Court hears appeal: Do Phoenix wedding invitation designers have to serve gay couples?

Is Phoenix's nondiscrimination ordinance a "criminal law" that violates freedoms of religions and speech — or a necessary measure that protects minority groups against discrimination?

That was the topic of discussion inside a downtown Phoenix courtroom Monday morning as a duo of Christian artists appealed a lower-court decision upholding the Phoenix ordinance.

Joanna Duka and Breanna Koski, owners of Brush & Nib Studio and self-described evangelical Christians, sued Phoenix in 2016 over the part of the city ordinance that prohibits discrimination based on sexual orientation.

Duka and Koski create invitations and other handmade artwork for weddings and events. The artists — who hold the religious belief that marriage is between one man and one woman — do not want to design invitations or other custom artwork for LGBT couples because they believe it would be the equivalent of endorsing the marriage.

The artists also want to publish a statement on their website asserting that because of their religious convictions, they will design custom artwork only for heterosexual couples.

Anti-bias ordinance updated in 2013

Phoenix has had a nondiscrimination ordinance on the books since 1964, but the City Council expanded it to protect against sexual orientation and gender identity bias in 2013.

The ordinance bans discrimination in housing, employment and public accommodations, including privately owned businesses. Business owners and individuals who don’t comply can face criminal prosecution and a misdemeanor charge, with each violation punishable by up to six months in jail and a $2,500 fine.

No gay couple had requested the business' services when the artists filed the lawsuit with the support of Scottsdale-based Alliance Defending Freedom — a conservative legal group behind similar lawsuits challenging nondiscrimination ordinances across the country.

Alliance Defending Freedom staff said the artists have since received "some requests" for same-sex weddings, although court documents submitted by the city of Phoenix show the city does not believe Brush & Nib Studio has violated the ordinance and never has threatened to prosecute the owners.

In October, Maricopa County Superior Court Judge Karen Mullins rejected all of Duka and Koski's legal arguments and confirmed that the Phoenix ordinance does not violate Arizona's free speech and free exercise of religion laws.

Mullins also denied an earlier request to prevent Phoenix from enforcing the ordinance.

Duka and Koski appealed both decisions to the Arizona Court of Appeals.

Different views on invitation design

On Monday morning, a three-judge appeals court panel watched the lawyers for the city and the artists paint divergent pictures of the legal issues at play in the case.

Jonathan Scruggs of Alliance Defending Freedom argued that Duka and Koski would have no problem selling premade artwork to LGBT customers, but they just "won't promote same-sex marriage" by designing custom wedding materials for their nuptials.

Writing the names of two men or two women on an invitation, or producing specialized artwork for the express purpose of a same-sex wedding would be the same as endorsing the wedding, Scruggs said. Forcing the artists to make these products would be "compelled speech" and illegal, he said.

He said the women's actions are not discriminatory because their decision not to serve LGBT customers is based on the message they're being asked to create, not the sexual orientation of the individual requesting the services.

For example, if a heterosexual woman came to the Brush & Nib Studio and asked the artists to design invitations for her son's same-sex wedding, he said they also would deny that request.

"It's not who walks in the door, it's the message they're asked to create," Scruggs told the judges.

He said the artists' decision to not create specialized artwork for same-sex weddings is no different than a Muslim printer refusing to print materials for a synagogue, a lesbian web designer refusing to create a website condemning gay rights or an atheist signer declining to perform at an Easter service.

Attorney Eric Fraser, who argued on behalf of Phoenix, disagreed. He said Duka and Koski's opposition is about "who is getting married — not the message."

He said the women decide whether to serve a couple based solely upon their gender — not the message they want to convey on the invitations.

The artists would be allowed to decline a request by a same-sex couple to design an invitation or piece of artwork that says something positive about same-sex marriage, just like they could say "no" to a request they find "tacky" like a motorcycle-themed invitation, Fraser said.

What they cannot do is deny a same-sex couple the same basic invitation they would provide to a heterosexual couple just because they request two male names or two female names, he said.

Fraser used the Muslim printer example to illustrate his point: The printer could refuse to print a sign that said, "Jesus is Lord," for a Christian customer because he would not produce that item for anyone. But he could not refuse to print birthday cards for Christian children if he prints the same cards for Muslim children.

Supreme Court could weigh in first

During the oral arguments, Judge Jennifer Campbell asked both attorneys why the court should make a decision on this case when a similar case is awaiting a U.S. Supreme Court decision.

In December, the Supreme Court heard oral arguments in a dispute between a same-sex couple and a Colorado cake designer who refused to serve them. Masterpiece Cakeshop also was represented by the Alliance Defending Freedom.

A decision is expected this summer.

Attorneys for both sides told Campbell that the decision in the Colorado case may not answer all of the legal questions in the Brush & Nib Studio case because it deals with a different form of artistic expression and a different set of circumstances.

The judges took the Brush & Nib case under advisement and are expected to provide a written decision in the coming months.

Artist speaks publicly after court

For the first time since they filed the lawsuit, Duka, accompanied by her business partner, spoke publicly about the case in a news conference after the oral arguments.

Duka reiterated what her lawyers had argued — that the custom artwork they create comes from their "hearts and souls."

"Artists invest so much of themselves in what they create. The government shouldn't control those expressive decisions," she said.

Duka said she hopes her lawsuit sets a precedent that protects creative speech.

"We brought this case to protect this freedom not just for ourselves but for all artists," Duka said.

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