IN THE
SUPREME COURT OF THE STATE OF ARIZONA
BRUSH & NIB STUDIO, LC, ET AL.,
Plaintiffs/Appellants/Cross-Appellees,
V.
CITY OF PHOENIX,
Defendant/Appellee/Cross-Appellant.
No. CV-18-0176-PR
Filed September 16, 2019
Appeal from the Superior Court in Maricopa County
The Honorable Karen A. Mullins, Judge
No. CV2016-052251
REVERSED IN PART
Opinion of the Court of Appeals, Division One
244 Ariz. 59 (App. 2018)
VACATED IN PART
COUNSEL:
Jeremy D. Tedesco, Jonathan A. Scruggs (argued), Samuel D. Green, Kristen
K. Waggoner, John J. Bursch, Alliance Defending Freedom, Scottsdale,
Attorneys for Brush & Nib Studio, LC, Breanna Koski and Joanna Duka
Colin F. Campbell, Eric M. Fraser (argued), Joshua D. Bendor, Osborn
Maledon, P.A., Phoenix; Cris Meyer, Phoenix City Attorney, Heidi E.
Gilbert, Assistant Chief Counsel, Brad Holm, Phoenix Aviation Department
General Counsel, Phoenix, Attorneys for City of Phoenix
Nathan W. Kellum, Center for Religious Expression, Memphis, TN and
Samuel J. Doncaster, Doncaster Law, PLLC, Phoenix, Attorneys for Amicus
Curiae Center for Religious Expression
Joshua Carden, Joshua Carden Law Firm, PC, Scottsdale Attorney for
Amicus Curiae Jewish Coalition for Religious Liberty
BRUSH & NIB ET AL. V. CITY OF PHOENIX
Opinion of the Court
David L. Rose, Rose Law Office PLLC, Phoenix, Attorneys for Amicus
Curiae Arizona Legislators
Stewart Salwin, Statecraft PLLC, Phoenix, Attorneys for Amicus Curiae
Tyndale House Publishers, et al.
Kevin L. Beckwith, Kevin L. Beckwith, PC, Phoenix, Attorneys for Amicus
Curiae Law and Economics Scholars
Michael L. Kitchen, Margrave Celmins, P.C., Scottsdale, Attorneys for
Amicus Curiae Cato Institute, et al.
Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona,
Phoenix and Lindsey Kaley, American Civil Liberties Union Foundation,
New York, NY, Attorneys for Amicus Curiae the American Civil Liberties
Union, et al.
Mark Brnovich, Arizona Attorney General, Rusty D. Crandell, Assistant
Solicitor General, Angelina B. Nguyen, Unit Chief Counsel, Phoenix,
Attorneys for Amicus Curiae State of Arizona, et al.
Bert E. Moll, The Law Firm of Bert E. Moll, P.C., Chandler, Attorneys for
Amicus Curiae Tyndale House Publishers, et al.
Robert J. Bozelli, The Bozelli Law Firm, PC, Chandler, Attorneys for Amicus
Curiae Professor Adam J. Macleod
Roopali H. Desai, D. Andrew Gaona, Coppersmith Brockelman PLC,
Phoenix, Attorneys for Amicus Curiae Bloom & Blueprint Event Co., LLC,
et al.
Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix and Alex J.
Luchenitser, Americans United for Separation of Church and State,
Washington, DC, Attorneys for Amicus Curiae Americans United for
Separation of Church and State, et al.
Joshua Carden, Joshua Carden Law Firm, P.C., Scottsdale and Michael K.
Whitehead, Whitehead Law Firm, LLC, Lee’s Summit, MO, Attorneys for
Amicus Curiae Ethics & Religious Liberty Commission of the Southern
Baptist Convention, et al.
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
Opinion of the Court
Stewart Salwin, Statecraft PLLC, Phoenix, Attorney for Amicus Curiae
National Center for Law and Policy
Daniel C. Barr, Barry G. Stratford, Randal B. McDonald, Katherine E. May,
Lindsey M. Huang, Perkins Coie LLP, Phoenix, Attorneys for Amicus
Curiae First Amendment Scholars
Jessica M. Hernandez, MayesTelles PLLC, Phoenix and Jennifer C. Pizer,
Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA,
Attorneys for Amicus Curiae Lambda Legal Defense and Education Fund,
Inc.
