UPDATE, September 16, 2:13 p.m.: On Monday, the Arizona Supreme Court ruled 4-3 that the City of Phoenix cannot compel business owners to make wedding invitations for same-sex couples against their religious beliefs.
The Arizona Supreme Court will soon issue a ruling on a case brought by two evangelical Christian artists, Joanna Duka and Breanna Koski, who want to be able to refuse to make custom wedding invitations for same-sex couples.
Unfortunately for Duka and Koski, the city of Phoenix has an ordinance prohibiting them from doing so—and from posting a “We don’t serve your kind here” sign in their store, Brush & Nib Studio. So in 2016, they filed a lawsuit asking the court to block the city from applying the law to them—even though no same-sex couples had asked them to design a wedding invitation in the first place.
The city of Phoenix is one of several cities that enacted ordinances to provide broader protections against discrimination in places of public accommodations—places like restaurants, retail stores, hotels, theaters, gyms, and public transportation—than those offered by the state of Arizona, which only prevents discrimination on the basis of race, color, religion, sex, national origin or ancestry.
In Phoenix, it is unlawful to “refuse, withhold from, or deny to any person … accommodations, advantages, facilities, or privileges thereof … because of sexual orientation.” It is also unlawful to “display, circulate, or publicize or mail any … communication which states or implies that any … service shall be refused … because of sexual orientation… or that any person, because of… sexual orientation… would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”
In other words, if you run a business in Phoenix, you can’t refuse to provide a service to gay people because they’re gay. And despite all the bluster in their complaint about God and running their business in keeping with their religious faith, that’s exactly what Duka and Koski want to do.
That’s bigotry, no matter how much you claim your love for God permits it.
Duka and Koski lay it on pretty thick in their complaint. The factual background section of the complaint begins, “On December 7, 1996, in an upstairs room of her grandmother’s Sacramento area home, a three-year-old Joanna Duka asked her mother how she could accept Jesus into her heart.” The description of Breanna Koski’s religious journey is similarly overwrought—as if describing at length these women’s relationships with God somehow excuses the fact that they want to discriminate against same-sex couples.
Their complaint even alleges that they love and respect their customers enough to be honest with them about the fact that they refuse to create wedding invitations for same-sex weddings: “Another way Joanna and Breanna honor God is by loving and respecting their customers. Because Joanna and Breanna believe that God created everyone, they respect everyone, create art for anyone, and are upfront and honest with everyone. As part of this transparency and honesty, Joanna and Breanna must tell customers what they can and cannot create for them.”
When Duka and Koski refuse to create wedding invitations for gay couples simply because it “discredits Him,” they’re (allegedly) doing it lovingly and respectfully—as if that makes it better.
As frustrating as they are, Duka and Koski’s flowery claims about their religious beliefs compelling them to discriminate against same-sex couples are not unique. They are part of a nationwide crusade by evangelical Christians to weaponize the First Amendment and religious freedom to defend anti-gay bigotry.
It is part of what I like to call the Masterpiece Cakeshopping of America, after the U.S. Supreme Court’s wretched decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case involved a baker named Jack Phillips who refused to bake a cake for a same-sex couple. In that ruling, then-Justice Anthony Kennedy, writing for the Court majority, ignored an opportunity to issue a clear ruling that religion cannot be used as an excuse to discriminate against LGBTQ people in the marketplace. Instead, he punted after concluding that the Colorado Civil Rights Commission had been unusually hostile towards religion when it pointed out (correctly) that throughout history, religion has been used to promote bigotry and oppress people.
But it didn’t end with cakes. Most of the lawsuits relate to retailers in the wedding industry refusing to serve same-sex couples: refusal to take photographs of same-sex weddings (Elane Photography v. Willock out of New Mexico); refusal to provide custom arranged flowers (Washington v. Arlene’s Flowers out of Washington state); refusal to rent spaces for same-sex weddings (Gifford v. McCarthy out of New York); and refusal to make custom wedding cakes for same-sex couples (Klein v. Oregon Bureau of Labor and Industries, which is in the middle of briefing before the Supreme Court). In each of these cases, courts ruled that refusal to serve LGBTQ customers was unlawful under the anti-discrimination statute at issue. (The Supreme Court reversed Colorado’s ruling in Masterpiece Cakeshop on procedural grounds, rather than on the merits of the case.) And in the vast majority of them, the plaintiffs are represented by the conservative evangelical law firm Alliance Defending Freedom (ADF), which has led the charge in the Christian crusade to deny LGBTQ people their rights and promote bigotry against them.
