The precedential meaning of a Supreme Court decision depends on how lower courts interpret it. The media reported the Supreme Court’s Masterpiece Cakeshop ruling as a “win” for baker Jack Phillips, since the court reversed the discrimination rulings against him by the Colorado Court of Appeals and the Colorado Civil Rights Commission. But the opinion has a deeper significance than a superficial “win” or “loss” can capture, as the Arizona Court of Appeals demonstrated just days later in its rejection of a claim that a company that designs artwork for weddings and other special events can refuse to design and provide goods for same-sex weddings.
Alliance Defending Freedom (ADF), the same anti-LGBT legal outfit that represented Jack Phillips before the Supreme Court, represents Brush & Nib Studio, LC, a for-profit company that sells both pre-fabricated and specially designed artwork. The company provides retail goods and services to the public, so it comes within the coverage of the city of Phoenix, Arizona’s, public accommodations anti-discrimination ordinance.
Although Brush & Nib had not received any requests to produce invitations for a same-sex wedding since such marriages became legal in Arizona, the owners had determined, based on their religious beliefs, that they would not provide their goods and services for such ceremonies. Represented by ADF, they sued in the state trial court in Phoenix, seeking a preliminary injunction to bar enforcement of the ordinance against them in case such a customer should materialize in the future.
As described in the Court of Appeals’ opinion by Judge Lawrence F. Winthrop, the owners “believe their customer-directed and designed wedding products ‘convey messages about a particular engaged couple, their upcoming marriage, their upcoming marriage ceremony, and the celebration of that marriage.” And they did not want any part of it. They “also strongly believe in an ordained marriage between one man and one woman, and argue that they cannot separate their religious beliefs from their work. As such, they believe being required to create customer-specific merchandise for same-sex weddings will violate their religious beliefs.”
They not only wanted to be assured that they could reject such business without risking legal liability; they also wanted to post a public statement explaining their religious beliefs, including a statement that they would not create any artwork that “promotes any marriage except marriage between one man and one woman.” They haven’t posted such a statement yet out of concern that it would violate a provision of the Phoenix ordinance, which forbids a business from posting or making any communication that “states or implies that any facility or services shall be refused or restricted because of . . . sexual orientation . . . , or that any person, because of . . . sexual orientation . . . would be unwelcome, objectionable, unacceptable, undesirable, or not solicited.”
Maricopa County Superior Court Judge Karen Mullins rejected the motion for preliminary injunction, finding that the business did not enjoy a constitutional exemption. The Court of Appeals held up ruling on ADF’s appeal until the Supreme Court issued its Masterpiece Cakeshop ruling on June 4, then quickly incorporated references to it into the opinion by Judge Winthrop issued on June 7.
After reviewing the unbroken string of state appellate court rulings from around the country that have rejected religious and free speech exemption claims in such cases over the past several years, Judge Winthrop wrote: “In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing Appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” citing the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.
He continued with a lengthy quote from Justice Anthony Kennedy’s opinion for the Supreme court in Masterpiece Cakeshop:
“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. See Newman v. Piggy [Piggie] Park Enterprises, Inc. (1968) (per curiam); see also Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (‘Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments’).”
The cases cited by Justice Kennedy in the quoted paragraph evidently sent a strong message for lower courts. Piggie Park is a classic early decision under the Civil Rights Act of 1964, holding that a restaurant owner’s religious opposition to racial integration could not excuse him from serving people of color in his barbecue restaurant. Hurley was the famous St. Patrick’s Day Parade case from Boston, where the Supreme Court upheld the 1st Amendment right of parade organizers to exclude a gay Irish group from marching under their own banner proclaiming their gay identity. The quoted language from that decision made clear that state’s may pass laws forbidding sexual orientation discrimination by businesses, but in this case the Court found that the parade organizers were not a business selling goods and services, but rather the non-profit organizers of an expressive activity who had a right to determine what their activity would express.
The points are clear: States can forbid businesses from discriminating against customers because of their sexual orientation, and businesses with religious objections will generally have to comply with the non-discrimination laws. The “win” for baker Jack Phillips involved something else entirely: the Supreme Court’s perception that Colorado’s Civil Rights Commission did not give Phillips a fair hearing because members of the Commission made public statements denigrating his religious beliefs at the hearing. Justice Kennedy insisted for the court that a litigant’s dignity requires that the tribunal deciding his case be neutral and not overtly hostile to his religious beliefs, and that was the reason for reversing the state court and the state agency. Kennedy’s discussion of the law clearly pointed in the other direction, as Justice Ruth Bader Ginsburg observed in her dissent. And the Arizona Court of Appeals clearly got that message.
Turning to ADF’s free speech argument, Justice Winthrop wrote, “Appellants argue that [the ordinance] compels them to speak in favor of same-sex marriages. We disagree. Although [it] may have an incidental impact on speech, its main purpose is to prohibit discrimination, and thus [it] regulates conduct, not speech.”
The court found this case similar to Rumsfeld v. FAIR, a case in which the Supreme Court rejected a free speech challenge by an organization of law schools to a federal law that required schools to host military recruiters at a time when the Defense Department’s policies discriminated against gay people. The law schools claimed that complying with the law would violate their 1st Amendment rights, but the Supreme Court said that the challenged law did not limit what the schools could say, rather what they could do; that is, conduct, not speech.
