A 4-3 decision from the Arizona Supreme Court held that a Christian wedding invitation company can refuse to provide certain services to same-sex couples.
Yesterday, the Arizona Supreme Court ruled that a company that makes custom wedding invitations did not have to do so for a same-sex couple, regardless of the content on the invitations themselves. It's the latest victory for extreme religious conservatives who want to operate for-profit companies that offer services to the public yet not be required to serve anyone they disapprove of.
It all started with a cake. Hyper-conservative Masterpiece Cakeshop owner Jack Phillips refused to bake a wedding cake for a gay couple because he said his bigoted version of Christianity prevented him from doing so. He was so worried about the possibility of gay cake that he took the case all the way to the United States Supreme Court, where he prevailed. In doing so, he opened the door for anti-LGBTQ bigots all across the country to refuse service to same-sex couples who just want to get married.
That's exactly what happened in Arizona. There, Brush and Nib, a for-profit corporation open to the public, was so worried it might have to create custom wedding invitations for same-sex couples it sued the state preemptively. It asked for what is known as a "declaratory judgment." That's where someone who is worried the law would be applied to them sues the entity that made the law, asking the court to declare the law wrong. Brush and Nib won in a 4-3 ruling, where all the conservative justices sided with the company.
Make no mistake: This is part of a concerted effort on the part of conservative Christian groups to undermine state and local laws that protect LGBTQ people. Indeed, Brush and Nib were represented by Alliance Defending Freedom (ADF), the same people behind the Masterpiece Cakeshop case. Brush and Nib took a savvy approach to their lawsuit, asking the court only to agree that it couldn't be required to make custom wedding invitations for same-sex couples. Everything else, the company insisted, it would be happy to do.
That approach is akin to what happened in the Masterpiece Cakeshop case, and it was successful there as well. The argument goes like this: It isn't discrimination to say you won't bake a cake, or film a video, or arrange flowers, or do invitations for a same-sex wedding. That's because you're not discriminating against LGBTQ people as such — you're just refusing to participate in the same-sex wedding, of which you morally disapprove. It's a magical distinction between conduct and speech that has become a favorite of conservatives. They hate the sin, but they love the sinner. They're not refusing service to someone because they’re gay, they're refusing to celebrate same-sex marriage.
It's a neat, if entirely disingenuous, trick, and it is one courts keep falling for, in large part because conservative judges are all too happy to make common cause with Christian bigots.
The majority's decision relied heavily on what is known as "pure speech." That usually refers to things such as paintings, music, and film. But the majority was willing to expand it to cover things like making wedding invitations. In doing so, it goes a long way toward gutting the protections of Phoenix's anti-discrimination ordinance. If invitations are pure speech, what about doing someone's hair? What about cooking them a meal?
These were some of the concerns raised by liberal justices during the oral arguments in the Masterpiece Cakeshop case, and they are questions that go unanswered here. Typically, as one of the dissents in the Arizona case pointed out, things like baking cakes and making invitations are generally more properly considered services or conduct, not speech.
That distinction matters for a reason. You can't compel pure speech. Put another way, you can't go to your favorite songwriter and demand they write a song for you, much less one that goes against their moral principles. However, that songwriter isn't holding themselves out as available to everyone. In contrast, you can go to the flower shop or salon or wedding invitation place and ask them to perform a service for you or sell you something. That's because those places, unlike artists, are what are known as "public accommodations."
Public accommodations have to serve everyone, thanks to the civil rights movement. Black Americans brought lawsuits when hotels, motels, restaurants, and other similar locations refused to serve them. In a landmark civil rights decision in 1964, the U.S. Supreme Court ruled that such conduct was unconstitutional. Put a much simpler way: If you're a business that holds yourself open to the public, you are required to do business with everyone that wishes to do business with you.
Except, it seems, LGBTQ people who want to get married. Then, the Arizona Supreme Court is happy to carve out an odd little chunk of civil rights law and say it doesn't apply to LGBTQ people because the Christians that own the business don't approve of same-sex marriage. That's what they did here, holding that Brush and Nib could never be required to make a wedding invitation for a same-sex couple, even if that wedding invitation didn't mention same-sex marriage.
One of the dissents in this case (there were three of them) pointed out how absurd this is: "Brush & Nib can refuse to prepare custom wedding invitations for Jordan and Alexis who share the same sex even though it would sell identical invitations to an opposite-sex couple with the same names." Moreover, the dissent noted, this creates an odd patchwork of laws across Phoenix and one that LGBTQ people can't possibly anticipate. This salon will do your hair for your special wedding day, but this one won't. This wedding venue will allow you to hold your wedding there, this one won't. Brush and Nib must sell you prepackaged invitations, but can't be required to make invitations for you. An anti-discrimination ordinance doesn't really work if certain companies can ignore the ordinance because of their religious beliefs.
And it's that religious belief that's the real issue here. Phoenix's law already exempts religious organizations, such as churches or church-affiliated groups. Those entities are free to refuse to hire LGBTQ people, marry LGBTQ people, and more. But Brush and Nib isn't a religious organization. It's a private for-profit company that happens to be owned by two conservative Christian people — conservative Christian people who don't want to follow the law when it comes to discrimination.
The majority also assumes it can nail shut the Pandora's box a decision like this has opened. Sure, the opinion may be narrowly limited to saying that Brush and Nib don't have to make custom wedding invitations, but there's no real way to control what people will do in light of this decision. There was just a recent incident where a Mississippi wedding venue refused to host a wedding for a mixed-race couple, saying it was against their religion. It's tough to say that one type of discrimination is high-minded and permissible, but the other kind is racist and impermissible.
This decision didn't include the newest terrible Arizona Supreme Court Justice Bill Montgomery, a personal friend of ex-Sheriff Joe Arpaio, who hates same-sex adoptions. But it did include justices that GOP Gov. Doug Ducey got to install when he packed the Arizona Supreme Court by adding two additional conservative members to what had been a five-judge panel. Ducey's court-packing all but guaranteed this bigoted result. With this court lineup, expect more cases that drastically limit the rights of LGBTQ individuals in the state.
Published with permission of The American Independent Foundation.