Business owners tell Supreme Court they don’t want to ‘celebrate’ gay marriage
PHOENIX – The legal question of when businesses can refuse to provide services to same-sex couples could come down to how the Arizona Supreme Court defines what is “celebratory language.”
Attorney Jonathan Scruggs, who represents the owners of the Brush & Nib Studio, said his clients do provide off-the-shelf items for weddings, like generic invitations, place cards and table numbers. And he told the justices on Tuesday that the women who do calligraphy also would not turn away gay clients who want them to design something else for gays, even down to invitations to a memorial for the same-sex spouse of someone else.
What they will not do, said Scruggs, is create anything that he said celebrates the wedding of a same-sex couple. That, he said, runs contrary to their religious beliefs that marriage is solely between one man and one woman.
And that, Scruggs said, eliminates all wedding invitations.
“All wedding invitations the studio creates contain celebratory text about the wedding,” he said. “And that is enough for this court to say, ‘You can’t compel that message.’”
But Eric Fraser, an assistant Phoenix city attorney, argued that Joanna Duka and Breanna Koski, the owners of the studio, are not being asked to celebrate anyone’s wedding.
He said they are in the business of designing wedding invitations and similar items. And he said the Phoenix anti-discrimination ordinance they are challenging simply says if you provide a service to the public, you can’t refuse that service to someone based solely on sexual orientation.
“Once Brush & Nib has decided to offer a particular type of invitation to the general public, the one thing it can’t do is when somebody calls making the request, they can’t have the sole test of whether they’re going to make the invitation be, ‘What sex is your spouse?’ or ‘What sex is your fiance?’” Fraser told the court.
“And if that’s the one thing they need to know before they decide whether to make the invitation or not, then it’s not about the message,” he continued. “That’s about who the person is.”
It is that issue that is the basis of the Phoenix ordinance, which makes it a crime to discriminate based on race, gender, religion or sexual orientation – and why the women want a declaration that they can’t be punished for refusing to make certain products for same-sex couples.
At the hearing Tuesday, several of the justices questioned Scruggs’ contention that the women were being forced to convey a message that runs contrary to their religious beliefs.
Chief Justice Scott Bales asked what’s the difference in designing a wedding invitation for Pat and Terry if it turns out that both are of the same sex. Bales wanted Scruggs to explain why it would be OK for the studio owners to turn the gay couple away, given that the invitations and other products would be identical, regardless of the gender of the two people who want to buy the items.
“It’s the context,” said Scruggs. “It’s the message that’s conveyed in that particular context.”