No, Businesses Cannot Exempt Themselves From Civil Rights Laws

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December 21, 2018
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Lambda Legal today, in a friend-of-the-court brief, urged the Arizona Supreme Court to affirm an appellate court ruling that denied a Phoenix business’s request that it be exempt from the City of Phoenix anti-discrimination ordinance and instead be allowed to refuse service to same-sex couples because they claim it violates their religion to treat same- and different-sex couples equally.

The business, Brush & Nib Studio, is represented by Alliance Defending Freedom (ADF), an anti-LGBT legal organization that has been designated a hate group by the Southern Poverty Law Center. This is one of several cases in state and federal courts seeking to create a religious right to discriminate.

“In June, the Arizona Court of Appeals issued a thoughtful, thorough and well-reasoned ruling that the operation of a stationery store, including designing and selling customized wedding merchandise, is not expressive conduct and therefore not entitled to First Amendment free speech protections,” Lambda Legal’s Law and Policy Director Jennifer C. Pizer said.

“The Phoenix ordinance does not regulate speech – in fact the Court of Appeals specifically noted Brush & Nib’s owners are free to post a sign detailing their religious beliefs or a disclaimer that their doing business with same-sex couples does not constitute an endorsement of their relationships.

“The Court of Appeals’ ruling was consistent with decisions by courts across the country that have similarly refused to create a new religious right for businesses to exempt themselves from civil rights laws,” Pizer added.

“As we argued in our friend-of-the-court brief to the U.S. Supreme Court last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission, it’s not about cake or stationery or flowers: it’s about protecting LGBT people and families from being forced to endure bigotry and abuse in countless places, from fertility clinic to funeral home, and everywhere in between.”

Phoenix expanded its non-discrimination ordinance in 2013 to include sexual orientation and gender identity. Three years later—after Lambda Legal had invalidated Arizona’s exclusion of same-sex couples from marriage, and soon after the U.S. Supreme Court struck down state marriage bans nationwide in the historic Obergefell v. Hodges decision—the proprietors of Brush & Nib, Joanna Duka and Breanna Koski, represented by ADF, filed suit in Arizona state court seeking an exemption from the Phoenix ordinance, even though no same-sex couple had ever sought their services.  

To date, they still have never been asked to produce wedding-related goods for a same-sex couple.

In October 2017, a Maricopa County Superior Court judge denied Brush & Nib’s effort to thwart the Phoenix ordinance. ADF then appealed to the Arizona Court of Appeals, which affirmed the Superior Court ruling in June 2018. Lambda Legal submitted a friend-of-the-court brief to the appellate court as well.

The case is Brush & Nib v. City of Phoenix, and it is one of at least four cases active in state and federal courts in which businesses are claiming a religious license to discriminate and in which Lambda Legal is involved either through direct representation, or as amicus.

These include:

  • Klein (dba Sweetcakes by Melissa) v. Oregon Bureau of Labor and Industries, in which Lambda Legal represents the lesbian couple denied service by the bakers, the Oregon courts rejected the bakers’ religion and speech defenses and awarded damages to our clients, and the bakers have petitioned the U.S. Supreme Court to review the Oregon courts’ rulings
  • Ingersoll and Freed v. Arlene’s Flowers, in which the U.S. Supreme Court reversed and sent back a Supreme Court of Washington ruling in favor of a gay couple denied service by a florist, and Lambda Legal is supporting the couple as a friend of the court; and
  • Cervelli v. Aloha Bed & Breakfast, in which Lambda Legal represents a lesbian couple denied lodging at a Hawai`i B&B, the Hawai`i courts have rejected the business owner’s religion and speech defenses, and the owner is seeking U.S. Supreme Court review.

Lambda Legal’s Law and Policy Director Jennifer C. Pizer authored the amicus brief for Lambda Legal.

Read about Lambda Legal's work fighting religious exemptions here.