BRUSH & NIB STUDIO, LC, et al., Plaintiffs/Appellants/Cross-Appellees,
v.
CITY OF PHOENIX, Defendant/Appellee/Cross-Appellant.
Appeal
from the Superior Court in Maricopa County No. CV2016-052251
The Honorable Karen A. Mullins, Judge
Alliance Defending Freedom, Scottsdale By Jeremy D. Tedesco,
Jonathan A. Scruggs, Samuel D. Green Co-Counsel for
Plaintiffs/Appellants/Cross-Appellees
Helm,
Livesay & Worthington, Tempe By Roberta S. Livesay
Co-Counsel for Plaintiffs/Appellants/Cross-Appellees
Osborn
Maledon, P.A., Phoenix By Colin F. Campbell, Eric M. Fraser,
Joshua David Rothenberg Bendor Co-Counsel for
Defendant/Appellee/Cross-Appellant
Phoenix City Attorney's Office, Phoenix By Brad Holm,
Heidi E. Gilbert Co-Counsel for
Defendant/Appellee/Cross-Appellant
Margrave Celmins, P.C., Scottsdale By Michael Kitchen Counsel
for Amici Curiae Constitutional Jurisprudence
Law
Offices of Kevin L. Beckwith, P.C., Phoenix By Kevin Beckwith
Counsel for Amici Curiae Law and Economics Scholars
Center
for Arizona Policy, Phoenix By William M. Clark Co-counsel
for Amici Curiae Center for Religious Expression and Center
for Arizona Policy Center for Religious Expression, Memphis,
Tennessee By Nathan W. Kellum, appearing pro hac vice
Co-counsel for Amici Curiae Center for Religious Expression
and Center for
Arizona Policy Joshua Carden Law Firm, P.C., Scottsdale By
Joshua Carden Co-counsel for Amici Curiae Coalition for
Jewish Values, Ethics and Religious Liberty Commission, Jews
for Religious Liberty, and The Rabbinical Alliance of
America, Inc. Perkins Coie LLP, Phoenix By Daniel C. Barr,
Barry Grant Stratford, Katherine Elizabeth May Counsel for
Amicus Curiae Arizona Businesses Mayes Telles PLLC, Phoenix
By Jessica Hernandez Co-counsel for Amicus Curiae Lambda
Legal Defense and Education Fund, Inc.
Lambda
Legal Defense and Education Fund, Inc., Los Angeles,
California By Jennifer C. Pizer, Nancy C. Marcus, both
appearing pro hac vice Co-counsel for Amicus Curiae Lambda
Legal Defense and Education Fund, Inc.
American Civil Liberties Union, Phoenix By Kathleen E. Brody
Co-counsel for Amici Curiae American Civil Liberties Union,
American Civil Liberties Union of Arizona, Arizona Trans
Youth & Parent Organization, Equality Arizona, GLSEN
Phoenix, Human Rights Campaign, One n Ten, Phoenix Pride,
Southern Arizona AIDS Foundation, Southern Arizona Gender
Alliance, Southern Arizona Senior Pride, Trans Queer Pueblo,
Trans Spectrum of Arizona
American Civil Liberties Union, New York, New York By Brian
Hauss, appearing pro hac vice Co-counsel for Amicus Curiae
American Civil Liberties Union, American Civil Liberties
Union of Arizona, Arizona Trans Youth & Parent
Organization, Equality Arizona, GLSEN Phoenix, Human Rights
Campaign, One n Ten, Phoenix Pride, Southern Arizona AIDS
Foundation, Southern Arizona Gender Alliance, Southern
Arizona Senior Pride, Trans Queer Pueblo, Trans Spectrum of
Arizona
Presiding Judge Lawrence F. Winthrop delivered the opinion of
the Court, in which Judge Jennifer B. Campbell and Judge Paul
J. McMurdie joined.
OPINION
WINTHROP, PRESIDING JUDGE
¶1
Joanna Duka and Breanna Koski ("Appellants") are
the owners of Brush & Nib Studio, LC ("Brush &
Nib"). Appellants filed a pre-enforcement action against
the City of Phoenix ("Phoenix") challenging the
constitutionality of Phoenix City Code 18-4(B) ("Section
18-4(B)") and seeking a preliminary injunction to bar
enforcement of the ordinance. Appellants appeal the superior
court's denial of their preliminary injunction and grant
of summary judgment in favor of Phoenix. For the following
reasons, we affirm as modified.
FACTS
AND PROCEDURAL HISTORY
¶2
Brush & Nib is a for-profit limited liability company,
which sells pre-fabricated and design artwork for home
décor, weddings, and special events. Appellants
provide retail goods and services to the public and
acknowledge they operate a place of public accommodation as
defined in Phoenix City Code § 18.[1]
¶3
Appellants are devout Christians and believe their work is
inextricably related to their religious beliefs.
