Reactions Mixed After Brush & Nib Ruling

By Lauren Gilger, Steve Goldstein, Bret Jaspers
Published: Tuesday, September 17, 2019 - 11:47am
Updated: Tuesday, September 17, 2019 - 5:31pm

Audio icon Download mp3 (11.52 MB)

Joanna Duca Brush & Nib
Jimmy Jenkins/KJZZ
Joanna Duca, co-owner of Brush & Nib.

STEVE GOLDSTEIN: But first, the Arizona Supreme Court is allowing a calligraphy studio to refuse to sell their custom wedding invitations to LGBTQ couples. It's a blow to Phoenix's anti-discrimination ordinance. The decision was 4-3, and the majority said the ruling applied only to this company and only to their wedding invitations. But the decision raises all sorts of questions. We'll get some legal analysis in just a few minutes. But here to report on the reaction is KJZZ's Bret Jaspers. Good morning.

BRET JASPERS: Good morning.

GOLDSTEIN: So the people who brought the case with the owners of Brush & Nib Studios, they lost in lower court.

JASPERS: That's right. The two owners of Brush & Nib are Joanna Duka and Breanna Koski. They say making their wedding invitations is an artistic act and they shouldn't have to make custom invitations for same-sex couples because that would be compelling speech that's against their religious beliefs. The majority of justices on the state Supreme Court agreed with them. Here's Duka.

JOANNA DUKA (audio): Breanna and I are thankful and relieved that the court has upheld, not just our freedom, but the freedom of other speakers to choose what they say and what they don't say.

GOLDSTEIN: So what does this mean then for Phoenix's anti-discrimination ordinance?

JASPERS: Well the mayor and the city's lawyer said this was a narrow ruling, and the ordinance still stands. Here's a direct quote from the decision: "Our holding is limited to plaintiff's creation of custom wedding invitations that are materially similar to those contained in the record. We do not recognize a blanket exemption from the ordinance for all of plaintiff's business operations.".

GOLDSTEIN: So this is a narrow ruling by the court, then?

JASPERS: Well it seems so, but I'm really curious as to what your legal guest will say. The dissenting judges did not agree that this would only affect this one business. In fact, they thought this opened the door to discrimination in many other contexts. And the attorney for the calligrapher is Jonathan Scruggs, also said the analysis was broad. He's with the Christian Legal Group Alliance Defending Freedom.

GOLDSTEIN: Ok, so that's the group based in Scottsdale that represented the Colorado baker in a similar recent Supreme Court case.

JASPERS: Yeah, and they're also defending a florist in Washington state who refused a gay couple. Here's what Scruggs said about the ruling being brought.

JONATHAN SCRUGGS (audio): The analysis the court put forth is broad. Protecting the freedom of speech and freedom of religion. So that's what the ruling did. It protected the speech, as Phoenix acknowledged, that what our clients do is create speech.

JASPERS: But I talked to Brendan Mahoney. He's a lawyer who actually co-wrote Phoenix's anti-discrimination ordinance. His view is that this is a case of a certain group being denied, not the case of a message that's being compelled.

BRENDAN MAHONEY (audio): That was part of the question, is writing an invitation free speech or not? And if it is free speech, even free speech has its limits. In this case, it isn't a particular message. It's a broad class of people that are being discriminated against. And that's the distinction.

JASPERS: So Mahoney told me that it isn't that someone is coming to the calligraphers and asking them to write a different message than they typically write. It's asking them to provide a service that they're providing to the rest of the public and the calligraphers say each wedding invitation is unique and their unique artistic vision is at play. So that's why they say the city was compelling speech.

GOLDSTEIN: So how did Mayor Kate Gallego respond?

JASPERS: Well she wouldn't say, Gallego wouldn't say whether or not she's worried about other businesses bringing similar cases against the city. She framed it as part of a long-term struggle against discrimination.

KATE GALLEGO (audio): This case was never about one business refusing to acknowledge the humanity of our LGBTQ community. It was about whether we accept discrimination in our community. The ordinance is not just something nice to have on paper. It's something we have seen been used to lodge complaints by community members who have, who feel they have been unfairly targeted.

GOLDSTEIN: Bret, finally, this was in state court. Are there federal court appeals possible here?

