Free Speech Or Discrimination? A View From Arizona, Colorado

By Will Stone
Allison Sherry, Colorado Public Radio
Published: Thursday, February 7, 2019 - 11:36am
Updated: Friday, February 8, 2019 - 6:29pm

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Jonathan Scruggs
Will Stone/KJZZ
Jonathan Scruggs is an attorney with the Scottsdale-based Alliance Defending Freedom, a Christian law firm that is representing Brush & Nib Studio. Scruggs speaks in Phoenix on Jan. 22, 2019.

A central question related to LGBTQ rights may again be headed to the U.S. Supreme Court: Can businesses turn away customers because they object to what they’re asking for — weddings invitations or a cake?

Across the country, lawsuits are seeking to clarify when a business owner’s freedom of speech outweighs legal protections against discrimination.

You probably remember the baker Jack Phillips, he was the guy who declined to bake a wedding cake for a gay couple in Colorado several years ago and his case went all the way to the Supreme Court.

But the court’s decision was narrow. It applied only to the baker and not necessarily future cases.

Phillips hasn’t even re-started making wedding cakes, but he is back in court fighting with the Colorado’s civil rights commission. Officials found he again discriminated after he declined to bake a cake with a blue exterior and a pink interior. This time, the cake was supposed to celebrate a gender transition.

“I believe that God made male and female, and we don’t get to choose that and we don’t get to change that,” Phillips said during a recent interview at his shop in a Denver suburb.

So, Jack Phillips is suing the state again.

“And it’s wrong for the state to force me to create artistic products,” he said.

Colorado isn’t the only place where this legal fight is playing out.

Joanna Duka
Will Stone/KJZZ
Joanna Duka, one of the owners of Brush & Nib Studio, speaking with supporters on the steps of the Arizona Supreme Court following oral arguments on Jan. 22, 2019.

A crowd holding purple posters with the slogan “Create Freely” greeted Joanna Duka and Breanna Koski when they emerged from the Arizona Supreme Court last month.

“As Christians, our faith guides everything we do,” Duka told the crowd of supporters.

She and Koski run Brush & Nib Studio, a Phoenix wedding invitation business.

“The government should never be in the business of controlling how artists make creative decisions,” she said.

Duka said Phoenix’s ordinance prohibiting discrimination on the basis of sexual orientation does that by forcing her business to make invitations celebrating same sex weddings, which is against her religious beliefs.

Here is how the Colorado and Arizona cases are similar: they are pitting First Amendment protections of religious freedom and freedom of speech against a state or city’s anti-discrimination laws that protect LGBTQ people.

But when does an invitation or a cake even qualify as free speech?

Actually, the Supreme Court’s Colorado cake decision never answered that question.

“Only two justices would have held that the baking of a custom wedding cake is protected as speech by the First Amendment,” said Kaipo Matsumura, who teaches law at Arizona State University.

“The other justices refrained from commenting on the issue and just reserved that question for future decisions in other cases,” Matsumura said.

The case has divided powerful forces in Arizona: the state’s attorney general and Republican leadership are siding with the business and major companies with the city of Phoenix.

In the Masterpiece Cake ruling last year, the justices never dealt any blows to Colorado's anti-discrimination law. The state's new Democratic attorney general Phil Weiser is defending the law in the latest suit.

“Equality for all is something that we here in Colorado are committed to, the laws will be enforced,” Weiser said. “We will just have to play a few more innings before we win this game.”

The same influential Christian group is challenging nondiscrimination protections in both states. The Alliance for Defending Freedom has been tremendously successful nationally with similar cases, logging nine Supreme Court wins in seven years.

They argue these business owners are not discriminating; they just can’t be forced to convey a certain message.

Brendan Mahoney
Will Stone/KJZZ
Brendan Mahoney is one of the architects of a Phoenix law that prohibits discrimination based on sexual orientation.

Jonathan Scruggs, an attorney with the Alliance, is representing the Phoenix wedding invitation business.

“A Muslim artist shouldn’t be forced to celebrate Easter — because these messages violate their core convictions,” Scruggs said.

In the Colorado case, the high court did find that Colorado’s civil rights commission showed animus toward religion and the cake maker’s lawyers said that hasn’t changed because they are going after him again in the gender transition cake case.

But those who fought for these anti-discrimination laws remember what life was like before they existed.

In Phoenix, lawyer Brendan Mahoney said he’d routinely get calls from people fired from jobs or denied a room because of their sexuality.

All he could tell them?

“Your best solution is to get involved and change the law,” Mahoney recalled.

That eventually happened in 2013 when the city council passed its ordinance.

Mahoney said a central part of Phoenix’s argument is that a court can’t carve out an exemption for LGBTQ people “and not at the same time open the door to people saying ‘oh we don’t serve blacks, or we don’t serve pregnant women, or we don’t serve Jews.’”

Whether it’s a case about wedding invitations in Arizona, a gender transition cake in Colorado, or a similar case somewhere else, all the parties involved believe that eventually the U.S. Supreme Court will take up the issue once again.