Compelled Speech or Public Accommodation?

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On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings. 

The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city's anti-discrimination ordinance, as applied to the plaintiffs' calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona's Free Exercise of Religion Amendment ("FERA," i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or "RFRA").

There were five separate opinions. Justice Bolick authored a separate concurrence focused on the interplay between the federal and state constitutional rights at issue. Chief Justice Bales’s opinion was joined by Justice Timmer and Judge Staring (who sat by designation); this primary dissent essentially saying that the Court struck the wrong balance between liberty (for the calligraphers) and equality (for wedding celebrants).  Justice Timmer's opinion says, in short, that the burden on the calligrapher plaintiffs appears to be non-substantial and therefore the Court's FERA/RFRA analysis is incorrect.  Judge Staring's opinion appears to accept the majority's position on the "substantial burden" issues, without accepting the balance of its FERA/RFRA analysis.

Brush & Nib could be a watershed decision for similarly situated plaintiffs nationally.  The majority decision is the first of its kind, as plaintiffs in other states (NM, NY, WA) had previously failed to win majority support for their theories.  The majority in this decision seems conscious of that fact.  Their analysis is extensive, they make alternative legal findings to support their conclusions (i.e., although they could have decided on speech grounds alone, they additionally ruled for the plaintiffs on FERA/RFRA grounds), and addressed the decisions of other state courts. 

Jon Scruggs from the Alliance Defending Freedom argued before the Arizona Supreme Court on behalf of the business owners. Eric Fraser argued on behalf of the City of Phoenix. They will join us to break down the opinions and comment on the implications moving forward.


Jonathan Scruggs, Senior Counsel and Director of the Center for Conscience Initiatives, Alliance Defending Freedom

Eric M. Fraser, Partner, Osborn Maledon

Moderator: Hon. Jennifer M. Perkins, Arizona Court of Appeals


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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Thursday, October 17, 2019, during a live teleforum conference call held exclusively for Federalist Society members.        


Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is entitled "Compelled Speech or Public Accommodation?" My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today, we are fortunate to have with us Jonathan Scruggs, who is Senior Counsel and Director of the Center for Conscience Initiatives at the Alliance Defending Freedom. We also have Eric Fraser, who is a Partner at Osborn Maledon. Our Moderator is Judge Jennifer Perkins from the Arizona Court of Appeals.


After our panel gives their opening remarks, we will then go to audience Q&A later in the program. Thank you all for sharing with us today. Judge, the floor is yours.


Judge Jennifer Perkins:  Good morning and thank you to The Federalist Society for hosting this teleforum. Thank you also to our two participants for their time today. As Micah indicated, we're here today to discuss a recent decision from the Arizona Supreme Court, which is the latest state court decision in the compelled speech versus public accommodation litigation.


      I'm just going to take a few moments to lay out a bit of the procedural background before inviting our speakers to summarize the parties' legal arguments in the case. And our hope is to engage in a little bit of a conversation style discussion about the case, its potential implications and such before we open the lines for audience questions. But we look forward to your questions, so I hope you'll be writing those down.


      In 2013, the City of Phoenix revised its anti-discrimination ordinance to prohibit places of public accommodation from discriminating on the basis of sexual orientation or gender identity, among other categories. The ordinance also forbids posting displays that either state or imply that service would be refused, restricted, or that business would be generally unwelcome on the basis of any prohibited category.


      Refusing to comply with the ordinance is a Class 1 misdemeanor, punishable by up to $2,500 per violation, six months in jail, three years' probation, or some combination thereof. Each day any violation continues constitutes a separate offense.


      Joanna Duka and Breanna Koski met in early 2015 to plan their calligraphy and hand-painting business in Phoenix. The business would provide custom and premade creations including, among other items, wedding invitations. Duka and Koski met during a bible study and are devout Christians. As such, they did not believe that they could provide custom artwork in support of same-sex marriage ceremonies.


      To avoid the potentially severe penalties of the Phoenix ordinance, they filed a pre-enforcement complaint for injunctive relief in May of 2016. The plaintiffs also requested declaratory relief authorizing them to post a statement in the business affirming their intent to refuse custom art requests for same-sex weddings and other objectionable content based on their religious beliefs.


      The trial court denied both the City's motion to dismiss and the plaintiff's request for a preliminary injunction. Both parties moved for summary judgment. The trial court granted the City's motion for summary judgment, holding that the ordinance did not violate plaintiff's rights to free speech or free exercise under state constitution.


      The Court of Appeals affirmed the trial court in part. First, it found the unconstitutionally vague the ordinance's prohibition of a display that states or implies that a member of a protected class is unwelcome, objectionable, unacceptable, or undesirable.


      Second, the Court of Appeals left intact the prohibition against posting any display implying that business from a protected class member was not solicited. Finally, the Court affirmed the trial court holding that the remaining provisions of the ordinance did not violate plaintiff's free speech and free exercise rights under the Arizona Constitution.


      The seven-member Arizona Supreme Court issued its decision last month, which involved five separate opinions. Justice Gould authored the majority opinion, joined by now-retired Justice Pelander and Justices Bolick and Lopez. Justice Bolick wrote a separate concurrence.


      Now-retired Chief Justice Bales authored the primary dissenting opinion joined by Vice-Chief Justice Timmer and Judge Staring, who was sitting by designation. Justice Timmer and Judge Staring each wrote a separate dissent. Before we delve to deeply into the Court's discussion, I'd like to turn for a few moments to the speakers and ask them to each summarize their client's legal arguments, and, I guess, we'll go first to you, Jonathan.


