A "religious freedom to discriminate" case

2016: Owners of a custom
calligraphy studio attempt to
overturn Phoenix AZ's human
rights ordinance:

Part 3 of three parts.

This topic is continued here from the previous essay

2016-SEP-19: Trial court judge rules on the Brush & Nib Studio v. City of Phoenix case: (Continued)

Judge Mullins 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 web site and may practice their religious beliefs without substantial burden. The balance of hardships favors Defendant City [of Phoenix], 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."

Counsel Scruggs appears to have misunderstood the scope of the ordinance. He said:

"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." _1,2

Artists are quite free to create whatever art they wish to create. However, when they form a for-profit business that solicits artwork orders from the general public, the human rights ordinance at Phoenix does not allow them to turn away customers because of the latter's sexual orientation. _1,2,3

The City of Phoenix issued a statement on the trial court ruling:

"The city of Phoenix achieves victory and equality for all as the city’s non-discrimination ordinance is ruled legal and valid by the Maricopa County Superior Court on Sept. 19, 2016. The court ruled in favor of the city’s non-discrimination ordinance that protects the rights of all residents to be served in public accommodations regardless of their race, ethnicity, gender, sexual orientation or disability. Brush & Nib Studio, a wedding-invitation business, lost its case attacking the Phoenix ordinance. The court recognized that the ordinance does not violate the Free Speech Clause of the Arizona Constitution and that the ordinance does not impose a substantial burden on the business owner’s exercise of religion. The city of Phoenix will continue to observe the ordinance that protects the rights of all residents." ₄

ADF attorney Jonathan Scruggs issued a statement, saying:

"Artists shouldn’t be threatened with jail time just because they don’t hold the same views the government does. We are asking the appeals court to reverse the trial court and suspend this ordinance while our case goes forward because the city must allow artists the freedom to make personal decisions about what art they will and will not create. In addition, the ordinance’s further requirement that artists stay quiet about their views is clearly unjust and unlawful." ₄

Phoenix Mayor Greg Stanton issued statement saying:

"This ruling affirms that our non-discrimination ordinance was not only the right thing to do, but it was solid, constitutionally sound law. Our non-discrimination ordinance has made Phoenix a stronger, more vibrant and more economically viable city because it protects fundamental civil rights for everyone." ₄

2016-SEP-20: Alliance Defending Freedom (ADF) files an appeal:

One day after Judge Karen A. Mullins of the Superior Court of Arizona issued her ruling, attorneys at Alliance Defending Freedom appealed her decision to the Arizona Court of Appeals, Division One. _5,6 It says, in part:

"Plaintiffs describe themselves as Christians, and testified that they cannot separate their religious beliefs from their business. Thus, if same-sex couple were ever to request their custom wedding invitation services, Plaintiffs would deny to sell them these services, although they would sell pre-made products to any customer. Plaintiffs desire to post on their business web site their intent in this regard:

'For example, Brush & Nib Studio won’t create any custom artwork that demeans others, endorses racism, incites violence, contradicts our Christian faith, or promotes any marriage except a marriage between one man and one woman. That means Brush & Nib Studio won’t create any custom art, such as wedding invitations, for same-sex wedding ceremonies.' ..."

"Plaintiffs also desire to post their religious views on their web site, but have not yet done so due to their fear that such posting would violate the Phoenix City ordinance in issue here. An example of such a desired post is:

'We understand if you disagree with some of our beliefs. We support your right to disagree! Some may, for instance, disagree with our beliefs about marriage. We believe that God created marriage as a life-long union exclusively for one man and one woman. Only this marriage reflects Jesus’ love for His bride, the Church. No other type of marriage reflects this, same-sex marriage included. We can’t promote a marriage that God says isn’t really marriage. Or take gender equality. We believe that God created both men and women equally in His image. So we can’t promote businesses that exploit women or sexually objectify the female body to sell goods. Or take the environment. We believe that God created the world and entrusted humans to care for it. So we can’t create art that promotes businesses that exploit the environment. But even if our beliefs are a bit different or unpopular, we have to stick to them – to be true to ourselves, to be true to our art, to be true to our God'." ₆

Their appeal contains an excerpt from Section 18-4 B of the Phoenix City Code that bans public accommodations from discriminating against persons based on sexual orientation:

"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." ₇

More information will be added here as the appeal progresses.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Trial court ruling denying motion to dismiss and motion for preliminary injunction," available at: Alliance Defending Freedom, at: http://www.adfmedia.org/
2. "Court Won’t Temporarily Suspend Phoenix Ordinance, Artists May Appeal," Arizona Daily Independent, 2016-SEP-20, at: https://arizonadailyindependent.com/
3. John Kennedy, "Wedding Invitation Biz Can't Block Phoenix Anti-Bias Law," Law360, 2016-SEP-20, at: http://www.law360.com/
4. Mike Sunnucks, "Christian artists appeal court ruling in favor of Phoenix’s LGBT discrimination protections," Biz Journals, 2016-SEP-23, at: http://www.bizjournals.com/
5. "Artists ask appeals court to halt Phoenix ordinance that threatens jail time for disagreeing with govt," Alliance Defending Freedom, 2016-SEP-21, at: http://www.adfmedia.org/
6. "Brush & NIb Studio LC," Court of Appeals, at: 1 CA-CV 16-0602 This is a PDF file.
7. "City of Phoenix: 18-4 Prohibited Acts," Code Publishing Co., 2016-OCT-19, at: http://www.codepublishing.com/
   

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Copyright © 2016 by Ontario Consultants on Religious Tolerance
Original posting: 2016-DEC-07
Latest update : 2016-DEC-07
Author: B.A. Robinson

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