Kenneth W. Schutt, Jr., Schutt Law Firm, P.L.C., Scottsdale, Attorneys for
Amicus Curiae The C12 Group, LLC
Amanda Salvione, Greenspoon Marder LLP, Phoenix, Attorney for Amicus
Curiae ONE Community Media, LLC d/b/a ONE Community
JUSTICE GOULD authored the opinion of the Court, in which JUSTICES
BOLICK, LOPEZ, and PELANDER (RETIRED) joined. JUSTICE BOLICK
filed a concurring opinion. JUSTICE BALES (RETIRED), joined by VICE
CHIEF JUSTICE TIMMER and JUDGE STARING, ∗ dissented. VICE CHIEF
JUSTICE TIMMER filed a dissenting opinion. JUDGE STARING filed a
dissenting opinion.
JUSTICE GOULD, opinion of the Court:
¶1 The rights of free speech and free exercise, so precious to this
nation since its founding, are not limited to soft murmurings behind the
doors of a person’s home or church, or private conversations with like–
minded friends and family. These guarantees protect the right of every
*Chief Justice Robert M. Brutinel has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Christopher P. Staring, Judge of the Arizona Court of Appeals, Division
Two, was designated to sit in this matter.
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Opinion of the Court
American to express their beliefs in public. This includes the right to create
and sell words, paintings, and art that express a person’s sincere religious
beliefs.
¶2 With these fundamental principles in mind, today we hold
that the City of Phoenix (the “City”) cannot apply its Human Relations
Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski,
owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom
wedding invitations celebrating same-sex wedding ceremonies in violation
of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib
(“Plaintiffs”) have the right to refuse to express such messages under article
2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise
of Religion Act (“FERA”), A.R.S. § 41-1493.01.
¶3 Our holding is limited to Plaintiffs’ creation of custom
wedding invitations that are materially similar to those contained in the
record. See Appendix 1. We do not recognize a blanket exemption from the
Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on
jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of
other wedding products may be exempt from the Ordinance. See Appendix
2.
¶4 Duka and Koski’s beliefs about same-sex marriage may seem
old-fashioned, or even offensive to some. But the guarantees of free speech
and freedom of religion are not only for those who are deemed sufficiently
enlightened, advanced, or progressive. They are for everyone. After all,
while our own ideas may be popular today, they may not be tomorrow.
Indeed, “[w]e can have intellectual individualism” and “rich cultural
diversities . . . only at the price” of allowing others to express beliefs that
we may find offensive or irrational. West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 641–42 (1943). This “freedom to differ is not limited
to things that do not matter much . . . [t]he test of its substance is the right
to differ as to things that touch the heart of the existing order.” Id. at 642.
¶5 Given this reality, the government “must not be allowed to
force persons to express a message contrary to their deepest convictions.”
Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361, 2379
(2018) (Kennedy, J., concurring). Rather, Plaintiffs are entitled to
continue to advocate with utmost, sincere conviction that, by
divine precepts, same-sex marriage should not be condoned.
The First Amendment ensures that religious organizations
and persons are given proper protection as they seek to teach
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Opinion of the Court
the principles that are so fulfilling and so central to their lives
and faiths, and to their own deep aspirations to continue the
family structure they have long revered.
Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015).
¶6 Although this case is about freedom of speech and religion, it
suits the preferred analysis of our dissenting colleagues to reframe it as one
involving discriminatory conduct based on a customer’s sexual orientation.
This mischaracterization reflects neither Plaintiffs’ position nor our
holding. Literally none of the examples of invidious, status-based
discrimination the dissent invokes, see infra ¶ 217-18, would even be
remotely permitted under our holding today. Plaintiffs must, and they do,
serve all customers regardless of their sexual orientation. However, by
focusing solely on the anti-discrimination purpose of the Ordinance, the
dissent engages in a one–sided analysis that effectively deprives Plaintiffs
of their fundamental right to express their beliefs. But no law, including a
public accommodations law, is immune from the protections of free speech
and free exercise. Rather, “[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.” Barnette, 319
U.S. at 642.