Jonathan Scruggs:  Thanks so much. So our basic argument at the highest level is the government shouldn't force people to speak messages they disagree with, and that includes artists trying to earn a living. So Joanna and Breanna are the two artists in this case. They serve all people, including those in the LGBT community. And they have created a wide variety of artwork for people in those communities and sell their premade art to anyone for any occasion.


      But there's just some art pieces that they don't create for anyone: artwork promoting racism, demeaning other people, containing nudity, things along those lines. And the same logic really applies for artwork celebrating same-sex weddings, such as custom wedding invitations. They don't create that artwork for anyone, no matter who asks them. And the government shouldn't have the power to force citizens to handcraft art pieces conveying messages contrary to their core convictions.


      And the case we relied on the most here is a case from the U.S. Supreme Court, the Hurley case which involved parade organizers and that case -- this parade organizer declined access to a pro-LGBT group wanting to march in their parade. And Massachusetts applied its law, its public accommodation law, much like the City of Phoenix's law here, to compel them to admit that group marching in that parade. And the U.S. Supreme Court said no, you can't apply the public accommodation law in that scenario because it compels speech.


      So we view that as really very close and the principle should apply here. And the principles just make good sense, right, and really should apply to different viewpoints, too. This is not just a[n] argument that applies just to Christians or just to people of faith, but the government shouldn't force an LGBT print shop owner to print flyers condemning same-sex marriage for a church or they shouldn't force an atheist singer to sing at an Easter service.


      So in our pluralistic society, it's best when speakers get the freedom to choose what they say and what they can't say, not the government. And so we made those arguments under both the compelled speech doctrine and also FERA, which is Arizona's free exercise of religion act, which is very similar to RFRA which is the federal version of that.


      But for, really, both those arguments, they coalesce in the same principle about not forcing someone to speak a message they disagree with. So that's the high-level arguments that we made to the Court.


Eric Fraser:  This is Eric and thank you for hosting this, thanks to The Federalist Society. I represent the City of Phoenix in this case, and I'll just give a really quick summary with three high-level points.


      The first point is that we took the position throughout the case that the case wasn't ripe, which is a really important part of the case that I think often gets overlooked. No same-sex couple had ever requested any custom services from Brush & Nib before the company sued. This was a pre-enforcement challenge so that the entire case, in our view, is hypothetical.


      So we said the case wasn't ripe, and the Court should wait for a real case to present itself so that the Court can really look at what is the specific request that a customer made, what would that require the company to do, and really get into the specific facts of the case.


      Now, the Supreme Court largely agreed with us and dismissed Brush & Nib's claims on all products except custom-made wedding invitations that are materially similar to those in an appendix that the Court included to the opinion, and I'm sure we'll talk about that more later.


      But there were lots of other products that were at issue here that Brush & Nib was seeking an injunction on, including place cards, and menus, and maps, save-the-dates, that I think presented really different issues in the case.


      Now, on the merits, the central question in our view and the central ground on the case was whether this public accommodation's law regulates conduct or whether it regulates speech. And as Jon said, the claim here is compelled speech. In other words that the public accommodations law required the company to make products that it doesn't want to make because those products contain messages that the company doesn't agree with.


      Now, one way, I think, to look at this is to compare a product that Brush & Nib would willing made or one that it has already willingly made with one that it wants to refuse to make. The products in this case fall all along a spectrum, and I'm sure we'll talk about that in a little bit too. But I think a good example to illustrate this is place cards.


      Brush & Nib makes place cards, and there are a lot of examples of these in the record. But it doesn't want to make place cards for same-sex couples. Now, it turns out that place cards in general, or at least all the ones on the record in this case, just say the name of the guest, they don't say the name of the couple on them. They don't say who's getting married. That means that a place card for me, Eric Fraser, Table 5, looks identical regardless of who's getting married.


      So if I showed you two examples of place cards for the same person, same guest, one for a same-sex couple's wedding and one for a an opposite sex couple's wedding, you wouldn't be able to figure out which one's which. And that's not trying to be cute, I think it's really significant because the product that Brush & Nib wants to refuse to make is identical to one that it would willingly make. So I think it's really difficult to say that there's compelled speech there.


      The discrimination is based on who the couple getting married is, not on anything that appears on the text of the page or the design or any other protected speech. Now, Jon said that artists shouldn't be compelled to convey any messages they disagree with, and we agree. But I think you have to be really precise about what message we're really talking about. What message do these products convey?


      Because we took the position throughout the case that Brush & Nib could absolutely refuse to make all sorts of products without violating the ordinance. The ordinance only prohibits refusal based on sexual orientation, race, sex, religion, disability, and other categories. So if the company refuses to make a product because of the message, then the ordinance doesn't even apply.


We're not in compelled speech territory because the ordinance just doesn't apply at all, which means that there's a whole host of things that Brush & Nib can refuse to make. It can refuse to make wedding invitations that have quotes from a Obergefell or have the rainbow flag on them or anything else, as long as the company would refuse to print those words or symbols or designs for an opposite sex couple.


      We took the position, too, that Brush & Nib is free to put statements on its website or in its storefront about its views on same-sex marriage. The ordinance does not prohibit any company from expressing the view that marriage is limited to one man and one woman. So that's a brief summary of the positions we took, and I know we'll get into those in more detail.


