Paul Bender, Professor of Law, Dean Emeritus, and Former Deputy Solicitor General of the United States
The United States and the State of Arizona both have laws that prohibit businesses that serve the public from refusing to serve customers because of the customers’ race, sex, religion, national origin, or disability. Neither law includes sexual orientation among the bases for refusal of service that are prohibited. Phoenix, Tucson, Tempe, and Flagstaff, however, have each adopted anti-discrimination public‑accommodations ordinances that do apply to discrimination on the basis of sexual orientation. On September 16, in a decision that has received national attention, the Arizona Supreme Court decided Brush & Nib v. City of Phoenix—a case raising the question whether Phoenix’s Ordinance could be used by the City to penalize the owners of a Phoenix artwork business who refused to design invitations to same-sex wedding ceremonies as a matter of religious principle.
The owners of Brush & Nib Studios are devout Christians. Their Phoenix Studio designs artwork for business and social occasions, including custom‑designed wedding invitations. Same‑sex marriage is contrary to the owners’ Christian beliefs. They make clear to anyone who might be interested that, for that reason, they do not wish to design materials for same‑sex weddings. The owners would like to clarify that they may legally refuse to do that. A Phoenix Ordinance prohibits businesses like theirs from refusing service to customers because of the customers’ sexual orientation. The owners say that they are afraid that, if they were to refuse in the future to design custom invitations to a same-sex wedding, they would expose themselves to criminal penalties under the Phoenix Ordinance.
In an effort to establish their rights and remove that potential exposure, Brush & Nib’s owners brought suit in Maricopa County Superior Court. The suit seeks to enjoin Phoenix from applying its Ordinance to them, should they in the future deny a same‑sex wedding invitations request. The suit bases its claim for relief on the protection of free expression afforded by the Arizona Constitution and also on the Arizona Free Exercise of Religion Act (FERA), which prohibits government from imposing substantial burdens on the free exercise of religion in the absence of a compelling justification. The Superior Court denied the injunction request and the Court of Appeals affirmed. The Arizona Supreme Court, however, reversed, holding that both the Arizona Constitution and FERA prohibit Phoenix from using its Ordinance to force Brush & Nib’s owners to “create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs.” Brush & Nib Studio v. City of Phoenix, No. CV-18-0176-PR, 2019 WL 4400328, at *1 (Ariz. Sept. 16, 2019).
The Brush & Nib decision has been controversial—praised and deplored both locally and nationally. Brush & Nib was not an easy case for the Court to decide. It took more than eight months after oral argument for the Court to reach its decision. The seven Justices split four to three on the result when they finally reached a decision and, in a Court with a strong tradition of acting unanimously, five of the Justices wrote opinions totaling almost 80 pages to explain their votes.
The Brush & Nib case addresses an aspect of the tension that often seems to exist between principles of free expression and free exercise of religion, on the one hand, and the desire of communities like Phoenix to prohibit discrimination against the members of a vulnerable minority group, on the other. At the extremes it seems relatively easy to resolve any conflict between the potentially competing rights. Individuals clearly have the right to disagree, on the basis of their religious principles, with the U.S. Supreme Court’s recognition of a constitutional right to same‑sex marriage. But I hope that there is broad agreement that such religiously based views, however fully sincere, do not justify a flat refusal, on the basis of religion, to serve or do business of any kind with same‑sex married couples in jurisdictions that have enacted public accommodations laws that prohibit sexual-orientation discrimination. A restaurant owner would not be justified in refusing to serve a meal to a married couple, merely because it is a same-sex married couple. At the other end of the scale, I hope that there will be agreement that people opposed to same‑sex marriage for reasons of religious principle should not be legally compelled, except in extraordinary circumstances, to conduct or participate in same‑sex marriage ceremonies that violate their religious principles. A clergyman paid to perform marriage ceremonies should not ordinarily be required by law to perform or assist in same‑sex marriage ceremonies that clash with the clergyman’s religious principles.
