Court applies Masterpiece Cakeshop ruling to uphold Ariz. LGBT ordinance

By : Chris Johnson OF THE WASHINGTON BLADE, COURTESY OF THE NATIONAL LGBT MEDIA ASSOCIATION
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A state appellate court on Thursday upheld a city non-discrimination ordinance in Arizona, citing the U.S. Supreme Court’s recent ruling in the Masterpiece Cakeshop case in the reasoning for the decision.

The court in a decision written by Arizona Court of Appeals Judge Lawrence Winthrop determines a non-discrimination ordinance in Phoenix barring anti-LGBT discrimination enacted in 2013 is valid under the U.S. Constitution.

“Prohibiting places of public accommodation from discriminating against customers is not just about ensuring equal access, but about eradicating the construction of a second-class citizenship and diminishing humiliation and social stigma,” Winthrop writes. “The least restrictive way to eliminate discrimination in places of public accommodation is to expressly prohibit such places from discriminating.”

The case was filed by Alliance Defending Freedom, an anti-LGBT legal group, on behalf of Brush & Nib, a for-profit business that sells pre-fabricated and design artwork for home décor, weddings and special events. The company is owned Joanna Duka and Breanna Koski, who call themselves devout Christians and sought a First Amendment exemption to the Arizona non-discrimination ordinance.

Even though the U.S. Supreme Court ruled narrowly in favor of Masterpiece Cakeshop this week in a similar case seeking to use the First Amendment to refuse service to LGBT people, that ruling wasn’t a major decision on the issue of religious freedom versus LGBT rights and includes language affirming non-discrimination laws.

The Arizona Court of Appeals invokes that language in the Masterpiece Cakeshop decision as well as other precedent to uphold the Phoenix ordinance.

“In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing appellants to refuse service to customers based on sexual orientation would constitute a ‘grave and continuing harm,’” Winthrop writes.

LGBT legal advocates said the ruling demonstrates LGBT non-discrimination protections are constitutionally valid and should still be enforced in the aftermath of the Masterpiece Cakeshop ruling.

Shannon Minter, legal director for the National Center for Lesbian Rights, said the Masterpiece Cakeshop decision “did not dilute anti-LGBTQ discrimination protections and in fact reaffirmed their importance.”

“With regard to race, sex, sexual orientation or any other protected trait, a business can decide what products it sells — but not to whom,” Minter said. “Today’s Arizona appeals court decision correctly relied upon Masterpiece Cakeshop to ensure that businesses understand that they cannot turn people away from the products or services they provide because of who they are or take actions equivalent to hanging a ‘no gays allowed’ sign in the window.”

Joshua Block, staff attorney with the American Civil Liberties Union, said in a statement the Arizona Court of Appeals “rightly ruled” in favor of the Phoenix non-discrimination ordinance.

“Importantly, the Arizona court also applied the Supreme Court’s Monday decision in Masterpiece Cakeshop here, affirming once again the importance of laws protecting the dignity of LGBT people in the public marketplace,” Block said.

Masen Davis, CEO of Freedom for All Americans, said in a statement the Arizona court “reaffirms what we heard from the Supreme Court earlier this week.”

“Religious freedom should be a shield, not a sword – it should never be cited as a justification for harming others,” Davis said. “We applaud Arizona’s state appellate court for getting it right and upholding equal protections for all residents as they go about their daily lives. Non-discrimination protections are critical for LGBTQ people to be able to fully participate in society.”

The Arizona Court of Appeals decision upheld a lower court’s ruling in the case in favor of the Phoenix non-discrimination ordinance, which was delivered last year.

Although the Arizona Court of Appeals generally agreed with lower court decision, the higher court did strike down a small portion of the non-discrimination ordinance that judges determined was vague and unenforceable.

The removed language in the ordinance barred discrimination in Phoenix that individuals would considered “unwelcome, objectionable, unacceptable [and] undesirable.”

But Winthrop emphasizes the bulk of the non-discrimination ordinance remains in effect because removal of that language “does not render the remainder of the ordinance unenforceable or unworkable.”

Despite the ruling in favor of the ordinance, the fight in the case isn’t over yet.

Jonathan Scruggs, senior counsel for Alliance Defending Freedom, said in a statement his organization intends to appeal the decision to the Arizona Supreme Court.

“Artists shouldn’t be forced under threat of fines and jail time to create artwork contrary to their core convictions,” Scruggs said. “The court’s decision allows the government to compel two artists who happily serve everyone to convey a message about marriage they disagree with. This contradicts basic freedoms our nation has always cherished.”

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