Arizona Supreme Court OKs Same-Sex Discrimination by Wedding Invite Vendors

A gavel and a law book - Rainbow flag
By Christopher Coble, Esq. on September 20, 2019 8:46 AM

Weeks after a federal appeals court concluded that a wedding videographer's free speech rights trumped Minnesota's anti-discrimination law, the Arizona State Supreme Court similarly ruled that a wedding invitation company's free speech rights trump Phoenix's anti-discrimination law. Both court decisions open the door for wedding vendors (and perhaps other public accommodations) to refuse service to same-sex couples and LGBT people in general.

And, because the Supreme Court side-stepped the issue of LGBT discrimination in last year's infamous wedding cake discrimination case, both rulings will likely stand, at least for some time.

Old-Fashioned, Offensive, and Ostensibly Legal

"Duka and Koski's beliefs about same-sex marriage may seem old-fashioned, or even offensive to some," Arizona Supreme Court Justice Andrew Gould wrote for the majority. "But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone."

Duka and Koski are Joanna Duka and Breanna Koski, owners of Phoenix's Brush & Nib Studios, which creates custom wedding invitations, along with other wedding products. The pair had not refused service to a same-sex couple, and the City of Phoenix had not cited them for any violations of its ordinance that prohibits public accommodations from discriminating against persons based on a person's sexual orientation. Still, the couple sued to prevent the city from enforcing the ordinance against them in the future.

And, based on Arizona's state constitution and Free Exercise of Religion Act, the court concluded Phoenix could not enforce the ordinance against the couple or Brush & Nib "to force [them] to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs."

Invitations, Celebrations, and Speech

So, how did the court conclude that creating a wedding invitation is "speech" under the Constitution? By finding that "[a]ll the custom wedding invitations Brush & Nib creates include language that is celebratory of the wedding":

Specifically, Plaintiffs create and write celebratory statements in every custom invitation, including such statements as “[the couple or their parents] request the pleasure of your company at the celebration of their marriage," "request the honor of your presence," "invite you to the celebration of their marriage," or "invite you to share in the joy of their marriage."

Additionally, Brush & Nib's contract asserts that the company "retains complete artistic freedom with respect to every aspect of the design's and artwork's creation," and that a client's requested design and artwork must "express ... messages that promote [Brush & Nib's] religious or artistic beliefs, or at least are not inconsistent with these beliefs."

The court was careful to limit its ruling only to custom wedding invitations -- it doesn't apply to Brush & Nib's general business operations and the court ordered, "Plaintiffs must, and they do, serve all customers regardless of their sexual orientation."

Still, it's not hard to see how other public accommodations will seize on the ruling to deny service to same-sex couples or LGBT persons.

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