Community dialogue explores limited defeat for equal rights at the Arizona Supreme Court
Reviews for the 110-page Arizona Supreme Court ruling on a stationery company’s right to discriminate against same-sex couples were overwhelmingly negative at a community dialogue held in Trinity Episcopal Cathedral on Wednesday evening.
Much more popular was when Molly Brizgys, a senior staff attorney for the ACLU Arizona, pointed out the disingenuousness of the “legal fictions” used by the slim Court majority to attempt to justify its position. The 4-3 decision could have national consequences were the City of Phoenix to attempt an appeal, though this seems unlikely according to Brizgys. The ruling left the City of Phoenix’s anti-discrimination ordinance in effect, save for the sole exception of custom wedding invitations produced by Brush and Nib Studio (BNS), which is run by Joanna Duka and Breanna Koski.
The panel was moderated by Angela Hughey, president of One Community, a coalition of socially responsible businesses, organizations, and individuals.
One Community organized the event, which also featured Daniel Hernández Jr, a member of the Arizona House of Representatives and chair of the LGBT Caucus; Devney Preuss, president and CEO of Downtown Phoenix Inc.; and Reverend Troy Mendez, dean of the Trinity Episcopal Cathedral.
Panelists and community members expressed both frustrations with the decision and resolve to continue defending the freedom of people to not be discriminated against by businesses.
The Arizona Supreme Court decision overruled multiple lower courts in what the panel described as a limited victory for BNS and the Alliance Defending Freedom (ADF), a rightwing non-profit with an annual budget in excess of $50 million. The ADF has been identified by the Southern Poverty Law Center as an anti-LGBT hate group. Brizgys explained the decision was only a limited victory for anti-LGBT forces because the Court rejected the request of BNS and the ADF to strike down the anti-discrimination ordinance in its entirety. “They wanted to say [the ordinance] was facially unconstitutional. That didn’t happen and I think that’s really important,” Brizgys said. “The ordinance stands."
First passed in 1964, the ordinance was expanded to protect people against discrimination based on sexual orientation, gender identity and disability status by a 2013 vote of the Phoenix City Council. BNS wanted to state on their company website that they refuse to offer the same services to homosexual couples that they do to heterosexual ones. In 2016, BNS and the ADF challenged the ordinance in court, despite the fact no same-sex couples ever requested their services. As one community member noted during the meeting, this was one of many such “test cases” bankrolled across the U.S. by the ADF and its network of ultra-rich rightwing Christian nationalist donors.
The ADF also financed the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, which saw a baker refuse to provide a cake for a same-sex wedding. In 2018, the U.S. Supreme Court punted on the central issue of that case: whether businesses can discriminate against consumers using religious justifications. The Arizona Supreme Court’s recent majority opinion seemed to echo this incremental acquiescence to intolerance.
Neither Arizona nor the Federal government has passed laws to protect people from discrimination because of their sexuality or gender identity, which is why cities such as Phoenix, Tempe and even Winslow have stepped in to fill the gap. Representative Hernández told the crowd that the possibility of updating Arizona’s nondiscrimination law is unlikely in the immediate future. There are some positive developments he pointed to, such as the support for the bill provided by Republican Senators Kate Brophy McGee and Heather Carter. “The [Arizona] House is not a place where bipartisanship has been seen,” Hernández said. “It’s really difficult at times, I think, to get other Republicans on board because it’s really difficult to be the first. That’s why when Senator Brophy McGee was the first one to sign onto the bill when I sponsored it in 2017 it was a huge win.”
The panel discussed concerns for how the ruling could potentially impact Arizona’s ability to attract national sporting events and convince businesses to relocate or expand operations in the state. Following the passage of S.B. 1070 in 2010, Arizona missed out on around $120 million worth of booked event-related business, according to Hughey. In 2014, a bill that would have allowed businesses to deny service to LGBT consumers, S.B 1062, was vetoed by the governor due to opposition from groups like One Community and an overwhelming number of businesses. If the bill had been signed into law, it could have impacted Phoenix’s bid to host the 2015 Super Bowl. The NCAA requires cities hosting championships to detail local anti-discrimination laws and provisions for refusal of services.
The Arizona Supreme court ruling alone may not be enough to throw the state out of contention for the 2023 Super Bowl or other events, but it could put Arizona at a competitive disadvantage against California, Nevada, Colorado, and New Mexico, which all have laws protecting people from discrimination due to gender identity and sexual orientation. “When we talk about the economic impact of Super Bowl 2015, it’s a $721 million impact for the state. College Football National Championship was $240 million and the Final Four was in the $400 millions,” Preuss said. “That is what you jeopardize losing.”
The panel discussed the importance of upcoming elections, especially given the recent tilt rightward of the Arizona Supreme Court.
The only Democrat on the Court, Chief Justice Scott Bales, recently stepped down, though not before the BNS case. Governor Doug Ducey filled the vacancy by appointing Bill Montgomery, who as county attorney for Maricopa County withheld free legal aid for same-sex couples trying to adopt while providing it to opposite-sex couples.
The dissenting opinion recognized the inherent tension between liberty and equality posed by anti-discrimination laws. However, it found when it comes to public accommodations, equality prevails. “Through years of hard work and perseverance, protections like the Ordinance have been put in place to ensure that we do not repeat the denials of access and opportunity that plagued our state in its infancy,” the dissenting opinion read. “This case, sadly, illustrates that our progress toward equality has been tortuous and incomplete. Despite today’s mistaken holding, our constitutions and laws should not entitle a business to discriminatorily refuse to provide goods or services to customers whom the business disfavors.”