State constitutional and statutory right in Arizona to refuse to create custom wedding invitations for same-sex couples

In a 4-3 decision, the Arizona Supreme Court has interpreted its constitution, Ariz. Const. art. 2, §6, and its Free Exercise of Religion Act, Ariz. Rev. Stat. § 41-1493.01, to give a public accommodation the right to refuse service to same-sex couples who seek custom wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019).


Arizona has no state statute that prohibits discrimination on the basis of sexual orientation in public accommodations, but several cities, like Phoenix, have such local laws. This case involved a public accommodation that refused to produce a custom-designed wedding invitation for a same-sex couple. While Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S.Ct. 1719 (2018) had suggested that public accommodation laws could be enforced despite religious objections by the public accommodation owner, although it did not reach the free speech issue in that case and decided the religious liberty claim on narrow grounds. In Brush & Nib, the Arizona Supreme Court interpreted both its state constitution and its statutory protections for religious freedom to create a limited exception from such statutes when they require service providers to engage in compelled speech.


The court noted that the state constitution's wording gave individuals the right to "freely speak, write, and publish." Ariz. Const. art 2, §6. This protects against being forced to "express a prescribed government message" or "to host or accommodate another's message." The court held that artwork is "pure speech" especially when it is "imbued with elements of communication." The court reasoned that a "business does not forfeit [free speech rights] because it sells its speech for profit." Brush & Nib's custom wedding invitations are "pure speech" with original artwork. Since Brush & Nib is willing to serve any customer, regardless of sexual orientation, its refusal to serve in this case was not discriminatory. The case would come out differently if the case involved "fungible products." But becaue the refusal is limited to designing and producing custom wedding invitations for same-sex couples, the store was not discriminating on the basis of sexual orientation, but refusing to engage in speech that would "celebrate" a same-sex wedding and thus express a sentiment contrary to the speaker's sincere religious beliefs.


The holding was limited to custom wedding invitations and did not encompass other wedding products and did not grant a blanket exemption from the public accommodation law. The court did not contest that public accommodations must, in general, comply with a public accommodation law that prohibits discrimination on the basis of sexual orientation. And the business here did create custom artwork for customers regardless of their sexual orientation as well as pre-made artwork.


The court also found that the ordinance serves "the compelling interest of ensuirng equal access to publicly available goods and services for all citizens, regardless of their status," but that this interest was not sufficient to justify compelled speech. In addition, the ordinance was not narrowly tailored to achieve its equal access goals because it regulated speech rather than conduct.


The court denied that its ruling would undermine public accommodation laws since the holding was intended to be quite narrow: it applied only to the "pure speech" that was embodied in custom wedding invitations.


The court's decision disagrees with or distinguished other rulings, including Elane Photography, LLC v. Willock, 309 P.3d 53, 59-60 ¶7 (N.M. 2013), Gifford v. McCarthy, 23 N.Y.S.3d 422 (App. Div. 2016), and State v. Arlene's Flowers, Inc., 441 P.3d 1203 (Wash. 2019).


The court also held that the ordinance, as applied, created a substantial burden on religious freedom and was not the most restrictive means of achieving the government interest, since it did not balance the interest in free exercise of religion against the interest in equal access to the marketplace.


Three dissenting judges argued that the government interest in prohibiting discrimination in access to public accommodations was a compelling government interest that justified any incidental infringement of free speech or religion. "Vendors can freely choose which products or services they offer but they cannot refuse to sell them to groups of customers whom they disfavor." Nor does the wedding invitation "endorse the idea of…same-sex marriages." They also did not think the ordinance, as applied, posed a substantial burden to the artists' free exercise of religion because it did not ask them to express approval of same-sex marriages. One dissenting judge noted that customers, as well as shopkeepers, have rights to religious freedom, and that "ironically, today’s holding could be relied on to discriminate against individuals based on their religion and religious beliefs, notwithstanding the fact that both Arizona and Phoenix include religion as a basis for protection in their public accommodation laws."