On Monday, the Arizona Supreme Court decided an important case on commercial services and same sex weddings. The decision, 4-3, can be found this link. The context of that decision, Brush & Nib Studio v. City of Phoenix, was that Brush & Nib declined to provide calligraphic services for same sex weddings. The business is owned in partnership by two religious Christians who believe that same sex marriage is wrong. The business provides handmade, individually designed wedding materials -- invitations, notice, and so on. They decline to provide the services for same sex weddings. They sued the City of Phoenix to prevent enforcement of Phoenix's anti-discrimination ordinances. Brush & Nib lost at the trial court, and before the Court of Appeals, but prevailed, in significant part, before the Supreme Court. Relying on the Arizona Constitution and the state Freedom of Religion statute, the Supreme Court held that Brush & Nib could decline to provide services to same sex weddings. There is a limitation, however, in that the religious protection extended only to special created materials, substantially similar to those in the appendix. (I think it not a limit for Brush & Nib because almost everything they do is captured there. But it may be a real limit for others seeking the same treatment, and clearly is so intended, whether or not it is a workable standard.).
There are ways in which the case echoes Masterpiece Cakes. It takes account of that decision and the decisions by the Washington and New Mexico Supreme Courts, although Arizona rejects the analyses of its sister states. One piece that is similar to the Masterpiece Cakes case is that in both that and this case, the business testified, without contradiction, that it did not refuse service based on sexual orientation and that it would refuse to provide services for a same sex wedding without regard for the sexual orientation of the customer. The Arizona dissenters thought that a fraud, or to be less polemical, were unpersuaded that there was a line to be drawn there. In refusing to provides services for a same sex wedding, the businesses necessarily were refusing service on the basis of sexual orientation. The dissenters in both cases took the line that refusal of service for same sex weddings was indistinguishable from refusing service for inter-racial marriages, and the latter is clearly barred by law (refusing service). I am not sure how the Masterpiece majority thinks of the purported line, but the majority in Arizona did not accept that there was no line. For them, there is a difference between refusing service because of sexual orientation and refusing to provide services for a same sex wedding. (The arguments in the Arizona opinion are state law arguments -- they run from the state Constitution which has broader language on speech and religion protections than does the US Constitution. I want to come back to that another day.)
Is there a defensible line where the Arizona majority drew it? Is refusal to service a same sex wedding indistinguishable from refusing service because of sexual orientation? For lots of reasons, one can see an affirmative response. The analogies to race are tremendous pressure in that direction. But I think it is harder question really. Assume that there is some significant artistic expression involved in the calligraphic work. The evidence says that they provide services without regard to sexual orientation -- so Brush & Nib provide their services for different sex weddings when purchased by one with same sex orientation. There is no inquiry about sexual orientation of the purchaser; no inquiry about the sexual orientations of the to-be-wedded people in different sex weddings (gay men and lesbians still get married to other sex partners). That is different than the race cases. There, service was refused on the basis of (perceived) race of the purchaser. It was a blanket refusal. These cases aren't. I am not sure if it makes a difference in the end, but it complicates things. The refusal is not, or not as easily characterized as, an expression of contempt for those refused, there is no air of 'taint' attached to service here that was throughout and strong in the race case. We do not need to doubt that Brush & Nib have no ill-will based on sexual orientation. At least the refusal of service does not express hatred or contempt or the like. It is a religious view. Well, imagine the issue is abortion rather than same sex wedding, and how courts treat refusal to pay insurance that might cover abortions, or refusals to provide accurate or truthful counseling information about abortion. The judgments made about the participants are, I find, complicated.
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