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Arizona Supreme Court to take up Phoenix’s anti-discrimination ordinance

Arguments concern same-sex couple discrimination
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Posted at 12:52 PM, Jan 21, 2019
and last updated 2019-01-21 14:52:51-05

PHOENIX — The state Supreme Court will hear arguments Tuesday in a challenge of Phoenix’s anti-discrimination ordinance that makes it illegal for businesses to refuse service to same-sex couples for religion reasons.

Two Christian artists who operate a business that makes invitations and other wedding-related items argue that the ordinance will violate their religious beliefs by forcing them to custom-make products for same-sex marriage ceremonies.

So far, two courts have upheld the constitutionality of the ordinance, rejecting the free-speech and exercise-of-religion arguments made on behalf of artists Joanna Duka and Breanna Koski, who believe a marriage should be between a man and woman.

The Arizona Court of Appeals ruled this summer that while the ordinance may have an incidental effect on free speech, its main purpose is to prohibit discrimination. The appeals court concluded the ordinance regulates conduct, not speech.

“The case before us is one of a blanket refusal of service to the LGBTQ community and not a First Amendment challenge to a specific message requested by a specific customer,” the Court of Appeals wrote.

The appeals court said Duka and Koski are free to stop selling custom-made wedding products, but they cannot “use their religion as a shield to discriminate against potential customers.”

Shortly before the ruling in Arizona, the U.S. Supreme Court sided with a Colorado baker who refused to make a wedding cake for a same-sex couple, finding the state’s civil rights commission showed anti-religious bias when it ruled against the baker for refusing to make the cake. The Supreme Court decision, however, didn’t address the larger issue of whether a business can invoke religious objections to refuse service to gay and lesbian people.

An Arizona law that bars discrimination by businesses doesn’t include sexual orientation as a protected class. Phoenix, Tempe, Flagstaff and Tucson have passed ordinances banning businesses from discriminating on the basis of sexual orientation. Phoenix has yet taken any enforcement actions stemming from its ban on sexual orientation-based discrimination.

Phoenix argues objections to same-sex weddings don’t create a free-speech right to refuse service.

Eric M. Fraser, one of the attorneys representing the city of Phoenix in the case, said in an interview that the case is about access to businesses. “We believe the marketplace should be open to everybody,” Fraser said. “This is not about religion or speech. This is about access to goods and services on equal terms.”

The Alliance Defending Freedom, an advocacy group that represents Duka and Koski, didn’t respond to an email and phone call Friday afternoon seeking an interview.

The advocacy group said in court records that the case isn’t about whether a business can decline to serve an entire class of people, but rather about whether artists can freely pick the messages they want to convey.

“These women of deep religious faith gladly serve everyone, including those in the LGBT community; their faith simply prevents them from expressing certain messages for anyone,” the Alliance Defending Freedom said in court records.

Groups on both sides of the legal dispute chimed into the dispute with friend-of-the-court briefs.

About 20 Republicans serving in the Arizona Legislature, a religious freedom organization, and other groups said the ruling was in error and that the state’s highest court should review the case.

The American Civil Liberties Union, the LGBT-rights advocacy organization Lambda Legal, and a group representing businesses that provide photography and other services at weddings said the state Supreme Court should affirm the earlier rulings in the case.