On Thursday, the Arizona Court of Appeals released the first decision to consider the constitutionality of LGBTQ nondiscrimination laws in the wake of the U.S. Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Unfortunately, Masterpiece Cakeshop declined to expressly resolve the central question in the case—whether religious businesses have a First Amendment right to discriminate against same-sex couples. But the decisions issued in its wake will help to determine how lower courts interpret the Supreme Court’s somewhat ambiguous resolution of the First Amendment issues at hand. And the Arizona Court of Appeals’ ruling provides the first indication that, as many predicted, the judiciary will construe Masterpiece Cakeshop to affirm the constitutionality of civil rights measures that protect LGBTQ Americans.
Brush & Nib Studio v. Phoenix, Thursday’s decision, involved yet another challenge mounted by Alliance Defending Freedom, an anti-LGBTQ law firm, to a local nondiscrimination ordinance. (ADF also represented the anti-gay baker in Masterpiece Cakeshop and hopes to undermine LGBTQ civil rights laws across the country.) In 2013, Phoenix passed a measure prohibiting discrimination on the basis of sexual orientation in public accommodations. ADF filed suit against the law on behalf of Brush & Nib Studio, a for-profit business that sells cards and decorations for, among other special events, weddings. The studio argued that the Phoenix law violates its First Amendment right to freedom of speech by prohibiting it from turning away same-sex couples who wish to celebrate their weddings.
In a unanimous opinion, the Arizona Court of Appeals emphatically rejected Brush & Nib’s claim. The court first pointed to a number of state court decisions that considered and rebuffed extremely similar lawsuits brought by bakers, florists, photographers, and venue rental owners. It then cited a paragraph of Masterpiece Cakeshop that may prove to be its most enduring declaration:
Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges, “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
Masterpiece Cakeshop, the appeals court explained, struck a balance between free speech for discriminators and equal dignity for gays. The government may prohibit businesses from discriminating against same-sex couples—so long as it respects those businesses’ religious beliefs in adjudicating their disputes. Brush & Nib Studio may sincerely oppose same-sex marriage. But, the court explained, it could not create an exception for anti-gay businesses without inflicting a “grave and continuing harm” on gay people.
With that framework in mind, the court evaluated Brush & Nib Studio’s free speech claims. The act of creating merchandise, the company insisted, constitutes “expressive conduct” that implicates the company in the celebration of same-sex weddings. It must therefore receive the highest protection under the First Amendment.
Not so, the court wrote. As the Supreme Court held in Rumsfeld v. FAIR, a law designed to regulate conduct may place incidental burdens on expression without triggering First Amendment scrutiny. That is precisely what Phoenix’s law does: While it has “an incidental impact on speech, its main purpose is to prohibit discrimination,” and thus “properly regulate[s] … conduct, not speech.” It does not matter that Brush & Nib’s goods are “customized,” rather than off-the-shelf. This distinction “would likely be indistinguishable to the public,” and no “general observer would attribute a company’s product … as indicative of the company’s speech or personal beliefs.” Whether custom-made or prepackaged, a wedding company’s goods do not express approval of any particular wedding and therefore involve no First Amendment speech.
Brush & Nib proffered a few other weak complaints that the court easily swatted down. The company argued that Arizona also violated its right to “expressive association” under the First Amendment by forcing it to associate with same-sex couples. While private groups have a constitutional right to promote their message by excluding members, however, the “primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity.” As a for-profit business, it has no right to reject customers on the basis of their identity.
Finally, the appeals court swatted down Brush & Nib’s claim under Arizona’s Religious Freedom Restoration Act. This law bars any government action that “substantially burdens” religion unless it furthers a “compelling interest” through the least restrictive means necessary. Phoenix’s nondiscrimination law, the court held, does not “substantially burden” religion; it merely requires companies to “provide equal goods and services to customers regardless of sexual orientation.” But even if it did, the court held, it would comply with RFRA, because eliminating discrimination has long been understood to qualify as a compelling government interest. Moreover:
Prohibiting places of public accommodation from discriminating against customers is not just about ensuring equal access, but about eradicating the construction of a second-class citizenship and diminishing humiliation and social stigma. The least restrictive way to eliminate discrimination in places of public accommodation is to expressly prohibit such places from discriminating.
These are strong words—but they echo Masterpiece Cakeshop’s encomia to the equal dignity of same-sex couples, simply taking the Supreme Court’s reasoning to its logical endpoint. ADF will almost certainly appeal to the Arizona Supreme Court, but it is unlikely to fare better among the relatively LGBTQ-friendly justices. It is obviously too soon to declare Masterpiece Cakeshop a long-term victory for gay rights. But the earliest signs are extremely encouraging.
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