Brush & Nib Studio, LC v. City of Phoenix, 091619 AZSC, CV-18-0176-PR

Docket Nº:CV-18-0176-PR
Opinion Judge:GOULD, JUSTICE.
Party Name:Brush & Nib Studio, LC, et al., Plaintiffs/Appellants/Cross-Appellees, v. City of Phoenix, Defendant/Appellee/Cross-Appellant.
Attorney:Jeremy D. Tedesco, Jonathan A. Scruggs (argued), Samuel D. Green, Kristen K. Waggoner, John J. Bursch, Alliance Defending Freedom, Scottsdale, Attorneys for Brush & Nib Studio, LC, Breanna Koski and Joanna Duka Colin F. Campbell, Eric M. Fraser (argued), Joshua D. Bendor, Osborn Maledon, P.A., Ph...
Judge Panel:JUSTICE GOULD authored the opinion of the Court, in which JUSTICES BOLICK, LOPEZ, and PELANDER (Retired) joined. JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES (Retired), joined by VICE CHIEF JUSTICE TIMMER and JUDGE STARING, dissented. TIMMER, V.C.J., dissenting. STARING, J., dissentin...
Case Date:September 16, 2019
Court:Supreme Court of Arizona
 
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Brush & Nib Studio, LC, et al., Plaintiffs/Appellants/Cross-Appellees,

v.

City of Phoenix, Defendant/Appellee/Cross-Appellant.

No. CV-18-0176-PR

Supreme Court of Arizona

September 16, 2019

Appeal from the Superior Court in Maricopa County The Honorable Karen A. Mullins, Judge No. CV2016-052251

Opinion of the Court of Appeals, Division One 244 Ariz. 59 (App. 2018)

Jeremy D. Tedesco, Jonathan A. Scruggs (argued), Samuel D. Green, Kristen K. Waggoner, John J. Bursch, Alliance Defending Freedom, Scottsdale, Attorneys for Brush & Nib Studio, LC, Breanna Koski and Joanna Duka

Colin F. Campbell, Eric M. Fraser (argued), Joshua D. Bendor, Osborn Maledon, P.A., Phoenix; Cris Meyer, Phoenix City Attorney, Heidi E. Gilbert, Assistant Chief Counsel, Phoenix, Attorneys for City of Phoenix

Nathan W. Kellum, Center for Religious Expression, Memphis, TN and Samuel J. Doncaster, Doncaster Law, PLLC, Phoenix, Attorneys for Amicus Curiae Center for Religious Expression

Joshua Carden, Joshua Carden Law Firm, PC, Scottsdale Attorney for Amicus Curiae Jewish Coalition for Religious Liberty

David L. Rose, Rose Law Office PLLC, Phoenix, Attorneys for Amicus Curiae Arizona Legislators

Stewart Salwin, Statecraft PLLC, Phoenix, Attorneys for Amicus Curiae Tyndale House Publishers, et al.

Kevin L. Beckwith, Kevin L. Beckwith, PC, Phoenix, Attorneys for Amicus Curiae Law and Economics Scholars

Michael L. Kitchen, Margrave Celmins, P.C., Scottsdale, Attorneys for Amicus Curiae Cato Institute, et al.

Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix and Lindsey Kaley, American Civil Liberties Union Foundation, New York, NY, Attorneys for Amicus Curiae the American Civil Liberties Union, et al.

Mark Brnovich, Arizona Attorney General, Rusty D. Crandell, Assistant Solicitor General, Angelina B. Nguyen, Unit Chief Counsel, Phoenix, Attorneys for Amicus Curiae State of Arizona, et al.

Bert E. Moll, The Law Firm of Bert E. Moll, P.C., Chandler, Attorneys for Amicus Curiae Tyndale House Publishers, et al.

