Last Tuesday, the Arizona Supreme Court agreed to hear arguments on a case filed by business owners Briana Koski and Joanna Duka of Brush & Nib Studio — a calligraphy and letter-invitation business — over the city’s ordinance relating to discrimination protections against LGBT individuals.
The two-year legal struggle began when Koski and Duka refused to create wedding invitations for a same-sex couple, due to their evangelical Christian beliefs.
In reality, Koski and Duka never denied their services to the same-sex couple.
Instead, what they refused to do is to create custom-made projects specifically designed to commemorate same-sex marriage.
In May 2016, they sued the city, arguing that the ordinance violated their right to free speech and compelled them to support a practice they did not believe in. In June 2018, the Arizona Court of Appeals ruled in favor of the city, stating that Phoenix could proceed with its ordinance designed to protect LGBT individuals from discrimination, effectively coercing Koski and Duka to render services despite their objections. Now, the Arizona Supreme Court is set to hear oral arguments on the matter sometime next year.
In retrospect, this case is virtually synonymous with an earlier U.S. Supreme Court case — Masterpiece Cakeshop v. Colorado Civil Rights Commission — in which a Colorado Christian baker refused to render a custom wedding cake to a same-sex couple on the basis of the owner’s religious beliefs.
The bakeshop owner, Jack Phillips, won the case in a 7-2 decision, but instead of resolving the issue, the court ruled that the Colorado commission did not employ religious neutrality and that it was hostile toward Phillips and his religious views.
The court did not address anti-discrimination laws, nor how they relate to public accommodations and First Amendment claims of freedom of speech and religion. The reason why Koski and Duka’s case remains unresolved, then, is precisely because of this case and the Supreme Court’s unwillingness to rule on broader grounds.
With that in mind, forget about First Amendment and civil rights for just a moment, because fundamentally, what this case is really about is whether governments should be allowed to determine how private individuals utilize their labor. No one, without consent, should be allowed to demand the labor of another person. That would be a blatant violation of long-established classical liberal precepts.
Koski and Duka own a private business and have every right to render their labor to whomever they choose. As insolent as it is, I am of the opinion that private business owners should be allowed to be as intolerant as they wish, and if their social intolerance leads them to entrepreneurial ruin — which can easily happen — then that is their choice, not mine, nor any Arizonan’s, nor any government’s, for that matter.
And before we start deducing that all businesses will start wantonly discriminating against the general public, realize that this is not how things work. We live in a capitalist society with competitive markets. Businesses are in the business of making a profit, and the moment one business fails to render a service, another will provide. Capitalism cares more about profit than it does about discrimination.
With that said, what the city of Phoenix, and all governments, should recognize is that private businesses should not be regarded the same as publicly operated accommodations. They are private endeavors and are operated through the faculty of private labor. Phoenix does not see it this way, however, and instead, it has decided to abandon its pre-eminent duty to protect Koski and Duka’s natural right to liberty and property.
