Human rights and religious freedom are at odds in another court case. In a narrow Sept. 16 vote, the Arizona Supreme Court allowed for an exemption of Phoenix’s human rights ordinance that will allow wedding businesses to refuse services to same-sex couples.
The 4–3 vote in Brush & Nib v. Phoenix determined that a wedding invitation business, Brush & Nib Studio, may deny service to a same-sex couple. No same-sex couple had asked Brush & Nib to make invitations for them, but the anti-LGBTQ law firm Alliance Defending Freedom (ADF) filed a suit on behalf of the company’s owners, who are anti-gay Christians. The owners were afraid the human rights ordinance would force them to serve gay couples.
Brush & Nib and ADF’s argument centered upon the Arizona Constitutions free speech clause and Arizona’s Free Exercise of Religion Act (FERA). The Arizona Court of Appeals unanimously rejected the ADF’s arguments, but at the state Supreme Court level, ADF won.
Republican Governor Doug Ducey had recently appointed more conservative justices to the court, rigging the nomination process to ensure more Republican justices were approved. He added two new seats to the court to increase the right lean and replaced several Democrats on the nominating commission with “independents” with ties to the Republican Party. Now there are no Democrats on the commission. One of the members, Maricopa County Attorney Bill Montgomery, is deeply against LGBTQ rights and has repeatedly sparked controversy through his comments and rulings in support of the death penalty, the drug war and mass incarceration.
The U.S. Supreme Court has refused to take an umbrella stance involving the discordance between the First Amendment and civil rights, as evidenced by their 2018 Masterpiece Cakeshop v. Colorado decision. It ruled in favor of religious freedom trumping Colorado’s Anti-Discrimination Act in this particular instance but did not rule the broad conflict of religion versus civil rights, therefore not setting a precedent.
The Arizona Supreme Court worked under its own Constitution to decide Brush & Nib v. Phoenix. Justice Andrew Gould, another Ducey appointee, wrote the majority opinion, saying “no law, including a public accommodations law, is immune from the protections of free speech and free exercise.” He regarded the act of creating invitations as “pure speech.”
He wrote forcing Brush & Nib to create a custom invitation for a same-sex couple would force them to imply they were celebrating a marriage they disagreed with. The decision said free speech is more important than “eradicating society of biases.”
Broadly, Gould wrote Phoenix’s human rights law fails under FERA, saying allowing same-sex couples equal access to wedding goods is not a compelling enough interest to override religious freedom.
He said Brush & Nib did not mean to discriminate against same-sex couples, but rather support “traditional” marriage, as if the two were mutually exclusive and not inherently go hand-in-hand. It also goes against the concept of “status” being synonymous with “conduct,” a decision the Supreme Court made in 2009, which goes against the idea that one can discriminate against homosexual people for their actions without discriminating against them for who they are.
Dissenters’ opinion pointed out this inconsistency and questioned why a wedding invitation constituted as “pure speech” and why a commercial activity — such as wedding invitation design — is exempt from strict scrutiny as “speech.”
This decision goes further than Brush & Nib and likely could offer protections that expand past sexual orientation discrimination. A wedding vendor could also refuse to “celebrate” other kinds of marriages they oppose, including interracial or interfaith. At minimum, considering invitations as “pure speech” would protect all wedding vendors whose work included writing from being responsible for discrimination. Other related wedding services, such as photos, food or vow renewals could also apply.
Recently in Mississippi, conservative Christian owners of a wedding venue initially refused service to an interracial couple — until they learned the text of the Bible does not mention any restrictions against interracial marriage.
Additionally, as Slate’s report pointed out, the Arizona Supreme Court’s decision was based solely on Arizona law, making it unreviewable by the U.S. Supreme