs without fear of government punishment.