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Brush & Nib Studio, LC, v. City of Phoenix - 9/16/2019

Arizona Supreme Court holds that local anti-discrimination public accommodations ordinance cannot be applied to require art studio to create custom wedding invitations celebrating same-sex wedding ceremony in violation of its sincerely held religious belief under article 2, section 6 of the Arizona Constitution and the Free Exercise of Religion Act, A.R.S. § 41-1493.01.


A local ordinance prohibited public accommodations from refusing service based on sexual orientation.  A for-profit art studio that makes custom artwork for weddings brought a pre-enforcement challenge because it wanted to refuse to make custom products for same-sex weddings.  The city moved to dismiss on the ground that the studio had not refused to provide any services to any same-sex couples and therefore lacked standing.  Both the studio and the city moved for summary judgment on the merits.  The superior court denied the city’s motion to dismiss but granted its motion for summary judgment.  The studio appealed, and the court of appeals affirmed.  The Supreme Court granted review.

The Supreme Court reversed in part and vacated in part.  It held there was an actual case and controversy with sufficiently developed facts to make a ruling only as to the studio’s custom wedding invitations but not to any of the studio’s other products. 

The Supreme Court held that the ordinance could not be applied to the custom wedding invitations under article 2, section 6 (the “free speech clause”) of the Arizona Constitution.  Applying federal case law, the Court treated the case as one of compelled speech and found that the custom wedding invitations were pure speech because they involve hand-drawn words, images, and calligraphy, as well as hand-painted images and original artwork, and every custom invitation was different and unique.  The Court rejected the argument that the studio’s refusal was simply a proxy for discrimination on the basis of sexual orientation.  While acknowledging that the ordinance was a content-neutral law that targeted conduct, the Court nonetheless applied strict scrutiny because it necessarily altered the content of the studio’s speech.  The Court further recognized that the ordinance served a compelling government interest, but that it was not a compelling government interest as applied to the custom wedding invitations, because this compelled speech.  It also found that the ordinance was not narrowly tailored as to the studio’s pure speech.

The Court also held that the ordinance could not be applied to the custom invitations under the Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01.  There was no dispute as to whether the studio’s religious belief was sincere, and the Supreme Court held that because the law included criminal sanctions, its coercive effect gave the studio a stark choice between either abandoning their religious beliefs or facing state penalties.  The city therefore needed to show the ordinance as applied furthers a compelling government interest and was the least restrictive means.  The Court held that the ordinance could be more tailored by allowing an exception for custom wedding invitations. 

Justice Gould delivered the opinion of the court, joined by Justices Bolick, Lopez, and Pelander (retired). 

Justice Bolick filed a concurring opinion emphasizing that Arizona’s free speech clause is broader than the First Amendment. 

Justice Bales (retired) filed a dissenting opinion joined by Vice Chief Justice Timmer, and Judge Staring (sitting by designation).  Justice Bales would have held that the sexual orientation of the customer, not the content of the custom wedding invitation, determined whether the studio would provide the service and the city had a compelling interest in preventing discrimination in public accommodations based on sexual orientation.  Justice Bales would also have held that the ordinance did not burden speech, and that even if it did, there was no less restrictive means.  Justice Bales would also hold that even if there is a substantial burden under FERA, the ordinance served a compelling government interest and was the least restrictive means of furthering it. 

Vice Chief Justice Timmer and Judge Staring each also filed separate dissents. 

Disclosure: Osborn Maledon attorneys were involved with this case.

Posted by: Emma J. Cone-Roddy

Posted On: 10/7/2019