Thanks to Court Packing an Arizona Business Can Refuse to Make Wedding Invitations for Gay Couples

Luke Darby

Last summer, the Supreme Court finally weighed in on the so-called "gay wedding cake case," ruling that the owner of a Colorado bakery was free to refuse to provide a cake for a gay couple's wedding celebration. The decision was 7-2, but the Court didn't technically set a precedent for lower courts to follow. As University of Baltimore constitutional law professor Garrett Epps wrote in The Atlantic, "It used a rationale applicable only to this case, which sheds no light on the larger civil-rights issues."

The Arizona Supreme Court wasn't so reticent in Brush & Nib Studio v. City of Phoenix. On Monday, the court ruled in a 4-3 decision that businesses have the right to refuse to provide custom wedding invitation for same-sex weddings. According to Mark Joseph Stern in Slate, since the ruling is based on the Arizona state constitution, it's "effectively insulated from review by the U.S. Supreme Court. It also contains no clear principle limiting its reach to same-sex couples or to custom invitations—potentially giving Arizona wedding vendors a broad right to discriminate in the name of free speech." The American Civil Liberties Union, on the other hand, emphasized that while the decision is "disappointing," it only applies to the one Phoenix-based business.

This case might have turned out differently just a few years earlier. Up until 2016, the Arizona Supreme Court had five justices. Then, Republican Governor Doug Ducey signed legislation that added two more seats to the court, over the unanimous objections of all the sitting justices. According to the Arizona Daily Star then-Chief Justice Scott Bales wrote to Ducey in protest, saying, "Additional justices are not required by the court’s caseload. And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded."

Ducey waved away those concerns, claiming that with more justices, the court could take on more cases. When he was accused of "packing" the court, adding seats to swing the court's majority, he called his critics "just wrong," pointing out that unlike the nomination process for the U.S. Supreme Court, as governor he can only make selections from a list of applicants put together by a special commission. That commission, however, is composed of people that the governor selects. Ducey proceeded to appoint John Lopez and Andrew Gould, both of whom sided with Brush & Nib in Monday's ruling. Gould even authored the majority opinion.

My colleague Jay Willis has written in favor of congressional Democrats packing the U.S. Supreme Court, and this week Jamelle Bouie of the New York Times also called for it. Bouie writes, "The reasoning underpinning this proposal isn’t just about the future; it’s about the past. We have had two rounds of minority government in under two decades — two occasions where executive power went to the popular-vote loser. Rather than moderate their aims and ambitions, both presidents have empowered ideologues and aggressively spread their influence. We are due for a course correction."

The only reason the Mitch McConnell and Senate Republicans haven't tried to pack the court is that they haven't needed to—McConnell simply had to refuse to hold any hearings at all for Merrick Garland, Barack Obama's nominee to replace the late Antonin Scalia. The Arizona Republicans' willingness to pack their state court to get the rulings they want should be even more evidence that no option is off the table.

Originally Appeared on GQ