For the last decade, courts and commentators have penned many pages about anti-discrimination norms and religious liberty. Since the U.S. Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission,[1] lower courts have tried to balance these interests and begun to protect creative professionals from anti-discrimination laws that force them to speak messages against their conscience. The Arizona Supreme Court’s decision in Brush & Nib Studio v. City of Phoenix exemplifies this trend.[2]

Brush & Nib involved two artists who operate a Phoenix art studio called Brush & Nib Studio.[3] Brush & Nib offers both pre-made artwork and custom commissioned artwork, such as paintings for home decor, hand-lettered signs, wedding vows, and wedding invitations.[4] And though Brush & Nib offers to sell its artwork to anyone, its artists do not create artwork conveying messages contrary to their religious beliefs—such as artwork promoting racism, demeaning others, or celebrating same-sex weddings.[5]

Phoenix has a law forbidding public accommodations from discriminating on the basis of sexual orientation.[6] The law penalizes violators up to $2500 and six months in jail for each day of non-compliance.[7]

Brush & Nib and its artists brought a pre-enforcement challenge to stop the law from forcing them to create custom artwork celebrating same-sex weddings.[8] Forcing them to do so, they argued, would compel them to speak, substantially burden their religion, and therefore violate both the Arizona Constitution’s Free Speech Clause and Arizona’s Free Exercise of Religion Act (FERA)[9]—the Arizona version of the Religious Freedom Restoration Act.

Phoenix countered that (1) the artists and their studio lacked standing; (2) its law regulated discriminatory business activity and only burdened speech incidentally; (3) its law did not compel Brush & Nib’s speech because people would attribute that speech to Brush & Nib’s clients; (4) its law merely required equal treatment and that its effect on the artists was too attenuated to substantially burden their religious beliefs about marriage; and (5) applying its law to the studio served the compelling interest of stopping discrimination and helped prevent widespread discrimination.[10]

Rejecting these arguments, the Arizona Supreme Court ruled 4-3 that Phoenix would unconstitutionally compel speech and violate FERA by forcing Brush & Nib to create custom wedding invitations celebrating same-sex weddings.[11]

As for standing, the majority only analyzed Brush & Nib’s wedding invitations because its other artwork did not sufficiently appear in the record. But the majority found a credible threat that Phoenix would prosecute the artists for declining to create same-sex wedding invitations, particularly because Phoenix conceded its law required this.[12]

As for compelled speech, the majority emphasized that public accommodations laws facially and typically regulate discriminatory business conduct. But these laws still compel speech when applied to “speech itself”—in this case when compelling artists to write words and paint paintings they disagree with. These artists did not forfeit their free speech rights by offering to create speech on commission.[13]

Nor did Brush & Nib’s artwork speak only for their clients. The majority cited tattoo artists, parade organizers, and professional fundraisers as proof that speakers often work with others to create expression. Even when collaborating, artists still have an interest in choosing what they write, paint, or say.[14]

As for religious exercise, the majority found a substantial burden because the law’s steep penalties forced the artists to do something they considered religiously objectionable. Citing Burwell v. Hobby Lobby Stores, Inc.,[15] the majority refused to dismiss this objection as too attenuated from the artists’ fundamental religious beliefs. Doing that would force the court to question the reasonableness of their religious beliefs—something courts should not and cannot accurately do.[16]

And finally, the majority recognized Phoenix’s interest in stopping discrimination but denied its relevance here. Because the studio objected to conveying a message celebrating same-sex marriage for anyone and served LGBT persons generally regardless of their status, the studio did not discriminate against anyone. So compelling the studio to speak did not further Phoenix’s anti-discrimination interest.[17]

This point also negated any slippery-slope concerns. According to the majority, Phoenix can still use its laws to stop actual status-based discrimination. It just cannot use its laws in the rare situation when doing so would compel speech, like writing words or creating paintings. For the majority, this struck the right balance of respecting freedom while still allowing the government to stop status discrimination.[18]

In response to these conclusions, three dissenting opinions echoed arguments made by Phoenix. The first two dissents emphasized that Phoenix’s law textually regulated discriminatory conduct, and that it did not require the artists to endorse any view but merely required them speak their clients’ views, and therefore only burdened speech incidentally—a burden justified by the state’s compelling interest in stopping status discrimination.[19]

These two dissents also denied any substantial burden on the Brush & Nib artists, saying the law did not affect “fundamental tenets” of their beliefs and that courts should inquire into the “nexus” between a religious belief and a particular practice to decide whether a substantial burden exists.[20]

And all three dissents raised line-drawing and slippery-slope concerns: that the majority opinion would open the door to discrimination of different sorts in the future, whether based on sexual orientation, race, or religion.[21]

The Brush & Nib decision will have far-reaching consequences inside and outside Arizona. In its 52-page decision, the Arizona Supreme Court tackled most of the arguments in this controversial area of law and provided a blueprint for balancing anti-discrimination norms and constitutional rights—protecting dissent and good-faith disagreement on one hand yet still giving officials the tools to stop status discrimination on the other. And because the majority relied almost entirely on federal caselaw, other courts will surely cite and grapple with the Brush & Nib analysis when similar questions pop up elsewhere.

 

Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Alliance Defending Freedom represented Brush & Nib Studio and the studio’s artists in their case against the City of Phoenix, with Mr. Scruggs serving as lead counsel throughout the litigation. Mr. Scruggs' view expressed here are his own and do not necessarily reflect the view of his clients. 

[1] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[2] Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019).

[3] Id. at 898.

[4] Id. See also http://www.brushandnib.com; https://www.instagram.com/brushandnib (depicting some of these art pieces).

[5] Brush & Nib, 448 P.3d at 897-98.

[6] Id. at 898.

[7] Id.

[8] Id. at 899.

[9] Id. at 899-900.

[10] Id. at 900, 905, 911-12, 916, 920-21, 923.

[11] Id. at 926.

[12] Id. at 901-02.

[13] Id. at 914, 928-29.

[14] Id. at 907-08, 910-11.

[15] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

[16] Brush & Nib, 448 P.3d at 919-22.

[17] Id. at 909-10, 914-15, 922-26.

[18] Id. at 908, 916, 923-26.

[19] Id. at 929-34, 937-38.

[20] Id. at 934-35, 939-40.

[21] Id. at 937-39, 941.