Professional Documents
Culture Documents
v.
AFFIRMED AS MODIFIED
COUNSEL
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.
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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
OPINION
W I N T H R O P, Presiding Judge:
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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
ANALYSIS
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(noting that Arizona repealed its anti-miscegenation law before the United
States Supreme Court found such laws unconstitutional).
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The United States Supreme Court vacated the sentence, finding laws which
criminalized interracial marriage unconstitutional. 388 U.S. 1, 3 (1967).
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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, 135 S. Ct. at 2604. As most
recently expressed by the Supreme Court:
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Our society has come to the recognition that gay persons and
gay couples cannot be treated as social outcasts or as inferior
in dignity and worth. For that reason the laws and the
Constitution can, and in some instances must, protect them in
the exercise of their civil rights. The exercise of their freedom
on terms equal to others must be given great weight and
respect by the courts. At the same time, the religious and
philosophical objections to gay marriage are protected views
and in some instances protected forms of expression. As this
Court observed in Obergefell v. Hodges, 135 S. Ct. at 2584, “[t]he
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.” Id. at 2607. Nevertheless, while those religious and
philosophical objections are protected, it is a general rule that
such objections do not allow business owners and other actors
in the economy and in society to deny protected persons equal
access to goods and services under a neutral and generally
applicable public accommodations law. See Newman v. Piggy
Park Enterprises, Inc., 390 U.S. 400, 402 n.5 (1968) (per curiam);
see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these
are well within the State’s usual power to enact when a
legislature has reason to believe that a given group is the
target of discrimination, and they do not, as a general matter,
violate the First or Fourteenth Amendments”).
I. Standing
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7 At the time Appellants filed their complaint they had not yet
received a request to provide services for a same-sex wedding. After they
filed their complaint, however, they received such a request, though both
the court and Appellants agreed the request was likely in retaliation for
Appellants’ lawsuit. Appellants did not respond to the inquiry.
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schools and law faculties, sought to bar the military’s presence on campus
because it opposed the military’s policy of forbidding individuals from
joining the Armed Forces if they “engaged in homosexual acts,” identified
as “homosexual,” or “married a person of the same sex.” Id. at 52 n.1. FAIR
argued that the Solomon Amendment violated its First Amendment right
of free speech and freedom of association by forcing the schools to allow
military recruiters on campus. Id. at 52-53. The Supreme Court rejected
FAIR’s argument, finding the Solomon Amendment did not limit what
schools could say, but rather what they could do. Id. at 60. The Supreme
Court recognized that while in some circumstances the Solomon
Amendment may require the schools to speak, such as by sending out e-
mails notifying students about the military recruiters’ presence, this speech
was merely incidental to the properly mandated conduct. Id. at 61-62.
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¶28 Although Section 18-4(B) regulates conduct, this is not the end
our inquiry. Next, we must determine whether the conduct regulated by
Section 18-4(B) is inherently expressive.10 Rumsfeld, 547 U.S. at 65. Conduct
is entitled to full First Amendment protections if the “speaker” intended to
convey a particularized message by the conduct and if, given the
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City of St. Paul, 505 U.S. 377, 389 (1992) (“[W]ords can in some circumstances
violate laws directed not against speech but against conduct.”). Thus,
“[p]osting language on a website telling potential customers that a business
will discriminate based on sexual orientation is part of the act of sexual
orientation discrimination itself; as conduct carried out through language,
[and] this act is not protected by the First Amendment.” Telescope Media
Grp., 271 F.Supp.3d at 1112 (citing Rumsfeld, 547 U.S. at 62); see also
Masterpiece Cakeshop, Ltd., slip op. at 12 (noting that a baker interposing a
sincere religious objection to providing a wedding cake for a gay couple
was entitled to a neutral and respectful consideration of his claim, but
disapproving of the baker or other businesses posting signs saying “no
goods or services will be sold if they will be used for gay marriages,”
observing such would “impose a serious stigma on gay persons.”).
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(App. 1991) (quoting Jaycees, 468 U.S. at 623). We have previously found
that eliminating discrimination constitutes a compelling interest. See
Jaycees, 468 U.S. at 626 (“Assuring women equal access to such goods,
privileges, and advantages clearly furthers compelling state interests.”).
Further we have found that antidiscrimination ordinances are not aimed at
the suppression of speech, but at the elimination of discriminatory conduct.
Id. at 625; accord Telescope Media Grp., 271 F.Supp.3d at 1112. Appellants’
compliance with Section 18-4(B) does not hinder their freedom to associate;
as previously noted, Appellants remain free to disclaim and/or post their
belief that their religion only recognizes marriage between one man and
one woman. That said, however, Appellants cannot deny access to their
goods and services based on potential customers’ sexual orientation.
¶39 Section 18-4(B) does not by its terms implicate speech. Thus,
Appellants must prove that Section 18-4(B)’s overbreadth is real and
substantial, which they have failed to do. We decline to entertain
Appellants and amici’s parade of hypotheticals that, if present, could
potentially render Section 18-4(B) overbroad. Instead, we review on a case-
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(Emphasis added.)
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can be severed from the remaining valid portions of the Ordinance.”) (citing
Randolph v. Groscost, 195 Ariz. 423, 426-27, ¶ 13 (1999)). Instead, we consider
whether the invalid portion of Section 18-4(B)(3) can be severed from the
remainder of the ordinance and assess whether “the valid portion,
considered separately, can operate independently and is enforceable and
workable.” Randolph, 195 Ariz. at 427, ¶ 15.
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13 Brush & Nib does not explicitly argue on appeal that §18-4(B)
violates the Free Exercise Clause of the First Amendment; however, even
assuming such an argument was advanced, Phoenix’s obligation is to not
enact, interpret or apply its laws or regulations based on hostility to a
religion or religious viewpoint. There is no evidence in the record to
support any suggestion that Phoenix’s adoption of §18-4(B), or its
interpretation as it relates to Brush & Nib, has been anything other than
neutral toward and respectful of their sincerely-expressed religious beliefs.
See Masterpiece Cakeshop, Ltd., slip op. at 16-18. Further, as noted by Justice
Kagan in her concurring opinion in Masterpiece Cakeshop, Ltd., “As this
Court has long held, and reaffirms today, a vendor cannot escape a public
accommodations law because his religion disapproves selling a product to
a group of customers, whether defined by sexual orientation, race, sex, or
other protected trait. A vendor can choose the product he sells, but not the
customers he serves—no matter the reason.” (Internal citation omitted.)
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CONCLUSION
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