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.
Featuring:
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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On October 8, 2019, the U.S. Supreme Court will hear a trio of Title VII cases asking whether discrimination because of “sex” could include differential treatment based on sexual orientation (Zarda and Bostock) or transgender status (Harris Funeral Homes). On October 10, John Bursch, who will be arguing the Harris case, will give his take on the arguments and what the Supreme Court’s definition of “sex” portends for the future of employment law, equal opportunities in athletics, and bodily privacy.
Featuring:
John J. Bursch, Owner, Bursch Law PLLC

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Last term in Gundy v. U.S., without Justice Kavanaugh the Court was split between a restoration of a substantial limitation on the administrative state and the status quo. In this case, as Justice Gorsuch described it, Congress gave “the nation’s chief prosecutor… the power to write his own criminal code governing the lives of a half-million citizens.” This case has enormous implications for how much power federal bureaucrats can be given by Congress. The panelists will discuss this case and a potential future without such extensive power for federal agencies.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.