Judge Jennifer Perkins:  Ah, great. Thanks gentlemen. One of the things I wanted to start out with, that at least I found interesting about the case, is Eric noted the Court arguably substantially narrowed the case to wedding invitations only, despite the fact that many products were raised and, as you pointed out, even if you print the Westlaw version of the case, you can see pictures appended to the opinion of the various types of products available. So there was a narrowing of the case.


      On the other hand, the Court did a more broad analysis in that it addressed not only the state constitutional claims but also the RF -- excuse me, the state version of RFRA and really took up all of those issues even though, at least arguably, it did not have to. So I guess I just wanted to get some thoughts from both of the attorneys on how narrow or how broad you view this opinion as being.


Jonathan Scruggs:  This is Jon. I'll go, take a first shot at this. I think we should tape record it as word and it basically said that hey, we're not going to address everything because it felt like it didn't have all the necessary facts to rule on every single item.


But for the wedding invitations, it was conceded by the City that all the wedding invitations that Brush & Nib creates contain celebratory text about a wedding. Yet, the City was still trying to compel them to create those invitations celebrating same-sex weddings.


      So I think that just made it an easier case to narrow it back in your respects. And I think that makes some sense with respect to the RFRA on the other issues, the Court noted that the RFRA issue and the free speech issue are intertwined, right? Because RFRA, although it protects non-speech, it also does protect speech. It protects speakers. If someone was going and distributing Bibles on the street because they had a religious motive for doing so, RFRA would protect that. The Free Speech Clause would protect that.


      So really, there's no way to disjoin the analysis. They're so linked together that the Court had to determine what's the government's interest here? Even under the RFRA analysis -- and the government's interest might be different from speech versus nonspeech, for example.


So I think the way the Court did it threaded that needle between okay, we're not going to address every item, but because some of the legal analysis is intertwined, we have to confront it. I think, especially, the latter decision made sense.


Eric Fraser:  So this is Eric. There are many axes to this case and to, I think, all of the wedding vendor cases that have been brought over the years. Everything from bakers to photographers, videographers, florists, venues, and so on.


      In this case, the Court picked one little spot on each of the axes and ruled on a really narrow issue, declining to rule on the rest. It said, again, that the ruling pertained to custom-made wedding invitations that are materially similar to those in the appendix that Judge Perkins mentioned.


      I think that's pretty unusual, and I think it feeds back into the ripeness issue that we had. These cases -- or at least this case was a pre-enforcement challenge. It sought very, very broad relief, and the record was full of examples of all sorts of different products. So I think it's a little bit unusual that the Court picked one subset of products and made a ruling on that subset without addressing any of the other products, while at the same time ruling on both statutory ground and a constitutional ground. When typically, I think, most courts tend to rule solely on a statutory basis if one exists under the doctrine of constitutional avoidance.


      So I think it's an unusual pairing that the Court ruled on two different legal issues that I don't think are as intertwined as Jon said. I think FERA, which is the state version of RFRA, doesn't require any speech component. And, of course, free speech claims don't require any religion component. So I think they are independent. So I think it's unusual that the Court ruled on both of those legal issues, but at the same time narrowed the case, narrowed the scope of the product at issue in the case.


Judge Jennifer Perkins:  That, actually, brings us to another area that I think will be an interesting area of discussion, and that is the state constitutional claims. This case was brought specifically under the Arizona Constitution and, for those on the call not in Arizona, I'll read, quickly, at least one constitutional provision that is at play.


      The free speech provision in Arizona, the language is notably different from the Federal Constitution. It says, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." It's, obviously, some different wording.


      The case is brought under the Arizona Constitution and the majority reached its conclusions under the Arizona Constitution. Although, the cases cited were federal speech cases, by and large. Justice Bolick's separate concurrence provided, I think, some depth to the state constitutional claims and grounds.


But I guess I'd just like to hear from the attorneys about your thoughts on the implications for state constitutional claims, either here in Arizona going forward or if you'd like to comment more broadly, nationally.


Jonathan Scruggs:  Okay, I'll take first shot here. So the Court, again, I think it's a path of least resistance in many respects, right? Under the Arizona Constitution, there's been many Arizona cases that say that the First Amendment sets the floor. So at the very least, if there's a First Amendment violation, the fact is that there's going to be a violation of the Arizona Free Speech Clause.


I think the trouble, in many respects, even for litigators, is that there's not been a lot of case law talking about what the meaning or how -- if the Arizona -- because the Arizona free speech clause goes father, what does that mean? So a lot of times, all you have to rely on is federal cases. And that was a large part of our argument was those federal cases.


And I'll just quickly, the national significance of it, I think, we're already seeing the national significance of this case. Currently, there's a case pending for the U.S. Supreme Court or at least a cert petition has been filed in the Arlene's Flowers case, which is the florist out of Washington who declined to create floral arrangements celebrating a same-sex wedding.


And you can already see this case being cited in the cert petition and all the amicus briefs that were just filed. We represent, also, a print shop owner in Kentucky that declined to print t-shirts promoting a gay pride festival. And, again, we alerted the Court to the ruling in this case.


So all these cases involving public accommodation laws and compelled speech, I think, are going to be related. They're going to be cited against back and forth to each other. So I do think the case is going to have a fair amount of impact on a national scale.