Robert J. Bozelli, The Bozelli Law Firm, PC, Chandler, Attorneys for Amicus Curiae Professor Adam J. Macleod

Roopali H. Desai, D. Andrew Gaona, Coppersmith Brockelman PLC, Phoenix, Attorneys for Amicus Curiae Bloom & Blueprint Event Co., LLC, et al. Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix and Alex J. Luchenitser, Americans United for Separation of Church and State, Washington, DC, Attorneys for Amicus Curiae Americans United for Separation of Church and State, et al.

Joshua Carden, Joshua Carden Law Firm, P.C., Scottsdale and Michael K. Whitehead, Whitehead Law Firm, LLC, Lee's Summit, MO, Attorneys for Amicus Curiae Ethics & Religious Liberty Commission of the Southern Baptist Convention, et al.

Stewart Salwin, Statecraft PLLC, Phoenix, Attorney for Amicus Curiae National Center for Law and Policy

Daniel C. Barr, Barry G. Stratford, Randal B. McDonald, Katherine E. May, Lindsey M. Huang, Perkins Coie LLP, Phoenix, Attorneys for Amicus Curiae First Amendment Scholars

Jessica M. Hernandez, MayesTelles PLLC, Phoenix and Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, Attorneys for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.

Kenneth W. Schutt, Jr., Schutt Law Firm, P.L.C., Scottsdale, Attorneys for Amicus Curiae The C12 Group, LLC

Amanda Salvione, Greenspoon Marder LLP, Phoenix, Attorney for Amicus Curiae ONE Community Media, LLC d/b/a ONE Community

JUSTICE GOULD authored the opinion of the Court, in which JUSTICES BOLICK, LOPEZ, and PELANDER (Retired) joined. JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES (Retired), joined by VICE CHIEF JUSTICE TIMMER and JUDGE STARING, [*] dissented.

OPINION

GOULD, JUSTICE.

¶1 The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person's home or church, or private conversations with like- minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person's sincere religious beliefs.

¶2 With these fundamental principles in mind, today we hold that the City of Phoenix (the "City") cannot apply its Human Relations Ordinance (the "Ordinance") to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC ("Brush & Nib"), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib ("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 ("FERA"), A.R.S. § 41-1493.01.

¶3 Our holding is limited to Plaintiffs' creation of custom wedding invitations that are materially similar to those contained in the record. See Appendix 1. 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. See Appendix 2.

¶4 Duka and Koski's beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, "[w]e can have intellectual individualism" and "rich cultural diversities . . . only at the price" of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-42 (1943). This "freedom to differ is not limited to things that do not matter much . . . [t]he test of its substance is the right to differ as to things that touch the heart of the existing order." Id. at 642.

¶5 Given this reality, the government "must not be allowed to force persons to express a message contrary to their deepest convictions." Natl Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S.Ct. 2361, 2379 (2018) (Kennedy, J., concurring). Rather, Plaintiffs are entitled to continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015).

¶6 Although this case is about freedom of speech and religion, it suits the preferred analysis of our dissenting colleagues to reframe it as one involving discriminatory conduct based on a customer's sexual orientation. This mischaracterization reflects neither Plaintiffs' position nor our holding. Literally none of the examples of invidious, status-based discrimination the dissent invokes, see infra ¶ 217-18, would even be remotely permitted under our holding today. Plaintiffs must, and they do, serve all customers regardless of their sexual orientation. However, by focusing solely on the anti-discrimination purpose of the Ordinance, the dissent engages in a one-sided analysis that effectively deprives Plaintiffs of their fundamental right to express their beliefs. But no law, including a public accommodations law, is immune from the protections of free speech and free exercise. Rather, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Barnette, 319 U.S. at 642.

¶7 The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs' right to express their beliefs about same-sex marriage by telling them what they can and cannot say. And to justify this action, both the City and the primary dissent claim that if we dare to allow Plaintiffs to express their beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the Old South.

¶8 But casting Plaintiffs' free speech and exercise rights in such a cynical light does grave harm to a society. As Justice Jackson observed in Barnette...

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