Can Businesses Turn Away LGBT Customers? Court Battles Bubbling Back Up A central question related to LGBTQ rights may again be headed to the U.S. Supreme Court:
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Can Businesses Turn Away LGBT Customers? Court Battles Bubbling Back Up

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Can Businesses Turn Away LGBT Customers? Court Battles Bubbling Back Up

Can Businesses Turn Away LGBT Customers? Court Battles Bubbling Back Up

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MICHEL MARTIN, HOST:

A central question related to LGBTQ rights may, again, be headed to the U.S. Supreme Court. Can businesses turn away customers because they object to what they are asking for, like wedding invitations or a cake? We have this story from Colorado Public Radio's Allison Sherry and Will Stone of member station KJZZ in Phoenix.

ALLISON SHERRY, BYLINE: You probably remember the baker Jack Phillips. He was the guy who declined to bake a wedding cake for a gay couple in Colorado several years ago, and his case went all the way to the Supreme Court.

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JESSICA SCHNEIDER: But the decision was narrow. It only applies to the baker in this case, Jack Phillips, and may not affect any future cases.

SHERRY: Phillips hasn't even restarted making wedding cakes, but he is back in court, fighting with the Colorado Civil Rights Commission. Officials found he, again, discriminated after he declined to bake a cake with a blue exterior and a pink interior. This time, the cake was supposed to celebrate a gender transition.

JACK PHILLIPS: I believe that God made male and female. And we don't get to choose that, and we don't get to change that.

SHERRY: So Jack Phillips is suing the state again.

PHILLIPS: And it's wrong for the state to force me to create artistic products.

SHERRY: And Colorado isn't the only place where this legal fight is playing out.

(CHEERING)

WILL STONE, BYLINE: A crowd holding purple posters with the slogan Create Freely greeted Joanna Duka and Breanna Koski when they emerged from the Arizona Supreme Court.

JOANNA DUKA: As Christians, our faith guides everything we do.

STONE: That's Duka. She and Koski run Brush & Nib Studio, a Phoenix wedding invitation business.

DUKA: The government should never be in the business of controlling how artists make creative decisions.

STONE: But Duka says Phoenix's ordinance prohibiting discrimination on the basis of sexual orientation does that by forcing her business to make invitations celebrating same-sex weddings, which is against her religious beliefs.

SHERRY: Here is how the Colorado and Arizona cases are similar. They're pitting First Amendment protections of religious freedom and freedom of speech against a state or city's anti-discrimination laws that protect LGBTQ people.

STONE: But when does an invitation or a cake even qualify as free speech? Actually, the U.S. Supreme Court's Colorado cake decision never answered that question.

KAIPO MATSUMURA: Only two justices would have held that the baking of a custom wedding cake is protected as speech by the First Amendment.

STONE: That's Kaipo Matsumura, who teaches law at Arizona State University.

MATSUMURA: The other justices refrained from commenting on the issue and just reserved that question for future decisions in other cases.

STONE: The case has divided powerful forces in Arizona. The state's attorney general and Republican leadership are siding with the business, major companies, the city of Phoenix.

SHERRY: In the Masterpiece cake ruling last year, the justices never dealt any blows to Colorado's anti-discrimination law. The state's new Democratic Attorney General Phil Weiser is defending the law in the latest suit.

PHIL WEISER: Equality for all is something that we here in Colorado are committed to. The law will be enforced. We will have to just play a few more innings before we win this game.

SHERRY: The same influential Christian group is challenging nondiscrimination protections in both states. The Alliance Defending Freedom has been tremendously successful, nationally, with similar cases, logging nine Supreme Court wins in just seven years.

STONE: They argue these business owners are not discriminating. They just can't be forced to convey a certain message. Jonathan Scruggs, an attorney with the Alliance, is representing the Phoenix wedding invitation business.

JONATHAN SCRUGGS: A Muslim artist shouldn't be forced to celebrate Easter because these messages violate their core convictions.

SHERRY: And in the Colorado case, the Supreme Court did find that Colorado Civil Rights Commission showed animus toward religion. And the cakemaker's lawyers say that hasn't changed because they're going after him again in the gender transition cake case.

STONE: But those who fought for these anti-discrimination laws remember what life was like before they existed. In Phoenix, lawyer Brendan Mahoney says he'd routinely get calls from people fired from jobs or denied a room because of their sexuality. All he could tell them...

BRENDAN MAHONEY: Your best solution is to get involved and change the law.

STONE: That eventually happened in 2013, when the city council passed its ordinance. And Mahoney says a central part of Phoenix's argument is that a court can't carve out an exemption for LGBTQ people...

MAHONEY: And not, at the same time, open the door to people saying, well, we won't serve blacks or we don't serve pregnant women or we don't serve Jews.

STONE: And whether it's a case about wedding invitations in Arizona, a gender transition cake in Colorado or a similar case somewhere else...

SHERRY: All the parties involved believe that, eventually, the U.S. Supreme Court will take up the issue once again.

For NPR News, I'm Allison Sherry in Denver.

STONE: And I'm Will Stone in Phoenix.

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