Appellants' goods and services include both
customer-directed projects (work created through a
consultation between Appellants and their customer) and
pre-fabricated merchandise (work created without
Appellants' knowledge of how the items will be used or
who will use those products).[2] Appellants believe their
customer-directed and designed wedding products "convey
messages about a particular engaged couple, their upcoming
marriage, their upcoming marriage ceremony, and the
celebration of that marriage." Appellants also strongly
believe in an ordained marriage between one man and one
woman, and argue that they cannot separate their religious
beliefs from their work. As such, they believe being required
to create customer-specific merchandise for same-sex weddings
will violate their religious beliefs.
¶4
Appellants want to be able to legally refuse to create
custom- made merchandise for all same-sex weddings.
Additionally, Appellants desire to post a public statement
explaining their religious beliefs. Appellants' proposed
statement, in part, would notify potential customers that
"Brush & Nib Studio won't create any artwork
that violates [their] vision as defined by [their] religious
and artistic beliefs and identity, " which includes
"artwork that demeans others, endorses racism, incites
violence, contradicts [their] Christian faith, or promotes
any marriage except marriage between one man and one
woman." Appellants have not posted this statement
because they believe it would violate Section 18-4(B).
Instead, Appellants sought a preliminary injunction to bar
Phoenix from enforcing Section 18-4(B) and a declaration that
Section 18-4(B) violates the Arizona Constitution's free
speech clause, religious toleration clause, equal protection
clause, due process clause, and the Arizona Free Exercise of
Religion Act ("FERA").[3]
¶5
Phoenix filed a motion to dismiss and the case proceeded to a
bench trial before the superior court. The superior court
denied Phoenix's motion to dismiss, finding Appellants
had standing and the case was justiciable. The court then
denied Appellants' motion for a preliminary injunction,
finding Section 18-4(B) did not violate Appellants'
freedom of speech nor substantially burden their exercise of
religion. Appellants timely appealed the denial of the
preliminary injunction to this court and moved to stay
proceedings before the superior court. The court denied
Appellants' request. Appellants then moved, and Phoenix
cross-moved, for summary judgment. The court granted
Phoenix's motion for summary judgment on all claims.
Appellants filed a timely appeal from the court's summary
judgment ruling and moved to consolidate that appeal with the
appeal from the denial of the preliminary
injunction.[4] We granted Appellants' request, and
have jurisdiction over this consolidated appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and
Arizona Revised Statutes ("A.R.S.") sections
12-120.21(A)(1) (2016) and 12-2101(A)(1) (2016).
ANALYSIS
¶6
Arizona courts have long upheld the public's right to
participate in society without fear of discrimination.
See Phillips v. Phoenix Union High Schs., Maricopa
Cty. Super. Ct. No. 72909 (1953) (enjoining Phoenix Union
High Schools from segregating pupils based on race);
accord, Heard v. Davis, Maricopa Cty. Super. Ct. No.
77497 (1954). The Phillips court expressly found
that "democracy rejects any theory of second-class
citizenship" and that "[a] half century of
intolerance is enough." Id.; see also Paul
Rees, A Civil Rights Victory, Pre-Loving, 53 Ariz.
Att'y 84 (Aug. 2017) (noting that Arizona repealed its
anti-miscegenation law before the United States Supreme Court
found such laws unconstitutional).
¶7
In 2014, however, the Arizona legislature sought to amend
FERA to expand the definition of a protected person from
"a religious assembly or institution" to "any
individual, association, partnership, corporation, church,
religious assembly or institution, estate, trust, foundation
or other legal entity." S.B. 1062, 2014 Leg., 51st 2d.
Reg. Sess. (Ariz. 2014). Although S.B. 1062 was ultimately
vetoed, it was viewed by some as a reaction to the
development of antidiscrimination ordinances, which included
sexual orientation as a protected class, and the national
trend in favor of granting broader rights to same-sex
couples. Dinita L. James, Amid SB 1062 Frenzy, Tempe
Becomes 4th AZ City to Protect LGBT Status, 20 No. 11
Ariz. Emp. L. Letter 1 (2014).
¶8
Currently, nineteen states have enacted public accommodation
antidiscrimination laws which include sexual orientation and
gender identity as protected classes. See Equality
Maps/Non-Discrimination Laws, Movement Advancement
Project (2018),
http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
Arizona's public accommodation antidiscrimination
statute, however, does not specifically include sexual
orientation as a protected class. See A.R.S. §
41-1442(A) (2017). Accordingly, several Arizona cities have
enacted broader ordinances to prohibit discrimination based
on sexual orientation in places of public accommodation.
