For the second month in a row, a court has rejected the Alliance Defending Freedom’s attempts to overturn LGBTQ nondiscrimination protections. It’s the latest in a long line of defeats leading up to the Supreme Court’s consideration of an anti-gay baker’s case later this year.
An Arizona state judge ruled earlier this week that Brush & Nib, a custom calligraphy studio run by Joanna Duka and Breanna Koski, does not have the right to refuse service to same-sex couples for their weddings. The Brush & Nib case was the first of ADF’s now many “pre-enforcement challenges,” in which businesses challenge sexual orientation nondiscrimination protections, seeking permission to refuse service to same-sex couples without actually being found in violation of the law.
Brush & Nib contend that they shouldn’t have to create custom art for a same-sex couple’s wedding (invitations, programs, etc.) because doing so would violate their rights of free speech, association, and religion. They argue that Phoenix’s ordinance protecting against discrimination on the basis of sexual orientation should not apply to the services they provide. It’s the identical argument ADF is making in the Masterpiece Cakeshop case before the U.S. Supreme Court.
Judge Karen Mullins had previously denied ADF a preliminary injunction to begin circumventing the nondiscrimination law last year, which forecast the defeat she handed them this week. In her decision, she rejected each and every claim they made, concluding that nothing about the law burdened their First Amendment rights.
“The Court disagrees that the ordinance violates Plaintiffs’ right to free speech under the Arizona Constitution, interferes with their right of expressive association, or is overly broad,” the decision reads. The government has an interest in eliminating discrimination and can regulate businesses even if the goods they sell “involve expression or artistic creativity” like calligraphy. “Indeed, the government’s interest in rooting out discrimination is wholly unrelated to the first amendment and the antidiscrimination terms of the Ordinance apply to all places of public accommodation regardless of what particular goods or services are sold.”
Likewise, even though Brush & Nib is not permitted to post a notice indicating an intention to discriminate, their free speech is not inhibited. They may “post a statement expressing their views that God created marriage as a life-long union exclusively for one man and one woman, so long as that statement does not state or imply that same-sex couples are unwelcome as customers.”
Neither was Mullins convinced that serving same-sex couples somehow burdened the calligraphers’ religion. “Nothing about the ordinance has prevented the Plaintiffs from participating in the customs of their religious beliefs or has burdened the practice of their religion in any way,” she explains. “The printing of same-sex persons’ names on wedding invitations does not hinder in any way Plaintiffs’ independent exercise of [their religious beliefs] by attending the church of their choice, engaging in religious activities or functions, and expressing their beliefs on their business website and literature or in their personal lives.”
Despite Arizona’s robust religious freedom guaranteed in the state’s Free Exercise of Religion Act, Mullins failed to see how it applied. “Plaintiffs have failed to assert even an incidental burden on the exercise of their religion, and certainly cannot establish a substantial burden.”
And she was equally unimpressed with ADF’s claim that there was a double standard against anti-gay businesses. “Plaintiffs seem to argue that art studios that create art for same-sex marriages are treated differently from art studios that create art for only opposite-sex marriage,” she explains. “This argument is rejected out of hand as no rational court would conclude that two such classes were created by the Ordinance or in any way protected by the equal protection clause of the Arizona Constitution.”
This is another solid defeat for ADF. Just last month, a federal judge in Minnesota ruled against them in an identical pre-enforcement challenge featuring a pair of Christian videographers, suggesting they didn’t even understand how nondiscrimination laws work.
But ADF, which the Southern Poverty Law Center has identified as an anti-LGBTQ hate group for its pro-discrimination advocacy, is undeterred. In a press statement this week, they promised to appeal the Brush & Nib decision. In doing so, they brazenly mischaracterized the ruling, claiming that Phoenix’s ordinance forced them to “promote same-sex marriages” and prohibited them from “communicating their belief that God designed marriage as a union between one man and woman.”
“If Duka and Koski explain their position on marriage and how that position affects their artwork, they risk up to six months in jail, a $2,500 fine, and three years of probation for each day they violate the ordinance,” ADF claims. It’s an outright lie, and fortunately, not one that the courts have been falling for.
In December, ADF will ask the Supreme Court to consider similar pro-discrimination arguments as they defend a baker who refused to sell the exact same wedding cakes to same-sex couples that he sold to different-sex couples.