Constitution Week: 1st Amendment & The Courts
Contributed to TLB by: KrisAnne Hall, JD
Constitution Week continues as we look at a current Supreme Court case and see what it means for Religious Liberty when a Christian business sues the City of Phoenix over an ordinance compelling them to operate outside their conscience.
Watch this revealing presentation …
JUSTICE GOULD authored the opinion of the Court, in which JUSTICES BOLICK, LOPEZ, and PELANDER (RETIRED) joined. JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES (RETIRED), joined by VICE CHIEF JUSTICE TIMMER and JUDGE STARING,∗ dissented. VICE CHIEF JUSTICE TIMMER filed a dissenting opinion. JUDGE STARING filed a dissenting opinion.
JUSTICE GOULD, opinion of the Court:
¶1 The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like– minded friends and family. These guarantees protect the right of every *Chief Justice Robert M. Brutinel has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Christopher P. Staring, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter.
BRUSH & NIB ET AL. V. CITY OF PHOENIX Opinion of the Court 4 American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.
¶2 With these fundamental principles in mind, today we hold that the City of Phoenix (the “City”) cannot apply its Human Relations Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib (“Plaintiffs”) have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01.
¶3 Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record. See Appendix 1. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance. See Appendix 2.
¶4 Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, “[w]e can have intellectual individualism” and “rich cultural diversities . . . only at the price” of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641–42 (1943). This “freedom to differ is not limited to things that do not matter much . . . [t]he test of its substance is the right to differ as to things that touch the heart of the existing order.” Id. at 642.
UPDATE: Since I wrote this article in June of 2018, the Colorado Civil Rights Division did exactly what I predicted they would do, and perhaps what the SCOTUS wanted them to do. They didn’t stop persecuting Mr. Phillips. Instead they took the SCOTUS advice and changed their methods of persecution so their actions would be viewed as “legal.” It will be interesting to see where the persecuted go from here. It will be interesting to see if those will admit this case was no victor for Religious Freedom, but quite the opposite. We must see truth if we are going to be effective in defeating the lies.
SCOTUS Gay Wedding Cake Decision Did Nothing To Protect Religious Freedom
The Supreme Court of the United States rendered its opinion on a highly anticipated case regarding the right of a baker to refuse to design and create a wedding cake for a gay marriage ceremony based upon his religious convictions. However, for SCOTUS, this appears not to be a case of religious freedom, but one of unjust government discrimination.
Jack Phillips, a practicing Christian, often refused to design and create baked goods based upon his religious beliefs. His store was closed on Sundays and other Christian holidays, he refused to create or design desserts for Halloween, and he refused to make desserts that contained alcohol.
Phillips did not refuse to serve the same-sex couple who later filed a complaint. He only refused to design and create a cake for their wedding. He remarked that he would be happy to design and create cookies, birthday cakes, shower cakes or brownies, but not a wedding cake due to religious objections.
The same-sex couple filed a complaint with the Colorado Civil Rights Commission and the commission, after several hearings, decided that Phillips had violated Colorado’s public accommodation laws by refusing to create and design this wedding cake for the same-sex couple. The commission did not accept Phillip’s defense of religious conviction. In fact, members of the commission, on record and as justification for their decision, mocked Phillip’s beliefs and compared his religious convictions to slavery and the Holocaust.
The Supreme Court found in favor of Phillips in a 7-2 opinion, based particularly on the statements of the Colorado commissioners.
There are some very significant points that must be made to clarify this carefully written opinion. Because of the great public anticipation over this case, there will be a tendency to make more of what was said than was actually said and mischaracterize the magnitude of this decision.
About the Author: KrisAnne Hall is an attorney and former prosecutor, fired after teaching the Constitution to TEA Party groups – she would not sacrifice liberty for a paycheck. She is a disabled veteran of the US Army, a Russian linguist, a mother, a pastor’s wife and a patriot. She now travels the country and teaches the Constitution and the history that gave us our founding documents. KrisAnne Hall does not just teach the Constitution, she lays the foundations that show how reliable and relevant our founding documents are today. She presents the “genealogy” of the Constitution – the 700 year history and five foundational documents that are the very roots of American Liberty.
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