Eric Fraser:  So this is Eric. I've read a lot of the commentary about the role of state constitutions, and from a litigator, I think the struggle is that in a lot of constitutional law areas, the doctrine, the body of law that's developed is not really tied to the text of the provisions at all.


      So free speech under the -- the free speech law that's developed under the federal Constitution is not necessarily tied directly to the plain text of the First Amendment, "Congress shall make no law." Right off the bat, most free speech cases these days don't even involve Congress at all.


      So when the body of law has developed to be different than the plain text, then I think there's a real question about what role the text of the state constitution should play when the courts recognize, as Jon said, that the federal constitutional case law provides a floor and the state constitution can provide greater protections. I think the question is well, how does the text play into the body of case law that's developed to be broader than the federal Constitutional text?


      So here, Arizona's Freedom of Speech Clause is very, very different from the federal counterpart. Judge Perkins read it and it bears almost no resemblance textually to the federal counterpart. But it's not clear at all how those textual differences would compel a different result in a case like this.


      The central question in this case is whether applying the law regulates conduct or speech. And just because Arizona's Constitution provides greater protection for speech than its federal counterpart, that doesn't really help answer the question of whether the law regulates speech or conduct, which is an area where there's a large body of federal law on the issue -- or federal cases on the issue.


      And I think to go deeper, the text of the Arizona Constitution is a positive right, not a negative right. So it differs from the federal Constitution in that respect. But it's not clear at all whether the text of a positive right free speech clause even encompasses the compelled speech doctrine that forms the foundation of the case, which I think is a really interesting, important question.


      But the Court doesn’t need to go there. This is Jon's point about the path of least resistance because there is such a deep body of case law in the federal Constitution, I think the courts will generally look to that doctrine, that well-developed body of law, unless there's an obvious way in which the textual differences compel a different outcome in that specific case, right?


      And so, I think, even looking through -- there were some amicus briefs that re-certed the Arizona Constitution in this case. And, of course, there is a concurring opinion. But I think even those sources don't necessarily articulate how the text of the Constitution compels a different answer to the central question, which is does the law regulate speech or conduct?


      So, again, I've read and I've been following this area of debate about the role of state constitutions, and I think it's a very important issue. But when there's a federal counterpart that has well-developed law, that has come unmoored a little bit from the text, that I think it's not obvious how the text of the state constitution plays into that.


Judge Jennifer Perkins:  So I have a great deal of interest in that area, but I think we'll probably move on to just a last discussion point before we start getting into the questions from the audience.


      One of the interesting things -- and actually, Eric and I had an offline discussion some time ago about this, which is prompting this discussion area. What about the interplay between speech and religion?


      So all of the wedding vendor cases involve religiously motivated free speech claims and speech-related free exercise claims. But these don't have to be linked. The speech claim doesn't have to be motivated by a religious belief, the FERA or RFRA claim doesn't have to be related to speech. Would the case have come out a different way if it didn't present both speech and religion claims together?


Eric Fraser:  So I've been thinking a lot about this and I have to give credit to Jon and his team for framing the case in the way they did. I think there are three components here that don't necessarily have to be linked but are in all of these wedding vendor cases that Jon and his team have brought around the country and that's bringing a speech claim.


So I think all of the cases have speech allegations at least, and Jon and his team have tried to portray these businesses in the most creative light possible. And then all of the motivations for wanting to refuse service are all religiously motivated in all of these cases. But, of course, they don't have to be.


And the third angle in which I think the cases were framed particularly well is that the axis on which there's a refusal of service, sexual orientation, is not universally recognized throughout the country, not universally recognized in every jurisdiction, and has a unique history as compared to discrimination on the basis of, say, race or sex or disability.


And so none of these things are needed to be combined in this way. So you could have a free exercise of religion claim that's identical in all respects to this case except does not have any kind of speech component, like a vendor that rents tables and chairs to weddings, right? You could have a tables and chairs vendor that says I don’t want to facilitate or have my services offered for a same-sex couple's wedding or something like a valet service, all sorts of companies, vendors that don't have any meaningful speech component.


They could have an almost identical free exercise of religion claim, but I think, intuitively, that might lead to a different result. I think when you combine these things in this way and you have a speech-based business plus a religiously motivated claim, I think that is just about the most sympathetic way to frame these cases.


So I think it'll be interesting to see what happens if a non-speech based business asserts a free exercise claim. Or inversely, if somebody asserts a speech-based claim that is not based on religion. Of course, we know many, many claims about free speech are not religiously motivated. So you could have somebody that is engaged in a very creative pursuit, say a photographer, and have that person say, "I don't want to take pictures of an interracial couple. Not because of any religious claim, not because of any religious belief, just because I don't want to do that."


And I think the free speech claim there -- the speech claim doesn't depend on any kind of religious motivation. So all these cases share all of these features, and I think that's wise strategically, but as a legal matter, I think the doctrines are really independent.


Jonathan Scruggs:  Yes. I agree with a lot of what Eric said. I think from our perspective, I think it's right that I don't think you have to combine all these elements to succeed on a compelled speech claim or a religion claim, but they are somewhat mutually reinforcing. I think in many contexts, the free speech claims, especially, are already applying the way that we would argue they should apply in our case.


      So let me give you an example. There was a case out of Utah, for example. And there was a religiously run newspaper that declined to publish an ad by a religious group, and they declined that. And then that newspaper was sued under the public accommodation law in Utah for religious discrimination.


