Alliance Defending Freedom just lost another pre-emptive legal challenge filed on behalf of plaintiff Brush & Nib Studio, a Phoenix-based calligraphy company, who claimed their free exercise of religious beliefs were being violated by a local nondiscrimination policy.
However, the company has willfully and voluntarily abided by this policy since becoming an Etsy vendor in 2015 and thereby agreeing to the site’s terms of service.
In May 2016, a preemptive lawsuit was filed by anti-LGBTQ hate group Alliance Defending Freedom (ADF) against the city of Phoenix on behalf of Brush & Nib studios. The lawsuit claimed that the city’s nondiscrimination ordinance, which includes sexual orientation and gender identity, was a theoretical violation of the business owner's’ religious freedom. ADF has become somewhat notorious for filing “pre-enforcement” legal challenges on behalf of a variety of plaintiffs. Lawsuits like this are unique, because the plaintiffs did not deny service to a same-sex couple, but instead sought the legal protection to theoretically do so in the future.
Last week, a Maricopa County Superior Court judge rejected this argument in a summary judgement. The decision clarified that Phoenix was within its legal right to compel private businesses to equitably serve the public and that the nondiscrimination ordinance did not infringe on the plaintiff’s free speech or exercise of religion.
Prior to becoming plaintiffs in this recent lawsuit, in 2015 Brush & Nib Studios registered as vendors on Etsy.com, an online shop that provides a platform for small businesses to sell their wares. In doing so, Brush & Nib voluntarily and willingly agreed to the vendor terms of service for the site, which prohibits discrimination based on sexual orientation and gender identity. Brush & Nib's ongoing involvement with ADF, labeled as an anti-LGBTQ hate group for their attempts to criminalize LGBTQ people, would seem to be in violation of another of Etsy’s vendor agreement prohibiting posts that glorify or promote current or historical hate groups.
This begs the question: how are religious beliefs strictly held in one circumstance and not the other? If Brush & Nib is willing to abide by nondiscrimination policies in order to participate in e-commerce, then why object to the same policy when enacted by a jurisdiction? Brush & Nib has not shied away from being vocal about their desire to refuse service to LGBTQ people and are well-known due to their association with a hate group. Given this information, will Etsy proactively remove Brush & Nib from their site in order to protect users from experiencing prejudice and discriminatory treatment?