Arizona’s attorney general says calligraphers should be allowed to turn away gay customers
Owners of Brush and Nib Studio say Phoenix's nondiscrimination ordinance violates their First Amendment rights
Arizona’s attorney general has sided with the owners of a calligraphy business who are asking for an exemption from the city of Phoenix’s nondiscrimination ordinance that will allow them to turn away same-sex couples and LGBTQ customers.
In an amicus brief submitted to the Arizona Supreme Court, Attorney General Mark Brnovich (R) and seven other states’ attorneys general argue that the owners of Brush & Nib Studio, a Phoenix-based business that creates customized calligraphy and paintings for weddings, should be granted an exemption to protect their religious beliefs, which oppose same-sex relationships.
The owners of Brush & Nib, who identify as evangelical Christians, say that designing invitations or custom-made artwork for same-sex marriages is equivalent to endorsing those unions.
As such, they believe the mere existence of Phoenix’s ordinance (in its current form), which prohibits places of public accommodation from discriminating against LGBTQ individuals, threatens their First Amendment rights — even though no same-sex couples have requested services from them.
Thus far, Brush & Nib has not successfully convinced judges that their constitutional rights are at risk, as both the Maricopa County Superior Court and the Arizona Court of Appeals ruled that the owners’ First Amendment rights did not trump the importance of the nondiscrimination ordinance’s protections for LGBTQ individuals.
But Brnovich and his fellow attorneys general argue that, while nondiscrimination ordinances are legal, the lack of a religious exemption in Phoenix’s ordinance compels the calligraphers to create artwork against their will. Because customized calligraphy and paintings are artistic works, they are protected forms of free speech under both the Arizona and U.S. Constitutions.
“Hate-based discrimination towards any group of people has no place in our public accommodations. The idea that a government could fine and jail these two women for choosing to not create custom-made art in conflict with their religious beliefs is wrong,” Brnovich said in a statement to The Arizona Republic. “Our brief seeks a balance to keep the anti-discrimination ordinance in place and respect the religious beliefs and property rights of individuals engaged in faith-based artistic expression.”
More than two dozen Republican state lawmakers, including the incoming House Speaker and Senate President, also submitted a brief backing Brush & Nib.
“Government cannot compel Brush & Nib to create dozens of little billboards, whether arranged on tables or mailed to guests, holding out Phoenix’s message of marriage, if that message goes against Brush & Nib’s philosophical and religious objections to it,” the lawmakers write in their brief.
But several groups have filed their own amicus briefs supporting the city of Phoenix.
A coalition of eight law school professors and First Amendment scholars have argued that just because Brush & Nib’s services are artistic in nature does not mean its owners are entitled to special protections. In this case, they argue, a wedding calligrapher is no different than a food caterer, limo driver, or hotel staff, solely providing a service as part of a business transaction.
The women’s desire to preemptively turn away same-sex couples “has nothing to do with [their] calligraphy and artistic talents, and everything to do with their desire not to provide same-sex couples with the same services they provide to heterosexual couples,” the professors and scholars write in their brief.
Another group, consisting of religious organizations, religiously-affiliated groups, and civil rights advocates, has also argued in the city’s favor.
“Religious freedom is a constitutionally and statutorily protected value of the highest order. It is not, and has never been, a license to discriminate in violation of neutral public-accommodations laws,” the groups write in their brief. “[Nondiscrimination laws] guarantee that a Muslim cannot be refused a meal by a Protestant restaurateur, a Sikh cannot be evicted by a Baptist landlord, and a Catholic cannot be fired by a Jewish supervisor for adhering to the ‘wrong’ faith.”
Other groups issuing briefs in support of the ordinance include the American Civil Liberties Union, other Arizona-based wedding vendors, and more than 200 major corporations or business groups, including American Express, PayPal, and the Greater Phoenix Economic Council.
The Scottsdale-based Alliance Defending Freedom, which is representing Brush & Nib, is challenging several other nondiscrimination laws across the country. One of those cases involved representing Colorado baker Jack Phillips, who went before the U.S. Supreme Court to challenge his state’s nondiscrimination law.
Although the Supreme Court eventually ruled in Phillips’ favor — on a very narrow basis, finding only that the state’s Civil Rights Commission may have showed bias against Phillips and did not take his concerns about religious freedom seriously — it did not resolve the issue of how to strike a balance between nondiscrimination ordinances and religious exemptions. Since then, ADF has been mounting other legal challenges, including Brush & Nib, with an eye toward eventually getting the high court to issue such a ruling.
Lawyers for Brush & Nib and the city of Phoenix will next appear in court on Tuesday, Jan. 22, when the Arizona Supreme Court will hear arguments over the challenge to the ordinance.
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