In
Brush & Nib. v. City of Phoenix, (AZ Sup Ct., Sept. 16, 2019), the Arizona Supreme Court in a 4-3 decision held that Phoenix's public accommodation law cannot be applied to force owners of a wedding and event supply business to create custom wedding invitations for same-sex ceremonies when doing so violates their religious beliefs. The several opinions generated span 78 pages. The majority opinion of Justice Gould, focusing largely on the compelled speech doctrine, said in part:
[Plaintiffs] have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act.... Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record.... We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance....
Plaintiffs’ custom wedding invitations, and the creation of those invitations, constitute pure speech entitled to full First Amendment protection....
Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs will make custom artwork for any customers, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may ... primarily impact same sex couples, their decision is protected because it is not based on a customer’s sexual orientation.
Justice Bolick filed a concurring opinion. Three dissenting opinions were filed, one joined by all three dissenters. The primary dissent written by Justice Bales said in part:
Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.
Arizona Republic reports on the decision.
