The Arizona Supreme Court granted businesses a right to discriminate against same-sex couples on Monday. By a 4–3 vote, the court carved an exemption into Phoenix’s human rights ordinance to let businesses refuse to sell custom wedding invitations to gay customers. The decision is rooted in the Arizona Constitution and is thus effectively insulated from review by the U.S. Supreme Court. It also contains no clear principle limiting its reach to same-sex couples or to custom invitations—potentially giving Arizona wedding vendors a broad right to discriminate in the name of free speech.
Monday’s ruling Brush & Nib v. Phoenix revolves around a Phoenix ordinance that bars public accommodations from discriminating on the basis of sexual orientation. (There is no analogous state law.) In 2016, the anti-LGBTQ law firm Alliance Defending Freedom filed a lawsuit against the ordinance on behalf of Brush & Nib Studio, a for-profit business that makes custom wedding invitations. No same-sex couple had requested Brush & Nib’s services. But the company’s owners, who are anti-gay Christians, were alarmed by the possibility that they might be compelled to serve a same-sex couple. So ADF asked a court to bar Phoenix from enforcing the law against any business that supported “one-man/one-woman marriage” through “custom artwork.” Its suit rested on the Arizona Constitution’s free speech clause as well as Arizona’s Free Exercise of Religion Act (FERA).
The Arizona Court of Appeals unanimously rejected ADF’s argument and upheld the ordinance. But the Phoenix law did not fare so well at the state Supreme Court, which Republican Gov. Doug Ducey has recently packed, adding two new seats and manipulating the appointment process to fill them with Republicans. The U.S. Supreme Court has declined to resolve the clash between free speech and nondiscrimination; in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court declined to decide whether businesses have a First Amendment right to refuse to sell custom goods to same-sex couples. So, on Monday, the Arizona Supreme Court barreled ahead under its own state constitution, handing same-sex couples a resounding loss in their quest for equality.
Justice Andrew Gould, a Ducey appointee, wrote the majority opinion, a sweeping and orotund affirmation of religious business owners’ right to discriminate. Gould wrote that “no law, including a public accommodations law, is immune from the protections of free speech and free exercise.” Forcing Brush & Nib to create an invitation for a same-sex wedding, Gould held, would compel the business to “conve[y] a message celebrating same-sex marriage.” The ordinance therefore constitutes “compelled pure speech” and must survive strict scrutiny to pass constitutional muster. But to pass strict scrutiny, a law must further a “compelling government interest.” And “commandeering [the] creation of custom wedding invitations” does not further the interest of ending discrimination, because free speech is more important than “eradicating society of biases.”
Similarly, Gould wrote that the ordinance fails under FERA, which requires a substantial burden on the exercise of religion to be the “least restrictive means of furthering [a] compelling governmental interest.” Again, Gould held that guaranteeing same-sex couples equal access to all wedding goods is not a compelling interest. And he ruled that Phoenix’s ordinance was not the “least restrictive means” because it “overrides all conflicting individual rights and liberties.”
Throughout his opinion, Gould expresses deep sympathy for Brush & Nib. The justice took great pains to insist that Brush & Nib did not wish to discriminate against gay people but only to express its support for traditional marriage. He asserted that the case “about freedom of speech and religion,” not about “discriminatory conduct based on a customer’s sexual orientation.” In fact, according to Gould, Brush & Nib does not seek to discriminate against gay people at all but rather to avoid “convey[ing] a message celebrating same-sex marriage, for any customer regardless of sexual orientation.”
This claim is nonsensical. When a business discriminates against a same-sex couple because of their sex, it is inherently engaging in sexual orientation discrimination. The individuals affected by such discrimination are, by definition, not heterosexual; a heterosexual couple would not encounter the same problem. Gould’s analysis draws on the “status vs. conduct” distinction—the notion that one can discriminate against gay conduct without discriminating against gay people. The U.S. Supreme Court has rejected this fallacy, since all discrimination against gay conduct, including same-sex marriage, invariably burdens sexual minorities. But Gould revived it in a strange effort to deny the fact at the center of this case: Brush & Nib wants to refuse service to same-sex couples who wish to exercise their constitutional right to marry.
There is another curious component of Gould’s ruling: He barely acknowledged the harms inflicted on same-sex couples who are refused service because they are gay. Nor did he recognize Phoenix’s interest to shielding gay residents from discrimination. Gould framed Christian businesses’ right to discriminate as obviously more important than gay people’s right to live free of discrimination. He even ruled that safeguarding same-sex couples’ full and equal access to the market is not a compelling interest. In doing so, he dismissed the demeaning, stigmatizing effect of sexual orientation discrimination, suggesting that gay Arizonans must simply accept this stigma as the price they pay for free speech.
The dissenters pointed out these flaws in the majority opinion along with a few others. It is not at all clear, for instance, why a wedding invitation sold for profit qualifies as “pure speech” or why any restriction on this “speech” must survive strict scrutiny if it is a commercial activity. Moreover, the majority’s conception of the “least restrictive means” test leaves little room for nondiscrimination laws that implicate speech. Under Gould’s view, the less restrictive option is to carve an exemption for discriminators—defeating the very purpose of the law. The right to discriminate trumps nondiscrimination whenever speech is involved.
Finally, while Gould claimed to craft a “narrow exemption,” he laid down a rule that could be quite expansive. First, the logic of the decision is not limited to same-sex couples. A wedding vendor who opposes other kinds of marriage—interracial or interfaith marriage, for instance—would presumably have the same free speech right not to “endorse” those marriages by creating wedding invitations for them. The court can only restrict its decision to same-sex couples by ruling that gay people are uniquely undeserving of protection. It did not go that far on Monday, though given Gould’s cavalier repudiation of gay equality, it might be in the cards.
Second, Gould’s rule could apply to other wedding-related goods, like cakes or flowers. At a minimum, it would seem to apply to other wedding-related writing, like menus or table place cards. If an invitation for a same-sex wedding “endorses” that marriage, doesn’t a menu for the celebrants do the same? And what about other marriage-related activities, like engagement photos or a renewal of vows? Do those fall into Gould’s exemption?
The Arizona Supreme Court will have plenty of time to expand its decision. Although Gould drew on SCOTUS precedent, he rooted his decision solely in the laws and constitution of Arizona. It is essentially unreviewable. And it is unlikely that a future majority will overturn it, since Ducey just placed anti-gay advocate Bill Montgomery on his packed court. Ducey’s justices will no doubt ensure, for years to come, that the citizens of Arizona cannot eradicate discrimination against same-sex couples.
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