¶7 The enduring strength of the First Amendment is that it
allows people to speak their minds and express their beliefs without
government interference. But here, the City effectively cuts off Plaintiffs’
right to express their beliefs about same–sex marriage by telling them what
they can and cannot say. And to justify this action, both the City and the
primary dissent claim that if we dare to allow Plaintiffs to express their
beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the
Old South.
¶8 But casting Plaintiffs’ free speech and exercise rights in such
a cynical light does grave harm to a society. As Justice Jackson observed in
Barnette, “[s]truggles to coerce uniformity of sentiment in support of some
end thought essential to their time and country have been waged by many
good as well as by evil men,” but, inevitably “those bent on its
accomplishment must resort to an ever-increasing severity.” Barnette, 319
U.S. at 640. We would be wise to heed his warning about government
efforts to compel uniformity of beliefs and ideas:
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Opinion of the Court
[a]s governmental pressure toward unity becomes greater, so
strife becomes more bitter as to whose unity it shall
be. . . . . Ultimate futility of such attempts to compel
coherence is the lesson of every such effort from the Roman
drive to stamp out Christianity as a disturber of its pagan
unity, the Inquisition, as a means to religious and dynastic
unity, the Siberian exiles as a means to Russian unity, down
to the fast failing efforts of our present totalitarian enemies.
Those who begin coercive elimination of dissent soon find
themselves exterminating dissenters. Compulsory unification
of opinion achieves only the unanimity of the graveyard.
Id. at 641.
I.
¶9 Duka and Koski are the sole member-owners of Brush & Nib,
a for-profit limited liability company. Duka and Koski operate Brush & Nib
as an “art studio” specializing in creating custom artwork for weddings,
events, special occasions, home décor, and businesses. Duka and Koski
work out of Koski’s home and personally design and create their products.
In addition to custom-designed products, Brush & Nib sells some pre-made
products. Duka and Koski do not maintain Brush & Nib as a brick-and-
mortar store but instead sell their products online through various media
platforms.
¶10 Apart from Plaintiffs’ custom wedding invitations, the record
contains only a few examples of their products. In contrast, there are
numerous examples of Plaintiffs’ custom wedding invitations. See
Appendix 1. All these custom invitations feature Plaintiffs’ hand-drawn
images and paintings, custom lettering and calligraphy, as well as their
original artwork. Additionally, the names of a female bride and a male
groom are prominently displayed in every custom invitation.
¶11 The City concedes that “[a]ll the custom wedding invitations
Brush & Nib creates include language that is celebratory of the wedding.”
Specifically, Plaintiffs create and write celebratory statements in every
custom invitation, including such statements as “[the couple or their
parents] request the pleasure of your company at the celebration of their
marriage,” “request the honor of your presence,” “invite you to the
celebration of their marriage,” or “invite you to share in the joy of their
marriage.” (Emphasis added.)
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¶12 Plaintiffs closely collaborate with each client in creating their
custom wedding invitations. The client provides the names of the bride
and groom, as well as the location and date of the wedding. A client may
also share preferences regarding the colors and style of the invitation.
Plaintiffs, in turn, propose their artistic ideas for the invitation, including
colors, artwork, text, and phrasing. As part of this process, Plaintiffs
“frequently suggest the particular words to use” in the invitation.
¶13 Once a client signs a contract for their services, Plaintiffs
design and create the invitations. Although a client may ultimately reject
Plaintiffs’ work, the contract states that Brush & Nib “retains complete
artistic freedom with respect to every aspect of the design’s and artwork’s
creation.” The contract provides that the client’s requested design and
artwork must “express[] messages that promote [Brush & Nib’s] religious
or artistic beliefs, or at least are not inconsistent with these beliefs.” Further,
Brush & Nib “reserves the right to terminate” the contract if it subsequently
determines, in its “sole discretion, that the requested design or artwork
communicates ideas or messages . . . that are inconsistent with [Brush &
Nib’s] religious or artistic beliefs.”