JASPERS: Well, the city's lawyer kept repeating that they're reviewing the decision and reviewing their options. He wouldn't really say what the next steps even were.

GOLDSTEIN: KJZZ's Bret Jaspers, thank you.

JASPERS: You're welcome.

LAUREN GILGER: And now for a legal analysis of the case, we are joined by Professor Gregg Leslie, executive director of the First Amendment clinic at ASU's law school. Good morning, Gregg.

GREGG LESLIE: Good morning.

GILGER: OK. So let's start with that question that Bret brought up there. So the court says, the majority of the court said this was a narrow ruling, some of the dissenting judges disagreed. How narrow is this?

LESLIE: Well, it seems like it has to be a fairly narrow ruling. They very carefully parsed through whether the writing of an invitation is expressive, is speech basically. And they seem to have narrowed this to cases where somebody is expressing their opinion about something. Now, to agree with the outcome, you'd have to believe that a calligrapher, or, in the other case, a cake decorator, is actually communicating their thoughts on a wedding, to agree with the outcome, it seems. I've never thought of a calligrapher in that way but maybe some people do. I've never received a wedding invitation and thought, "Oh great, the calligrapher approves of this wedding."

GILGER: But could you see this case being used to protect a different company who decided not to sell its different sort of artistic products to a gay couple or somebody else that they didn't want to?

LESLIE: Well, you're kind of touching on an important distinction. If it's about just selling a product to a couple, they would still say that falls, that is, the law is applicable there. If they're compelled to create speech, then yes, other businesses would probably object on the same grounds. It's that idea of being compelled to say something that's critical.

GILGER: Yeah. So this is a case, like Bret mentioned, that is being carried out across the country. We talked a lot about the Colorado baker case, we've covered that on The Show, and there's another one in Washington. The thought is that one of these cases will end up at the Supreme Court at some point. What are your views on that, and could it be this case?

LESLIE: Well it's strange, I don't know if the Supreme Court has an appetite to take these cases. When they considered Masterpiece Cake Shop, they really went out of their way to say "we don't want to consider this right now." Even after they took it, then they punted it back for the strangest of reasons. So I'm not sure if they're anxious to take it, and a further complication is that the U.S. Supreme Court won't review a state constitutional decision. So if the state Supreme Court decided it purely on First Amendment grounds, the U.S. Supreme Court might take it. But this court went out of its way to talk about the Arizona constitution, and they kind of pegged it to the Arizona constitution and the U.S. Supreme Court won't review the Arizona constitution.

GILGER: Right. Ok, so I want to, in the last few minutes we have here, dig into the First Amendment issue right at hand. So, what is considered free speech, religious speech, and what is not, in general, in these cases? What did the lower courts rule that ruled in favor of the city's ordinance?

LESLIE: Yeah. And I think there is no solid answer to that. That's why cases like this go to appellate courts. I would not have thought that writing out an invitation when, it's somebody else's wedding invitation, you're not really expressing anything, you're not welcoming people to a wedding, you're just providing the artistic touch on an invitation. I would not have thought that was speech in the sense that you could decide who or who not to work with based on that. So there is no clear standard, but you have to look at how much expression is involved in something and whether they're actually trying to communicate something. So, regardless of how it came out in this case, I think there are a lot of cases where somebody really engaged in artistic output could say that their rights are violated by having to comply with a law like this. And those will be tricky situations and there's no clear bright line rule that will tell us which ones, how those will come out at any particular time.

GILGER: Is this common that nondiscrimination ordinances like this come into conflict with First Amendment issues?

LESLIE: Well you saw it all the time, 50 years ago. In the 60s, when there were groups saying they didn't want to have to let African Americans stay in their hotels or sit at their lunch counters, and they would often try to claim Christian beliefs that justified that. So we saw it all the time then, we thought that era was over, I think. But then when cities started passing gay rights measures, and a lot of religious groups feel that's objectionable, it's kind of arisen again in this context, and it seems to be limited to this context.

GILGER: Alright. That's Gregg Leslie, executive director of the First Amendment clinic at ASU's law school. Gregg, thank you for coming in.

LESLIE: Thank you.

 

More Stories From KJZZ

If you like this story, Donate Now!