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Brush & Nib Studio, LC v. City of Phoenix - 6/7/2018

Arizona Court of Appeals Division One holds that a city can lawfully prohibit public accommodations from refusing service based on sexual orientation.


A local ordinance prohibited public accommodations from refusing service based on sexual orientation.  The owners of a wedding invitation company wanted to be able to legally refuse to make custom wedding products for same-sex weddings, and they sued to enjoin the ordinance.  The superior court granted summary judgment to the city.  The company appealed.  The Court of Appeals affirmed. 

The Court began by quoting the Supreme Court’s recent decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111 (U.S. June 4, 2018), which held that, although “objections to gay marriage are protected views,” it is “a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

The Court then rejected the company’s argument that the ordinance unconstitutionally required the company to speak in favor of same-sex marriage.  Instead, the Court explained that the ordinance merely regulated the conduct of selling or refusing to sell merchandise.  The Court further held that this conduct is not inherently expressive because invitations for same-sex weddings are not necessarily creatively different than invitations for opposite-sex weddings and do not indicate anything about the company’s beliefs about marriage.

The Court also rejected the company’s argument that the ordinance substantially burdened its religious beliefs in violation of the Free Exercise of Religion Act, A.R.S. § 41-1493.01.  The Court explained that the company remained free to express its beliefs about marriage, and that it could refuse to create wedding-related merchandise for same-sex couples, as long as it equally refused similar services to opposite-sex couples.  Accordingly, although the ordinance might decrease the satisfaction with which the company practiced its religion, that did not constitute a substantial burden under the Free Exercise of Religion Act.

Judge Winthrop delivered the opinion of the Court, in which Judges Campbell and McMurdie joined.

Posted by:  Josh Bendor

Disclosure: Osborn Maledon attorneys were involved with this case.

Posted On: 6/11/2018