¶14 Duka and Koski are Christians. Based on their faith, they do
not believe they can do anything, either in their business or personal lives,
that “violates their religious beliefs or dishonors God.” Thus, in addition
to making a profit, Duka and Koski seek to operate Brush & Nib consistent
with their religious beliefs. For example, Brush & Nib’s Operating
Agreement (the “Agreement”) states that Brush & Nib is a “for-profit
limited liability company” that “is owned solely by Christian artists who
operate [Brush & Nib] as an extension of and in accordance with their
artistic and religious beliefs.” The Agreement sets forth Brush & Nib’s
“Core Beliefs” and provides that “Brush & Nib is unwilling to use its artistic
process” or “create art” that contradicts its religious “beliefs and message.”
The Agreement further provides that Brush & Nib “reserves the right to
deny any request for action or artwork that violates its artistic and religious
beliefs.” As examples of such objectionable artwork, the Agreement states
that Brush & Nib will refuse to create “custom artwork that communicates
ideas or messages . . . that contradict biblical truth, demean others, endorse
racism, incite violence, or promote any marriage besides marriage between
one man and one woman, such as same-sex marriage.”
¶15 Duka and Koski hold traditional Christian beliefs about
marriage. They believe that “God created two distinct genders in His
image,” and that only a man and a woman can be joined in marriage. This
belief is based on the Bible; thus, for example, Plaintiffs cite Matthew 19:4–
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Opinion of the Court
5, which states that God “made them male and female, and said, [f]or this
reason a man shall leave his father and mother and be joined to his wife,
and the two shall become one.” (Internal quotation marks omitted.) Duka
testified that she believes that marriage reflects God’s glory and presents a
picture of “Christ and his love for the church.”
¶16 As a tenet of their faith, Duka and Koski do not believe that
two people of the same sex can be married. Plaintiffs stress that they will
create custom artwork for, and sell pre-made artwork to, any customers
regardless of their sexual orientation. However, they believe that creating
a custom wedding invitation that conveys a message celebrating same-sex
marriage, for any customer regardless of sexual orientation, violates their
sincerely held religious convictions.
A. The Ordinance
¶17 The City of Phoenix’s Ordinance, as amended in 2013,
prohibits public accommodations from discriminating against persons
based on their status in a “protected” group, which includes a person’s
sexual orientation. Phx., Ariz., City Code (“PCC”) § 18-4(B). In contrast,
neither Arizona’s public accommodations law nor the federal civil rights
public accommodations statute lists sexual orientation as a legally
protected status. See A.R.S. § 41-1442(A); 42 U.S.C. § 2000a(a).
¶18 Under the Ordinance, public accommodations include “all
establishments offering their services, facilities or goods to or soliciting
patronage from the members of the general public.” PCC § 18-3. Section
18-4(B)(2) makes it unlawful for any business operating as a public
accommodation to “directly or indirectly[] refuse, withhold from, or deny
to any person . . . accommodations, advantages, facilities or
privileges . . . because of” a person’s status in a protected group.
Additionally, the Ordinance forbids such businesses from making any
“distinction . . . with respect to any person based on” status with respect to
“the price or quality of any item, goods or services offered.” PCC § 18-
4(B)(2).
¶19 Section 18-4(B)(3) also makes it unlawful for a public
accommodation “to directly or indirectly display, circulate, publicize or
mail any advertisement, notice or communication which states or implies
that any facility or service shall be refused or restricted because of” a
person’s status. This subsection also prohibits displays or publications that
state or imply that based on a person’s status they “would be unwelcome,
objectionable, unacceptable, undesirable or not solicited.” Id.
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¶20 Complaints regarding violations of the Ordinance are initially
handled by the City’s Equal Opportunity Department (the “Department”).
PCC § 18-5(A). If the Department determines that there is reasonable cause
to believe that a violation has occurred, it must first attempt to resolve the
violation though “informal methods,” such as conciliation and mediation.