“We find Rumsfeld controlling in this case,” wrote Winthrop. The court found that the “primary purpose” of the city ordinance is to “prohibit places of public accommodation from discriminating based on certain protected classes, i.e., sexual orientation, not to compel speech. . . Like Rumsfeld, [the ordinance] requires that places of public accommodation provide equal services if they want to operate their business. While such a requirement may impact speech, such as prohibiting places of public accommodation from posting signs that discriminate against customers, this impact is incidental to property regulated conduct.”
Further distinguishing this case from the Hurley decision, the court said that requiring the business to comply with the law “does not render their creation of design-to-order merchandise for same-sex weddings expressive conduct. The items Appellants would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public. Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa). This invitation would not differ in creative expression. Further, it is unlikely that a general observer would attribute a company’s product or offer of services, in compliance with the law, as indicative of the company’s speech or personal beliefs. The operation of a stationery store – including the design and sale of customized wedding event merchandise – is not expressive conduct, and thus, is not entitled to First Amendment free speech protection.”
The court also rejected an argument that the ordinance violated the right of expressive association. “We do not dispute that some aspects of Appellants’ operation of Brush & Nib may implicated speech in some regard,” wrote Justice Winthrop, “but the primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity. Thus, Appellants’ operation of Brush & Nib is not the type of expressive association that the First Amendment is intended to protect.” Certainly not like a parade, which the court in Hurley described as a “quintessential” expressive activity.
However, the court found that the portion of the ordinance dealing with forbidden communications used vague language that was overbroad and unclear about which statements might constitute violations. “We are unable to interpret [the ordinance’s] use of the words ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ in a way that would render [it] constitutional,” wrote Winthrop. “The presence of one invalid prohibition, however, does not invalidate all of [the ordinance].”
“Here, by striking the second half [of the offending section] – which bans an owner of a place of public accommodation from making a person feel ‘unwelcome,’ ‘objectionable,’ ‘unacceptable,’ and ‘undesirable’ based on sexual orientation – does not render the remainder of the ordinance unenforceable or unworkable. . . The remainder of [the provision] operates independently and is enforceable as intended.”
Turning to the free exercise of religion issue, the court had to deal with the state’s Free Exercise of Religion Act, which prohibits governmental entities in Arizona from substantially burdening a person’s exercise of religion “even if the burden results from a rule of general applicability” unless the rule is both “in furtherance of a compelling government interest and is the least restrictive means of furthering that governmental interest.” The statute’s language is taken verbatim from the federal Religious Freedom Restoration Act.
The court rejected the argument that requiring the business to provide goods and services for same-sex weddings imposed a substantial burden on the religious beliefs of the business owners. “Appellants are not penalized for expressing their belief that their religion only recognizes the marriage of opposite sex couples,” wrote Winthrop. “Nor are Appellants penalized for refusing to create wedding-related merchandise as long as they equally refuse similar services to opposite-sex couples. [The ordinance] merely requires that, by operating a place of public accommodation, Appellants provide equal goods and services to customers regardless of sexual orientation.” They could stop selling wedding-related goods altogether, but what they “cannot do is use their religion as a shield to discriminate against potential customers,” said the court. Although providing those goods and services to same-sex couples might “decrease the satisfaction” with which they practice their religion, “this does not, a fortiori, make their compliance” a substantial burden to their religion.
And, even if it did impose such a burden, the court found that the city of Phoenix “has a compelling interest in preventing discrimination, and has done so here through the least restrictive means. When faced with similar contentions, other jurisdictions have overwhelmingly concluded that the government has a compelling interest in eradicating discrimination.” The court quoted from the Washington Supreme Court’s decision in Arlene’s Flowers, but could just as well have been quoting Justice Kennedy’s language in Masterpiece Cakeshop, quoted here.
Finally, the court rejected an equal protection challenge to the ordinance, finding that it did not treat people with religious beliefs about marriage differently than others, and that the owners of the business could not claim that they are members of a “suspect class” for purposes of analyzing their equal protection claim. “Phoenix has a legitimate governmental purpose in curtailing discriminatory practices,” wrote Winthrop, “and prohibiting businesses from sexual orientation discrimination is rationally related to that purpose.”
A spokesperson for ADF promptly announced that they would seek review from the Arizona Supreme Court, which has discretion whether to review the decision. Seeking review, however, is a prerequisite to petitioning the U.S. Supreme Court. ADF is clearly determined to get this issue back before the Supreme Court. It represents Arlene’s Flowers, whose petition is now pending, and it also represents a videography company in a case similar to Brush & Nibs, affirmatively litigating to get an injunction to allow the company to expand into wedding videos without having to do them for same-sex weddings. The district court’s ruling against them in that case is now on appeal in a federal circuit court. One way or another, it seems likely that this issue will get back to the Supreme Court before too long.
Tags: Alliance Defending Freedom, Arizona Chief Judge Winthrop, Arizona Court of Appeals, Brush & Nibs Studio LC v. City of Phoenix, compelled speech, equal protection, free exercise of religion, freedom of speech, gay weddings, invitations for gay weddings, invitations for same-sex weddings, Justice Anthony Kennedy, Masterpiece Cakeshop v. Colorado Civil Rights Commission, opposite sex weddings, Phoenix anti-discrimination ordinance, public accommodations, refusal to provide goods for same-sex weddings, refusal to provide services for same-sex weddings, same-sex weddings, sexual orientation disccrimination, sexual orientation discrimination in public accommodations, US Supreme Court, wedding stationery