Plaintiffs in these cases have insisted that they are not bigots; they are simply exercising their freedom of religion. They argue that state efforts to ensure that LGBTQ people have the right to access services are tantamount to an infringement on that freedom. They just want to operate their businesses and remain faithful to their religious beliefs—including the belief that marriage is between a man and a woman.
Remarkably, Duka and Koski argue that they are simply “politely declining to create artwork for same sex weddings,” as if the manner in which they practice their bigotry—politely as opposed to maliciously—makes a legal difference.
But it is still bigotry at its most vile: the “we don’t serve your kind here”-style bigotry that civil rights activists in the 1960s fought against. Indeed, when it comes to the law, there is no difference between evangelicals in the 21st century using religion to justify discrimination against LGBTQ people and evangelicals in the 18th, 19th, and 20th centuries using religion to justify imperialism, slavery, and Jim Crow.
When one of the Colorado Civil Rights commissioners in Masterpiece Cakeshop said this—
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
—they were absolutely right.
Even if, as Kennedy suggested, the statement could be read to be hostile to religion, that doesn’t make it any less accurate.
As the Arizona Court of Appeals noted in its ruling in June 2018, Duka and Koski “are not the first to attempt to use their religious beliefs to justify practices others consider overtly discriminatory.”
To name just a few particularly notable examples, in 1967 in Loving v. Virginia—the landmark case that ultimately would result in a Supreme Court issuing a ruling that anti-miscegenation laws are unconstitutional—the trial court sentenced the Lovings to jail because of their interracial marriage, and said that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” (That “interference” being, of course, chattel slavery—but that’s a topic for another time.)
And in 1983, the United States sued Bob Jones University, a fundamentalist Christian school, and won: The Supreme Court ruled that the school, which used religion to justify banning interracial relationships on campus, could no longer receive tax-exempt status. A spokesman for the university said in 1998 that “God has separated people for his own purposes. He has erected barriers between the nations, not only land and sea barriers, but also ethnic, cultural, and language barriers. God has made people different from one another and intends those differences to remain. Bob Jones University is opposed to intermarriage of the races because it breaks down the barriers God has established.”
Telling the truth about the ways in which religion has been wielded to oppress people isn’t hostile to religion. It’s simply the truth.
Ultimately, the sort of discrimination demonstrated by Duka and Koski is a moral and social wrong. The Supreme Court used this phrase to describe bigotry in 1964 in Heart of Atlanta Motel v. United States, in which the United States sued a motel in Atlanta in order to block it from discriminating on the basis of race under Title II of the Civil Rights Act of 1964. (Title II prohibits discrimination on the basis of race, color, religion, or national origin in places of public accommodations.)
That “moral and social wrong” description is as equally applicable to discrimination on the basis of sexual orientation as it is to discrimination on the basis of race.
In Masterpiece Cakeshop, the Court majority, citing a Supreme Court case called Newman v. Piggie Park Enterprises, noted that while “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” (In Piggie Park, the Supreme Court rejected a barbecue restaurant owner’s attempt to use religion to justify his refusal to serve Black people in his restaurants.)
Quite simply, there is no justification for permitting discrimination in public accommodations against LGBTQ people. As Lambda Legal pointed out in the amicus brief it submitted to the Arizona Supreme Court, “the law must remain crystal clear: each person’s religious liberty ends where legally prohibited harm to another begins.”
It remains to be seen whether or not the Arizona Supreme Court will side with the city of Phoenix, as both the lower court and the appellate court have done. The court heard oral arguments on January 22 and is expected to issue a ruling soon. But no matter which way the court rules, it is clear that this case, and all of the cases like it, are an affront to equality and the promise of liberty and justice for all. And should the Arizona Supreme Court side with Joanna Duka and Breanna Koski and enshrine into their state constitution legal discrimination against LGBTQ people, then God help us all.