Id. § 18-5(D)(2), (E), (G). However, if the Department finds no reasonable
cause, the complainant may “request that the City Attorney file a criminal
complaint.” Id. § 18-5(D)(1). Further, if the business owner refuses to
correct the violation through informal means, the Department may refer the
matter to the City Attorney for criminal prosecution. Id. § 18-6.
¶21 Pursuant to § 18-7(A), any person convicted of violating the
Ordinance is guilty of a class 1 misdemeanor. As punishment, a violator
may be ordered to serve up to six months in jail or three years’ probation,
or pay a maximum fine of $2,500, or any combination of jail, fines, and
probation. Id. § 1-5. Section 1-5 also provides that “[e]ach day any
violation” continues “shall constitute a separate offense.” Continuing
violations may also “be deemed a public nuisance” and “abated as
provided by law.” Id.
B. Procedural Background
¶22 To date, the City has not cited Plaintiffs for violating the
Ordinance. Plaintiffs filed this action to enjoin the City from enforcing the
Ordinance against them in the future, as well as to obtain a declaration that
the Ordinance violates their right to free speech under article 2, section 6 of
the Arizona Constitution, and their free exercise right under FERA, § 41-
1493.01. As part of their requested declaratory relief, Plaintiffs request an
order allowing them to post a proposed statement (the “Statement”) on
Brush & Nib’s website announcing their intention to refuse requests to
create custom artwork for same-sex weddings. The Statement explains that
Brush & Nib will not “create any artwork that violates our vision as defined
by our religious and artistic beliefs and identity.” It lists several examples
of objectionable artwork, including artwork promoting businesses that
“exploit women or sexually objectify the female body,” exploits the
environment, or “any custom artwork that demeans others, endorses
racism, incites violence, contradicts our Christian faith, or promotes any
marriage except marriage between one man and one woman,” such as
“wedding invitations[] for same-sex wedding ceremonies.”
¶23 The City filed a motion to dismiss, arguing that Plaintiffs
lacked standing to bring this action. Specifically, the City asserted that
Plaintiffs had not yet refused to create any products for a same-sex wedding
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and therefore had not violated the Ordinance. The trial court denied the
motion.
¶24 After an evidentiary hearing, the court denied Plaintiffs’
motion for a preliminary injunction. Following the hearing, each party
moved for summary judgment. The trial court denied Plaintiffs’ motion
but granted the City’s motion. In its ruling, the court concluded that the
Ordinance did not violate Plaintiffs’ rights to free speech or free exercise of
religion under FERA.
¶25 The court of appeals affirmed both the trial court’s denial of
the City’s motion to dismiss and its grant of summary judgment in favor of
the City. Brush & Nib Studio, LC v. City of Phoenix, 244 Ariz. 59, 68–69 ¶ 16,
78 ¶ 55 (App. 2018). The court held that the Ordinance did not violate
Plaintiffs’ freedom of speech or substantially burden their free exercise
rights under FERA. Id. at 72 ¶ 29, 73 ¶ 32, 77 ¶ 49. However, the court
struck down as unconstitutionally vague the provision in § 18-4(B)(3)
prohibiting displays or publications stating or implying that a person in a
protected group “would be unwelcome, objectionable, unacceptable,
undesirable or not solicited.” Id. at 75–76 ¶¶ 43–45 & n.12. The court
severed this provision from the Ordinance, concluding that the remainder
of § 18-4(B)(3) “operates independently and is enforceable.” Id. at 76 ¶ 44.
¶26 We granted review because this case involves constitutional
and statutory issues of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.
II.
¶27 Plaintiffs contest the trial court’s denial of their motion for a
preliminary injunction, as well as the court’s denial of their motion for
summary judgment and grant of summary judgment in favor of the City.
However, we need not review the trial court’s denial of Plaintiffs’ motion
for a preliminary injunction because its rulings on the parties’ summary
judgment motions are dispositive here.