It went up to the Utah Supreme Court, and there the Court said hey, that's not even a violation of the law because you're compelling them to say a message they disagree with. They otherwise serve people in the protected class, religious people, but they can't convey this message. In many ways, we view our argument as along the same lines of that.


Another case out of New York I think is interesting. It went the other way. It's ongoing. It involves a Liberal law bar association group that was having an event and declined to publish advertisements supporting Israel. And they were sued under the New York public accommodation law, I think for national origin discrimination.


And so far, they filed a motion to dismiss and that was denied. And the Court said well, no, this is discrimination. It's not compelled speech. And we would disagree with that result. We would view that as compelled speech. And that case is still ongoing. And so I think what you see is, at least on the -- definitely in the speech context, the principles should apply as long as it is a message-based objection.


Another interesting thing I'll just quickly note is I think doctrinally you see this. So if you look at Employment Division v. Smith, the case from 1990 that shifted how the U.S. Supreme Court handled free exercise claims, they made an exception for what they called hybrid rights scenarios. And in that section of the case, it mentioned -- it listed off examples and almost all the examples were compelled speech cases that involved religious motivation.


So the Barnette case, the Wooley case came to mind. It almost hinted at the fact that, yes, there is this kind of conscience element when you combine religion and speech that is so significant, and it's really recognized in our First Amendment history by those cases that I've mentioned. And I think there is a[n] intuitive sense that that is significant.


But, again, it really is -- varies so much from case to case and fact to fact how these things will turn out, depending on what is asserted, the claims, the arguments, and just the type of entity that is -- whatever they're engaging in.


Micah Wallen:  And, Judge, we had two questions lined up right away. We'll move to our first question.


Caller 1:  I noticed in the opinion that attorney's fees were rewarded to the prevailing party only for the fees incurred in the Arizona Supreme Court but not the Arizona Court of Appeals or the lower court. And then when I referred to the statute, there didn't appear to be a rational basis for that or any case law explaining why that was so. Would one or both of you care to address that result?


Eric Fraser:  That's something that's actually still being litigated. The opinion is settled so it is what it is, which is why I'm able to talk about the case. But the attorney's fees is still being litigated, so I'll pass.


Jonathan Scruggs:  Yeah, in fact, Eric was going where I was going since we're still -- that's still an open issue. I'm a bit hesitant to jump on that topic.


Micah Wallen:  All right. We'll move to our next caller.


Caller 2:  Hi there. I'd like to ask about a point that Eric Fraser made where you said that if not compelled speech in a case that you're going to be making an invitation, let's say -- anyway let's say the place setting, right? The name setting. Is there a concept such as compelled participation in another person's speech?


So they hypo that came to mind was you're a veteran. You produce American flags. One customer of yours wants to fly it. One customer wants to burn it. Either way, you're just producing another American flag. Is that a free speech concept or is that more just a conduct issue?


Eric Fraser:  Yeah, that's a really good question. So I really have two thoughts on that. The first is artists and any business owner generally have no constitutional right to control how their products are used downstream. So I think if you make a product and you offer it for sale, you generally can't control whether the customer's going to hang it and fly it or burn it. There might be some opportunities to have some contractual remedies, but there's no constitutional right to control the downstream uses of your product.


      Now, there is a separate doctrine that's lurking in the shadows in these cases, which is expressive conduct. That's like the O'Brien burning the draft card example. And it's not directly related to your question, but I think it gets at it. So if you're doing something and you have some conduct, and you intend for that conduct to express a message, that can lead to a constitutional claim if the government prevents you from expressing that message.


But you're under an entirely different rubric that has a lower standard of review. We're not in strict scrutiny territory anymore. And then there are all sort of other questions involved, including whether anyone is actually understanding that message, receiving that message, which is a question that sometimes we don't ask under a pure compelled speech case.


So I think that the short answer to your question is no, there's generally not a constitutional issue involving whether or how your customers will use your products.


Jonathan Scruggs:  A nuance a little bit. I think one thing we don't want to forget is expressive association type claims that we would say that misattribution or perceptions are not necessary for a constitutional violation, but they might be sufficient. So the case I think about is, I think, is the Johanns what's for beef case -- "Beef, it's what's for dinner." And one of the arguments there was could the government basically take out an advertisement on behalf of someone else saying they support something?


      So could the government pay for a billboard that says, "Mr. Smith supports President Obama," right? Now, in some sense, no one is -- the person -- Mr. Smith is not speaking at all. They didn’t do anything. On the other hand, people might perceive that and connect, associate their speech with that. So I think that is a bit of a separate context, but there could be scenarios in light of the expressive association type arguments.


      And then on the other side of that is an argument where, again, along the lines of participation, what happens if you're forcing someone to participate in the wedding ceremony itself? A singer, a musician, to stand up and celebrate in that type of way. You would probably, I would think, have a good argument that that would be a compelled speech but also a compelled participation whether it be a free exercise or a type of expressive association claim.


      And I think a lot of this actually got raised in the Masterpiece case itself. In the oral argument in that case, even the attorneys for the ACLU acknowledged that you couldn't -- it'd be problematic if you were forcing someone to participate in the wedding ceremony itself. So I think you have different scenarios where it might be possible, but those arguments didn't really come out to play as much in this case.


Micah Wallen:  We have one more question lined up. So we'll move to our next caller.


