Story by Jeff Kronenfeld, July 2019 Issue.
Photos by Bill Gemmill
The American Constitution Society (ACS) hosted a panel exploring current and past cases that impact LGBTQ rights and potentially the rights of other marginalized groups as well. Held on June 6, the panel was made up of lawyers involved in some of these cases, plus Nate Rhoton, the executive director of one•n•ten, a non-profit in downtown Phoenix serving LGBTQ youth. Though much progress has been made on LGBTQ rights during the preceding decades, the anti-LGBTQ policies of the Trump administration and the rightward shift of state and federal courts had most of the panelist concerned if not fearful for the future.
The panel — titled Brush and Nib and Beyond: New Frontiers in LGBTQ Rights — was moderated by Randy McDonald, an attorney with the law firm Perkins Coie, one of the event’s sponsors. He began with a question to Eric Fraser, an attorney who argued on behalf of the City of Phoenix’s anti-discrimination ordinance in front of the Arizona Supreme Court in January. That case was brought by a small wedding stationary company with help from the Alliance Defending Freedom (ADF), the latter of which is identified by the Southern Poverty Law Center as an anti-LGBTQ hate group and is headquartered in Scottsdale. The ordinance protects people from discrimination by businesses on the basis of race, national origin, sex, marital status, religion and other characteristics.
Phoenix’s public accommodation ordinance was originally passed in 1963, but was amended in 2013 to include sexual orientation, gender identity or expression, and disability. The stationary company, named Brush and Nib and operated by Joanna Duka and Breanna Koski, claimed that the ordinance violated their constitutional rights by preventing them from stating that they refuse to offer LGBTQ couples the same service as heterosexual ones on their website. “What makes this interesting, I think, is that no same-sex couple had ever requested services from this company before they sued,” Fraser said.
This marked the Brush and Nib case out from the raft of similar challenges to anti-discrimination ordinances and laws across the nation, many of which are also bankrolled and argued by the ADF. Though the city won in lower courts, ADF attorneys filed a petition that brought the case before the Arizona Supreme Court. The city filed a petition arguing their opponents did not have standing, which the Supreme Court initially rejected, then reversed its decision just before oral arguments. “They wouldn’t let us file any more briefings on the issue, which is weird,” Fraser explained. “That would be a way to dodge this issue, as we know the U.S. Supreme Court dodged the main issue in Masterpiece Cakeshop [a case from Colorado where a baker refused to make a cake for a same-sex wedding], but there really weren’t many questions about it at oral argument, so I’m not sure whether that’s the way they’ll go or not.”
Also discussed were several related cases involving a range of other wedding services, everything from cakes to flowers to video editors. The Supreme Court for the state of Washington conveniently decided one such case the morning of the panel. Ingersoll v. Arlene’s Flowers involved a same-sex couple who sued a florist for refusing to provide flowers for their wedding. The morning’s ruling was a reconsideration of the case in light of the U.S. Supreme Court’s decision on the Masterpiece Cakeshop case and reconfirmed the earlier decision in favor of the same-sex couple.
Though the ADF’s argument was rejected, the organization seems likely to continue its crusade in support of discrimination. “The arguments are very similar in many of these cases and [the ADF] seem[s] to have been trying different places to advance their legal arguments,” explained panelist Jennifer Pizer, the law and policy director for Lambda Legal, a national legal organization advocating for LGBTQ people’s civil rights. [JW2]
Another panelist, Julie Wilensky, a senior staff attorney for the National Center for Lesbian Rights, discussed a recent victory for LGBTQ youth in Arizona that demonstrated how legal proceedings can help prompt political solutions in addition to legal ones. She was one of the attorneys involved in a recent case that challenged Arizona’s so-called “No Promo for Homo” Law, which passed in 1991 and banned schools from including positive or even medically accurate discussions of homosexuality in HIV/AIDS education.
The suit challenged the 1991 law on the grounds of an equal protection claim and outlined how it directly harmed LGBTQ youths. The suit resolved soon after the state legislature repealed the challenged law. Another important component in passing the repeal, which had been attempted several times in recent years, was the criticism of the 1991 law by new Superintendent of Public Instruction Kathy Hoffman. “Within two weeks [of the suit being brought] the law had been repealed,” said McDonald, the moderator. “In Arizona state politics, that’s basically the speed of light.”
Despite these and other recent victories for LGBTQ rights mentioned, the discussion seemed more dominated by concerns and fears for the future. However, whatever may come, the panelists also seemed resolved to continue the fight. “My takeaway today is that there is still so much more work to do,” said Rhoton. “It’s scary, the potential for backslide, but also how interconnected the various civil rights protections and codes are and how a quote-unquote bad decision, as it pertains for LGBTQ rights and issues, could impact so many marginalized communities across the nation and truly disrupt the fabric of our nation.”