¶28 We review the trial court’s rulings on the motions for
summary judgment de novo. Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545
¶ 7 (2019). We review statutory, constitutional, and mixed questions of law
and fact de novo. City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 210
¶ 10 (2019) (statutes); Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014)
(constitutional questions); Valley Med. Specialists v. Farber, 194 Ariz. 363, 366
¶ 10 (1999) (mixed questions of law and fact).
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¶29 Plaintiffs concede Brush & Nib is a public accommodation as
defined by PCC § 18-3. However, they argue that the Ordinance, as applied
by the City, compels them to use their artistic talents and personal
expression to create custom invitations celebrating same-sex weddings in
violation of their free speech rights under article 2, section 6 of the Arizona
Constitution and their free exercise rights under FERA. Plaintiffs assert
they will serve all customers, regardless of their sexual orientation.
However, they refuse to create or express certain messages, regardless of
who makes the request. This includes creating custom invitations that
celebrate a same-sex marriage ceremony.
¶30 The City concedes that the Ordinance does not require Duka
and Koski to express any messages condoning or celebrating same-sex
marriage. Thus, for example, the City agrees that the Ordinance does not
require Duka and Koski to create a custom invitation containing the
statement, “support gay marriage,” or symbols, such as the equal sign of
the Human Rights Campaign, that would be recognized by a third-party
observer as expressly endorsing same-sex marriage. The City argues,
however, that the Ordinance, as applied to Plaintiffs’ custom wedding
invitations, regulates conduct, not speech. Thus, by refusing to create or
sell such invitations for use in same-sex weddings, the City contends that
Plaintiffs are engaging in discriminatory conduct prohibited by the
Ordinance.
¶31 For their remedy, Plaintiffs generally seek relief permitting
them to (1) refuse requests to create custom-made wedding products for
same-sex weddings, and (2) post their Statement regarding their intention
to refuse such services. Alternatively, Plaintiffs seek partial relief limited to
their creation of custom wedding invitations that are “materially similar”
to the invitations contained in the record.
¶32 Plaintiffs originally raised both facial and as-applied
challenges to the constitutionality of the Ordinance. However, because
Plaintiffs’ facial challenge was limited to the provision struck down by the
court of appeals (a ruling neither party challenges here), only Plaintiffs’ as-
applied challenge remains. See Brush & Nib, 244 Ariz. at 75–76 ¶¶ 43–45 &
n.12. Thus, we need not consider the general validity of the Ordinance or
the Ordinance’s application to other individuals or businesses that are not
before this Court. See Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (stating
that “a statute or a rule may be held constitutionally invalid as applied
when it operates to deprive an individual of a protected right although its
general validity . . . is beyond question,” and that “in cases involving
religious freedom, free speech or assembly, this Court has often held that a
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Opinion of the Court
valid statute was unconstitutionally applied in particular circumstances
because it interfered with an individual’s exercise of those rights”).
III.
¶33 The City argues the trial court erred in denying its motion to
dismiss based on Plaintiffs’ lack of standing. Specifically, the City asserts
that because Plaintiffs filed this action “before any same-sex couple had
requested custom wedding products,” their lawsuit is based on speculative
claims about how the Ordinance might apply to hypothetical customer
requests involving Plaintiffs’ entire range of custom products. Because
none of these abstract legal claims may ever arise, the City contends that
Plaintiffs’ action challenging PCC § 18-4(B)(2) is not ripe and should be
dismissed.
¶34 We ordinarily review a trial court’s ruling on a motion to
dismiss for an abuse of discretion, Legacy Foundation Action Fund v. Citizens
Clean Elections Commission, 243 Ariz. 404, 405 ¶ 6 (2018), but questions of
standing and ripeness are reviewed de novo, In re Estate of Stewart, 230 Ariz.
480, 483–84 ¶ 11 (App. 2012) (ripeness); Aegis of Ariz., L.L.C. v. Town of
Marana, 206 Ariz. 557, 562 ¶ 16 (App. 2003) (standing).
¶35 Although the Arizona Constitution does not have a case or
controversy requirement like the Federal Constitution, we do apply the
doctrines of standing and ripeness “as a matter of sound judicial policy.”