Herb Grey:  Hi, I'd like to follow up on that question. This is Herb Grey in Oregon. I was one of the lawyers involved in the Sweet Cakes by Melissa case. It seems to me that the courts have a really difficult time with distinctions between the event that's being objected to and the people who are asking for services in some fashion.


And it ties in with the whole speech versus conduct rubric, which to my observation, the courts seem to have a really difficult time with because their default position is that any expression of a belief therefore becomes conduct. And it could be expressive conduct, it could be just regular conduct but I'd be interested in both of the speakers addressing your observations about the speech conduct event/people distinction.


Eric Fraser:  So I think you do raise important distinctions. So there are a lot of different axes on these cases, as I keep saying. So in terms of the event versus the people, so you're right. These cases are framed around an objection to a wedding, but I don't think you can disentangle that from an objection to the people or to the status of the people because when you have a same-sex wedding, you're going to have a complete overlap with sexual orientation, right? There's not going to be two men getting married or two women getting married who are heterosexual.


      So this is like the famous line that “a tax on . . . yamakas is a tax on Jews.” So I think the event is a little bit of a red herring. The real question is this objection based on the event/person/status versus the message? And you have a speech claim if the objection is based on the message, which I think comes back to my analysis of there are all sorts of messages that a calligrapher, stationer, like Brush & Nib can object to, and if Brush & Nib objects to writing a quote from Obergefell on an invitation or something like that, that's obviously an objection to the message.


      But if the products that the company would be willing to make and would refuse to make are substantively identical and are identical in every important way, then I think it's hard to say that the objection is based on the message rather than who the customer is.


Jonathan Scruggs:  I would just say that I think Hurley really provides helpful guidance here, that Hurley, we would argue, followed the factors that Hurley did. And Hurley confronted a lot of these arguments -- and it's actually interesting. I would encourage everyone to go back and listen to the oral argument in Hurley, which you can do on or listen or read the briefs. And they really do sound like repeat briefs in these other cases.


      And in that Hurley case, which is the parade organizers, there, the Supreme Court looked at what is the text of the speech itself say? For example, in that situation it was the banner, banner that said just the name of the group. But it also considered things like well, does the speaker otherwise serve the protected class? Because in that situation, the parade organizers accepted LGBT people in the parade, they just didn’t want to accept the parade banner.


      And they also looked at things like context, hey, what's the purpose of this overall parade? What's the purpose of someone seeking the -- of someone asking what their request is seeking? Is it expressive purpose? And I think that's where an event can be helpful.


      For example, if an atheist declines to create some type of product celebrating or declines to -- an atheist serves Christians but declines to create a sign that says come celebrate this event for an Easter service. I think that helps illustrate that no, that person -- that atheist is not really discriminating against Christians as a class. They just object to conveying that message so I think an event can be helpful. But I don't think it's just decisive in all situations.


Eric Fraser:  Follow up on that. I think I have two points. One is if you think about a sign for a child's birthday party. If someone's willing to paint a sign that says "Happy Birthday," insert name here, and they're willing to make that for a white baby but not a black baby, I think you can't just say that we don’t want to celebrate a black baby's birthday. And you can reframe almost any objection to an objection to the event, but that's not really useful in the analysis because -- and I think the case that is a counterpart to Hurley is the Rumsfeld v. FAIR case.


      And the interesting thing about both of these cases, both Rumsfeld v. FAIR and the Hurley case that Jon is referring to, so they were both unanimous U.S. Supreme Court decisions. But they really came out different ways. So in Rumsfeld v. FAIR, it was about Solomon Amendment and law schools that wanted to prohibit military recruiters from coming on campus because the law schools disagreed with the military's "don't ask don't tell" policy.


And the Court said that [inaudible 40:31] there's a law that says if you -- it's a non-discrimination law. So if a law school is willing to let private recruiters come on campus, then it can't exclude military recruiters, have to treat them on the same terms. So the law does not compel law schools to allow military recruiters on campus, but if it allows any recruiters on campus, then it has to allow the military in on equal terms.


And law school said well, that's compelled speech because when private recruiters come on campus, we write emails and send emails to our students and print flyers and post flyers that say, for example, Kirkland & Ellis will meet interested students in Room 123 at 9:00 AM. And we don't want to have to write an email and distribute and print and post signs, flyers, emails, and so on involving the military because that suggests that we support the military's policies and we don't.


      The Court said no, there's no free speech violation there because having to change -- having to substitute in the name of the U.S. Army instead of a law firm name is only an incidental effect of the regulation of conduct of excluding people -- of excluding military recruiters. And so we mostly relied on Rumsfeld v. FAIR and Jon's side relied mostly on Hurley.


And I think the Rumsfeld v. FAIR case is particularly helpful with something like an invitation where wedding invitations generally are -- follow very, very standard rubric: name, place, date, time, we invite you to celebrate this wedding at this date and this time. And I think on the Rumsfeld v. FAIR, the vendor doesn't really have a legitimate speech interest in who the customer is, the names on the page, or and especially, of course, the dates and times and places.


I think that helps look at whether the objection is to the event or the message because the law schools said we object to the message, but what they were really objecting to was the Army and the Army's policies.


Jonathan Scruggs:  I think I agree with some of what Eric says, especially the point like we were saying an event by itself is not decisive, and I think that example he uses, clearly, would be status discrimination. But it sometimes, an event -- again, I think my point is, at least in some situations, an event can be helpful. Looking -- and I think why it's helpful is it just provides context for what the speech is or what the message is.