See Tempe Code Ch. 2 Art. VIII § 2-601 (2014);
Flagstaff Code Ch. 14 § 14-02-001-0001 (2013); Tucson
Code Art. II § 17-1 (1999). Like Tempe, Flagstaff, and
Tucson, Phoenix's Code, Section 18-4(B), as amended in
2013, prohibits discrimination in places of public
accommodation based on sexual orientation. Section 18-4(B)
provides that:
No person shall, directly or indirectly, refuse, withhold
from, or deny to any person, or aid in or incite such
refusal, denial or withholding of, accommodations,
advantages, facilities or privileges thereof because of race,
color, religion, sex, national origin, marital status, sexual
orientation, gender identity or expression, or disability nor
shall distinction be made with respect to any person based on
race, color, religion, sex, national origin, marital status,
sexual orientation, gender identity or expression, or
disability in connection with the price or quality of any
item, goods or services offered by or at any place of public
accommodation.
It is unlawful for any owner, operator, lessee, manager,
agent or employee of any place of public accommodation to
directly or indirectly display, circulate, publicize or mail
any advertisement, notice or communication which states or
implies that any facility or service shall be refused or
restricted because of race, color, religion, sex, national
origin, marital status, sexual orientation, gender identity
or expression, or disability or that any person, because of
race, color, religion, sex, national origin, marital status,
sexual orientation, gender identity or expression, or
disability would be unwelcome, objectionable, unacceptable,
undesirable or not solicited.
Phoenix City Code § 18-4(B)(2)-(3) (2013).[5]
¶9
On appeal, Appellants raise a myriad of constitutional
issues, arguing that Section 18-4(B) is unconstitutional,
both on its face and as-applied, and that any enforcement of
Section 18-4(B) would violate their First Amendment right to
free speech and free exercise of religion under state law.
Appellants are not the first to attempt to use their
religious beliefs to justify practices others consider
overtly discriminatory. See Bob Jones Univ. v. United
States, 461 U.S. 574 (1983) (finding a school, which
prohibited interracial dating and marriage, could no longer
receive tax-exempt status). Although the law has at times
recognized religious beliefs as justification for
discriminatory practices, [6] modern societal trends are to the
contrary. See McLaughlin v. Jones, 243
Ariz. 29, 33, ¶ 13 (2017) ("Denying same-sex
couples 'the same legal treatment' in marriage . . .
and 'all the benefits' afforded opposite-sex couples,
'works a grave and continuing harm' on [same-sex
couples] in various ways - demeaning them, humiliating and
stigmatizing their children and family units, and teaching
society that they are inferior in important respects."
(citing Obergefell v. Hodges, 135 S.Ct. 2584,
2600-02, 2604 (2015)); see also Lawrence v. Texas,
539 U.S. 558, 575 (2003) (finding when the state criminalizes
same-sex couples' conduct it "is an invitation to
subject homosexual persons to discrimination both in the
public and in the private spheres").
¶10
While this case may be the first of its kind in Arizona,
Brush & Nib is only one of numerous national litigants
who seek to preserve and define their religious freedoms in
the face of ordinances which prohibit places of public
accommodation from discriminating based on sexual
orientation. See Elane Photography, LLC v. Willock,
309 P.3d 53 (N.M. 2013) (finding a photographer's refusal
to take photographs of a same-sex wedding violated New
Mexico's antidiscrimination laws), cert. denied,
134 S.Ct. 1787 (2014); Craig v. Masterpiece Cakeshop,
Inc., 370 P.3d 272 (Colo.App. 2015) (finding
Colorado's antidiscrimination statute, which prohibits
places of public accommodation from refusing services on the
basis of sexual orientation, did not violate the baker's
freedom of speech or freedom of religion), cert.
denied, No. 15SC738 (Colo. Apr. 25, 2016), reversed
on other grounds, Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Comm'n, No. 16-111, slip op. (U.S. June
4, 2018); Washington v. Arlene's Flowers, Inc.,
389 P.3d 543 (Wash. 2017) (finding a florist's refusal to
provide custom arranged flowers for a same-sex wedding
constituted sexual orientation discrimination and was
unlawful under Washington's antidiscrimination law),
cert. docketed, No. 17-108 (U.S. Jul. 17, 2017);
Telescope Media Grp. v. Lindsey, 271 F.Supp.3d. 1090
(D. Minn. 2017) (finding the Minnesota Human Rights Act,
which prohibits places of public accommodation from
discriminating based on sexual orientation, does not infringe
a business owner's First and Fourteenth Amendment
rights); Gifford v. McCarthy, 137 A.D.3d 30 (N.Y.S.
3d. 2016) (finding venue rental owners could not refuse to
rent space for a same-sex wedding).
¶11
In light of these cases and consistent with the United States
Supreme Court's decisions, we recognize that a law
allowing Appellants to refuse service to customers based on
sexual orientation would constitute a "grave and
continuing harm." Obergefell, ...