Brush & Nib, LLC v. Phoenix, No. 18-cv-0176-PR. (Az.) September 16, 2019.

The Arizona Supreme Court has concluded that the Phoenix ordinance requiring equal treatment for all persons cannot be applied to compel the creation of wedding invitations for same-sex couples in view of the protections afforded pure speech and those afforded sincerely held religious beliefs under state law. 

A Product-Specific Decision. The court recognized the design and handmade productions of wedding invitations to be artistic creations protected as pure speech while refusing to opine concerning other aspects of plaintiffs’ business.  

An As-Applied Challenge. A portion of the municipal law that forbade statements that persons within protected classes would be unwelcome in a place of public accommodation was declared unconstitutionally vague by the Arizona Court of Appeals, leaving only an as-applied challenge before the Supreme Court.

Speech Doctrines, Protections, and Their Limits. The court noted that although the Arizona Constitution offers greater speech protections than does the United States Constitution, the distinction does not disturb the result in this case. 

The “compelled speech” doctrine developed by the United States Supreme Court establishes that the First Amendment forbids the government from demanding that an individual speak where to do so would offend his deepest beliefs.  This protection of autonomy and against compulsion extends to any requirement that an individual adopt the speech of others where to do so would offend his deepest beliefs.  

Not all speech enjoys the protection of the “compelled speech” doctrine, but “pure speech,” which includes original artwork, is protected by the First Amendment because of its self-expressive nature and not because of the medium chosen or the presence or absence of a particular message.

While a business does not forfeit First Amendment protections because it operates for profit, neither does it enjoy a blanket exemption from the laws generally applicable to commerce because the business involves speech or creative expression.  

Accordingly, plaintiffs’ business is not insulated by the First Amendment, but the particular custom made designs and products in issue do enjoy constitutional protection. 

Artistic Expression, Not Discriminatory Conduct. The court rejected the city’s argument that discriminatory conduct and not protected creation were in issue, and in particular rejected the suggestion that the plaintiffs’ position is a proxy for discrimination, for even if some protected groups were affected more than others by plaintiffs’ position, that does not cause plaintiffs’ to forfeit First Amendment protections.  Plaintiffs have no issue with same sex customers but aver that same sex marriage falls outside the Christian faith that is central to their enterprise.

It does not matter, the majority observed, that the creative process is collaborative with the customer or that no “endorsement” of same sex marriage is involved.

Ordinance Not Content Neutral As Applied. The court concluded that the ordinance, while content neutral, became content based as applied, and that, notwithstanding that a compelling state interest in fairness and equality in commerce are embodied in the ordinance, the breadth of the statute was fatal when strict scrutiny analysis was undertaken.  An ordinance aimed at inhibiting discriminatory conduct which includes speech within its sweep cannot be said to be sufficiently narrowly tailored to the government goal to be upheld. Speech regulations, where permissible, must be approached as “minimums, not maximums”

A Pointed Clash.  The majority chastened the dissenting judges for what it perceived to be hyperbolic revivification of history and stressed that the court’s conclusions in no way may be seen as permitting any merchant to fail to comply with the Phoenix public accommodations law. 

Religious Free Exercise Claim Valid. The majority concluded that plaintiffs articulated a viable claim under the state religious freedom act which, like its federal analog, provides that an individual may be exempted from a generally applicable law if compliance with the law would unduly burden the individual’s religious beliefs and the state may otherwise accomplish its legitimate ends.  

Plaintiffs are inarguably Christian and the compelled creation of work contrary to their beliefs would burden the exercise of their faith, the court observed.  The state would not similarly suffer if plaintiffs were exempted, for the surviving provisions of the public accommodations ordinance remain undisturbed.  

Conformity to Uniformity Not Outcome-Determinative. The need for uniformity in the administration of the law cannot be permitted to deny essential First Amendment rights, and the city’s speculation about flood-tides of applications for exemption is hypothetical and, in any case, it is the obligation of the courts and administrative bodies to make the sorts of determinations about claims that permitting exemptions would require.

Phoenix Not Without Armature. Neither has the city been forced to forfeit its general interest in public welfare at the altar of personal religious liberty, the majority observed, for the city may contest the sincerity of any asserted religious belief, may challenge any religious assertions as pretextual and reflective of an overarching discriminatory intent.  Finally, the city may show that any exemption contemplated would create too great a burden on the city to be permissible.

Litigative Burden Ameliorated. That plaintiffs have prevailed on their state free exercise law  claim entitles them to an award of attorneys’ fees.

Concurrence Cheers State Constitutional Protections.  One judge wrote separately to encourage the celebration of Arizona’s constitutional speech protections, which are thought to be more extensive than those of the U.S. Constitution.  The concurrence urged that the court consider its own state’s constitution rather than too readily looking to federal decisions. 

Errors Noted and Civil Rights Regression Decried. Dissenting judges have opined that the majority has erred in permitting anodyne and uniform wedding invitations providing the same information for all customers to become art subject to First Amendment protection and to permit discrimination on the basis of sexual orientation.  

Going Too Far to No Good End. The dissent questioned the majority’s need to reach constitutional questions where they need not be in addressing the application of this municipal ordinance.  

There Are No Less Restrictive Means. The dissent stressed that at issue is a content neutral conduct regulation for which no less restrictive means of application can be found:  either merchants are precluded from discriminating on the basis of protected status, or they are not. If they are permitted to discriminate, the statute fails of its essential — and recognized — compelling end. 

Infected with Bad Thinking. The dissent scorned the majority for embracing the pernicious idea that a refusal to sell to certain customers is protected expression and that the public interest in equality is insufficient to require a business to serve all customers where an element of expression is involved. 

Equanimity and Equal Treatment Cannot Be A Substantial Burden. The dissent noted that the concept of a “substantial burden” on religious exercise is not clearly defined, but found it difficult to imagine that such a burden could be found where enforcement of the ordinance would require only that the plaintiffs make and sell the same product for same sex couples as it does for others.

In the Business of Serving the Public, Not the Business Owners Beliefs. Businesses cannot be permitted to discriminate based on the business owners’ views, or the entire public accommodations law scheme will be defeated.  

Offering the Same to All Cannot Be So Different. A dissenting judge writing separately takes issue with the idea that any speech is being compelled where the plaintiffs are being asked only to create  the same product for all, and also observes that no part of the plaintiffs’ beliefs are being burdened by being asked to treat all customers equally. Plaintiffs are not facing a forced choice between their beliefs and their livelihood, as they are not being asked to support same sex marriage, only to treat all customers equally.  

Suggestive of Diametrically Opposed Weltanschauungs. The majority and the dissenting justices in this case appear to hold fundamentally different intellectual and legal constructs of the issues central to the case, with each compelling the exact opposite ordering of constitutional and statutory priorities. The majority holds sacrosanct the principles of individual autonomy and freedom from government interference in speech, expression and faith.  The dissent does not see this case as one in which the government is compelling the plaintiffs to act in disharmony with their beliefs, but one in which the plaintiffs seek to conduct their business in a way that discriminates against certain customers,which conduct cannot enjoy First Amendment protection. For the dissenting justices, the recognition of plaintiffs’ claims undermines the primacy of the protections accorded to equal consideration for all in the marketplace.

Brush & Nib, LLC, et al. v. City of Phoenix, S.Ct. AZ, September 16, 2019

Video of Oral Argument in Brush & Nib LLC v. City of Phoenix

Court of Appeals Opinion:

Brush & Nib LLC v. City of Phoenix, 1 CA-CV 16-0602






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