      And then context is important. I think we would all say that the meaning of certain messages are dependent on context. Again, to use the example of, let's say, an LGBT artist is asked to write a sign that says, "Defend Marriage," for a Catholic event, right? They might write that exact same sign for a pro-LGBT rally, right? It's just words, but the meaning of those words would vary depending on the context in which it's essentially being asked to be created for.


      And I think that's how people generally understand how speech works. We can think of many things that just kind of like "support our president" or other messages that well, the meaning of the words vary by the context. So I think, again, that's where the event can provide helpful guidance.


Micah Wallen:  All right, caller. You may go ahead and ask your question.


Phil Goldstein:  Hi, this is Phil Goldstein. I missed -- I'm sorry, the presentation. I got on late, but it is a follow-up to the follow-ups. It seems to me rather than getting into the morass of speech versus conduct, it's a clear violation in all these cases of the Thirteenth Amendment which prohibits involuntary servitude. It's as clear as a bell that involuntary servitude is prohibited in the United States. We're not talking about selling a product off the shelf but actually creating something and that's servitude.


      You're telling somebody to create something, not just they come into the store and they're not allowed to buy something. Of course, that could be under the anti-discrimination laws, but to actually create either an invitation or a flower arrangement or a cake, you're asking someone to apply their creative abilities and that's servitude. And I wonder why this argument has never been made in any of these cases?


Eric Fraser:  Yeah. I don't think the case law supports that argument at all. And I think that argument would apply with equal force to any on-demand product, custom-created or not, any on-demand product like, even just, an on-demand steak cooked to order would raise the same concerns. But I don't think the case law supports that argument at all.


Jonathan Scruggs:  I would just point at that I think the U.S. Supreme Court did address some Thirteenth Amendment type issues in the 1964 Civil Rights Act cases. Heart of Atlanta Motel, for example, but I think what the caller is hinting on is intuition, right? That it does seem somewhat different -- and I think that a lot times comes out in the compelled speech doctrine.


      Now, I understand that gets us into the speech versus conduct distinction, but even recently, the Supreme Court says that's a distinction -- that's every speech case. Every speech case involves -- is new dancing speech. The courts always have to make that distinction, it's just the nature of the clause.


But there is this intuitive element, I think, and that's -- to go back to our earlier discussion of why the free exercise combined with the free speech types of principles make these cases strong, I think, is that, again, that intuitive element of man, really forcing someone to custom create something that violates their core convictions. It seems a bit wrong, whether we ground that in the free exercise clause or the free speech clause.


So I think that's what the underlying elements of some of the things the caller was noting.


Micah Wallen:  All right. We'll now go to our next caller.


Caller 5:  Good afternoon. Thanks for the presentation. I am curious about your thoughts on whether the Arizona Supreme Court is politically polarized like the U.S. Supreme Court such that a single vacancy could potentially shift the vote 4-3 the other direction than what it came down.


Eric Fraser:  I don't think either the Arizona Supreme Court or the U.S. Supreme Court is particularly politically polarized. Most decisions, as we all know, are not this close, especially out of the Arizona Supreme Court. It's unusual to have a closely divided opinion like this.


      And I think especially if you look at the lower court opinions in this case, the Court of Appeals opinion was unanimous. All members of the same political party that was in the majority in the Supreme Court, so I don't think that the Court is particularly politicized, and frankly, I'm not sure that this is even a particularly or should be a particularly politically charged issue.


Jonathan Scruggs:  Yeah, I agree with what Eric said. Obviously, there are going to be cases that go to the highest levels. Sometimes they involve heated issues people are passionate about, but I do think that judges are just trying to maneuver to their best efforts to apply the principles of what they think are right, and they're doing that all across the country.


Eric Fraser:  Yeah, and in this case, just to follow up, and I'm sure Jon would agree with this that throughout this case, lower court opinions, Court of Appeal's opinion, the Supreme Court opinion, at all levels, this was not -- the votes were not down party line. It's not as if all Republican-appointed judges voted for one side and Democratic-appointed judges voted for the other side. Even at the Supreme Court of Arizona, that wasn't the case in this case.


Judge Jennifer Perkins:  And just very briefly, this is Judge Perkins. For those outside of the state, we actually have a mildly interesting status with our Supreme Court and this case in particular, and that is that two of the justices that participated, one in the majority and one in the principal dissent, have retired.


Actually, they retired before the opinion came out but were still on the case. And then a third participant in the case was sitting by designation because of the recusal. So three of the participants in this particular case would not participate in a future case if there were a similar issue to come up.


Micah Wallen:  All right. We'll now go to our next caller.


Eileen O'Conner:  Hi, this is Eileen O'Conner. Thank you so much for this presentation. I wonder when I see these cases why the burden is always on the courts? And wonder whether the legislature, whose job it is to adapt laws to changing circumstances, aren't derelict in their duty?


It seems pretty clear that the plaintiffs in these cases are anti-religionists who are selecting the defendants because they're Christian. They're filing suit, not because they can't get what they want, but because that Christian won't give it to them.


And it reminds me of the precept in administrative law of you should exhaust your administrative remedies. You can't bring a suit in federal court against a federal agency until you've exhausted all administrative remedies.