Can conflicts involving less extreme positions also be reconciled? I think that they can. To me, the overriding consideration should be that, although people are constitutionally entitled to practice their own religion (unless doing so would inflict harm on others) they may not impose their religious principles on others who do not share those principles. A same‑sex couple has a constitutional right to marry, but does not have a right to compel others, who religiously oppose same-sex marriage, to participate in their same-sex marriage ceremony. By the same token, people who oppose same-sex marriage for religious reasons have the constitutional right to continue to believe that same-sex marriage should not be permissible, and to refuse actively to participate in same-sex marriage ceremonies, but they do not have the right to impose discriminatory burdens on those who exercise their right of same-sex marriage.
I believe therefore that the basic question before the Supreme Court in the Brush & Nib case was whether, if the owners of Brush & Nib were to be asked in the future by a same sex-couple to design custom wedding invitations, that future request should be treated as a request that the owners of Brush & Nib participate in a same-sex marriage ceremony, or whether such a refusal should be treated as the imposition of a burden on the same-sex couple because of the exercise of their marriage right. In the terms of this approach, the majority of the Arizona Supreme Court held in Brush & Nib that a future denial by the studio of a request the it design custom invitations for a same-sex wedding ceremony should be treated as the Studio’s refusal to participate in same-sex marriage, rather than as the Studio’s imposition of a discriminatory burden on the right of same-sex marriage.
Whether you agree or disagree with the Court about this, you ought to be struck by the fact that in Brush & Nib the Court ruled on a controversy that did not actually exist and that most likely will never exist. At the time that Brush & Nib’s owners initiated this litigation, Brush & Nib had never been asked by any single-sex couple to design custom invitations to a single-sex wedding ceremony. It is extremely unlikely as well that Brush & Nib, which has publicly announced its completely firm religious objection to same-sex marriage, will ever be the recipient of such a good faith request. To put it bluntly, Bush & Nib v. City of Phoenix was a hypothetical case.
For many good reasons courts in the United States generally do not decide hypothetical cases. Federal and state courts sometimes issue declaratory judgments in civil cases to resolve disputes that have not yet actually arisen, but they almost always will do that only when the plaintiff establishes that a specific dispute is imminent and that a judicial declaration of rights is needed to help people in good faith avoid unnecessary liability. A specific imminent dispute was plainly not present in Brush & Nib v. City of Phoenix. The Brush & Nib majority recognized that problem, but thought that a declaratory judgment was nevertheless appropriate in order to remove what the Court majority supposed was the “chilling effect” the Phoenix Ordinance would otherwise have on the ability of Brush & Nib’s owners to stay in business while remaining true to their religious principles. I find it difficult, however, to understand how Brush & Nib’s religious freedom would be meaningfully “chilled” by a nonexistent threat that a same-sex couple would, in the future, seriously and in good faith ask Brush & Nib to custom-design invitations to their same-sex wedding.
The good reasons not to decide hypothetical cases are all present in Brush & Nib. Their presence definitely had a limiting effect on the majority’s opinion. In the absence of an actual good faith request by a real same-sex couple that Brush & Nib design their wedding invitations, the Court had to imagine facts on which it could rule. It decided to imagine that an engaged single-sex couple would someday ask Brush & Nib to design a custom wedding invitation similar to one of several different sample custom invitations that Brush & Nib provided to the Court. Those invitations, however, were invitations to heterosexual, not same-sex, weddings. Should a same-sex couple in the future ever actually ask Brush & Nib to custom-design their wedding invitations, it would be a remarkable coincidence if the couple were to ask Brush & Nib for a custom invitation identical to one of the sample custom invitations to a heterosexual wedding that Brush & Nib provided to the Court. So what specific custom-designed wedding invitations did the Brush & Nib Court say that it would be unconstitutional for a future same-sex couple to require Brush & Nib to prepare? The specifics make a difference, as shown by the majority’s repeated insistence in Brush & Nib that its decision was narrow and applicable only to custom invitations that “celebrate” same-sex marriages. But how is one to tell a celebratory invitation from a non-celebratory invitation, and aren’t there other features of a wedding invitation that indicate whether one is being invited to a celebratory rather than a non-celebratory wedding ceremony? The Court would have been wiser, I think, had the Brush & Nib Court declined to decide the hypothetical controversy that was the only controversy before it. Because it was not able to rule on the specific facts of a real case, the only opinion that the majority was able to agree on unfortunately provides little, if any, useful direction to lower courts (and itself) about how to decide future cases in this extremely sensitive area of constitutional law.