It seems like legislatures could pass a law that says you cannot bring a case like this to court unless you absolutely, positively can't get what you want anywhere, not just from that person whose religion will be offended by doing it.


Eric Fraser:  So first of all, this is not a case of a legislature being derelict in its duty. This is a law that was amended in 2016 -- or, I'm sorry, 2013 by the municipal equivalent of the legislature by the city council. So the city council made this law.


      And then the other respect that I'd like to comment on is this was not plaintiffs that were discriminated against that sued a defendant wedding vendor. This was the wedding vendor itself acting as the plaintiff suing the municipality trying to hold the law unconstitutional. This was a pre-enforcement challenge brought by the wedding vendor, not an instance of an actual refusal of service.


Jonathan Scruggs:  Yeah. I would just add that one thing I think is important to stress is Brush & Nib has received requests to create same-sex wedding art during this litigation. And the amount of penalties, as was talked about at the very beginning, is pretty high.


      You're talking jailtime, six months, accept fines. I think the Court even when out of its way to note in the opinion it can run up to tens of thousands, hundreds of thousands of dollars. I think it's pretty reasonable for a person to want to gain clarity before violating the law there.


      And I think the caller did pinpoint something that's interesting to think about is, not that it happened in this case, but there definitely have been situations throughout the country of public accommodation laws being used as swords and not shields.


I just think of in the Masterpiece case decision. So people are probably familiar with that, that Jack Phillips, the cake designer there, declined to create a cake celebrating a same-sex wedding ceremony. Went up and won that case to the U.S. Supreme Court, but since then has been sued, essentially, multiple times.


He won his second case. He had to file lawsuit in federal court saying that the government was being biased against him a second time. And now he's been sued a third time, and that case is ongoing. It's in state court. Again, by a person who heard about the news of what Jack's case happened and called his shop and asked for a particular cake and Jack politely declined.


So I think that is -- I think it's an unfortunate, maybe, effect of our polarization in our society that sometimes people are using these laws as swords and not shields. And that, probably, we would think it'd be a better scenario where we could see our way to co-exist in this way. Our position is decisions like the Arizona Supreme Court gets us even closer to that, right? That would protect people's freedoms to speak and not speak. And that's a good thing.


That should apply to all people, that we should live in this pluralistic society where we can dialogue together, we can disagree with each other on core fundamental issues without necessarily suing each other. So I think that is just maybe one element that the caller is concerned about.


Micah Wallen:  All right. Caller, please proceed with your question after the prompt.


Herb Grey:  Hi, this is Herb Grey again. And I wanted to follow-up on the earlier question in the discussion about the conflict between the Hurley case and the Rumsfeld v. FAIR case, which is exactly what caused me to comment about the law being messed up and in need of some resolution.


        And the other thing that strikes me in these cases that's related to that is almost without exception in these cases, the vendor at issue has routinely served LGBT people in a variety of contexts, just not in the context of doing creative work for a particular event. So what that leads me to conclude is that because of the changes under Smith, we don't have a way to balance the rights of religion, which is a protected class, and the rights of people based on sexual orientation or gender identity.


So the speakers kind of addressed what I see as the problem and we need to find a way to balance these rights and figure out a more constructive way forward.


Eric Fraser:  I want to remind everybody that Phoenix's public accommodation's law, like most public accommodation laws around the country, also include religion as a protected class. So these ordinances and these laws are designed to protect -- or prohibit discrimination on the basis of religion just as much as they are designed to prohibit discrimination on the basis of race or sexual orientation or any other category.


      So in terms of whether the vendor is willing to serve members of a protected class in some circumstances but not others, I think that's the argument that Ollie's Barbecue made in the 1960s. And the court rejected it saying being willing to serve black customers for takeout service only but not in the dining room is still discrimination on the basis of race.


And so serving a member of a protected class is certainly excellent and the public accommodation laws require that, but that doesn't excuse refusals of service to members of the protected class even in limited circumstances for an event.


Jonathan Scruggs:  Yeah, I would say, initially, Ollie's Barbecue obviously didn't involve any type of speech claim, right? So if you -- to go back to my point, I think it's correct. Hurley, the Arizona Supreme Court both strongly relied on the fact that here the speakers were otherwise serving people in the protected class.


      Another case that emphasized that was just recently the Eighth Circuit Court of Appeals in almost a [inaudible 56:17] opinion in many ways said that a film studio didn’t have to create films to celebrate a same-sex wedding ceremony. And the Arizona Court relied on that Eighth Circuit case pretty extensively.


      And I think it goes to a larger cultural issue, right? That is there a difference between that kind of, essentially, racist, people who are declining to serve an entire class of people because of who they are versus people who have this, I would call, a good faith objection to same-sex marriage, right?


That Obergefell recognized that people who believe -- held this view in marriage hold this view in good faith are descent and honorable people, that even, I think, the oral argument in Masterpiece, this point came up. Justice Roberts says in their distinction there, I think he said a large cultural point that it's better if we can, again, make that distinction between discrimination and disagreement, right? That how can we learn to live together and balance these things.


Judge Jennifer Perkins:  All right. Well, before we close, Judge, did you have any other remarks you wanted to add?


Judge Jennifer Perkins:  No. Just thank you to The Federalist Society and the participants. I think this is a very interesting case, so it was a great delight to have an opportunity to chat about it.  


Micah Wallen:  All right, and on behalf of The Federalist Society, I'd like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.


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