Bennett v. Napolitano, 206 Ariz. 520, 524 ¶ 16 (2003). Because in this case the
underlying concerns for standing and ripeness are the same, we simply use
the term “ripeness” to apply to both doctrines here. See Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (“The constitutional
component of the ripeness inquiry is often treated under the rubric of
standing and, in many cases, ripeness coincides squarely with standing’s
injury in fact prong.”); Town of Gilbert v. Maricopa Cty., 213 Ariz. 241, 244 ¶ 8
(App. 2006) (stating that “[r]ipeness is analogous to standing”).
¶36 Ripeness is a prudential doctrine that prevents a court from
rendering a premature decision on an issue that may never arise. Winkle v.
City of Tucson, 190 Ariz. 413, 415 (1997). Though federal justiciability
jurisprudence is not binding on Arizona courts, the factors federal courts
use to determine whether a case is justiciable are instructive. See Bennett,
206 Ariz. at 525 ¶ 22. Thus, as a general matter, if the plaintiff has incurred
an injury, the case is ripe. See Brewer v. Burns, 222 Ariz. 234, 238 ¶ 15 (2009).
A case is also ripe if there is an actual controversy between the parties.
Estate of Stewart, 230 Ariz. at 484 ¶ 12; see Planned Parenthood Ctr. of Tucson,
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Inc. v. Marks, 17 Ariz. App. 308, 312–13 (1972) (stating that challengers of
statute forbidding abortions under certain circumstances were not required
to wait for criminal prosecution because that statute allegedly chilled their
constitutional rights and therefore constituted an actual controversy).
¶37 Here, we need not speculate about how the Ordinance might
apply to customer requests for Plaintiffs’ custom wedding invitations.
While it is true that, for most of Plaintiffs’ products, the factual record is not
sufficiently developed, that is not the case with respect to the custom
invitations. The record, as reflected by the exhibits contained in Appendix
1, contains numerous examples of Plaintiffs’ custom wedding invitations.
All of these invitations contain detailed examples of Plaintiffs’ words,
drawings, paintings, and original artwork, and Duka and Koski have
testified about their process of designing and creating these custom
invitations. Supra ¶¶ 9–14. Additionally, in their briefs, the parties have
analyzed, in detail, the legal claims and arguments based on these custom
invitations.
¶38 Finally, because Plaintiffs have specifically asked this Court,
as an alternative form of relief, to limit our decision to custom wedding
invitations that are materially similar to the invitations contained in the
record, supra ¶ 31, we may limit our analysis and holding to Plaintiffs’
creation of this specific product. See A.R.S. § 41-1493.01(D) (permitting
FERA claimants to “obtain appropriate relief against a government”
(emphasis added)); Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (stating that
“the scope of injunctive relief is dictated by the extent of the violation
established”).
¶39 Thus, we conclude there is an actual case and controversy that
exists regarding Plaintiffs’ creation of custom wedding invitations that are
materially similar to those in the record. Duka and Koski face a real threat
of being prosecuted for violating the Ordinance by refusing to create such
invitations for a same-sex wedding. See Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298, 300–01 (1979) (finding standing despite the lack of
a concrete factual situation or criminal enforcement of the statute against
the challenger because the threshold issue, whether the challengers’ activity
was protected as free speech, was justiciable); see also A.R.S. § 12-1832
(authorizing any person “whose rights . . . are affected by a . . . municipal
ordinance” to seek declaratory relief on the validity of the ordinance and
“obtain a declaration of rights, status or other legal relations thereunder”).
In contrast, Plaintiffs’ sweeping challenge to the Ordinance as applied to all
of Brush & Nib’s remaining custom wedding products (as reflected in
Appendix 2) implicates a multitude of possible factual scenarios too
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Opinion of the Court
“imaginary” or “speculative” to be ripe. Thomas, 220 F.3d at 1139 (quoting
Babbitt, 442 U.S. at 298).
¶40 Additionally, given the City’s assertion that it can apply the
Ordinance to Plaintiffs’ custom wedding invitations, which includes the
threat of criminal prosecution and significant penalties, Plaintiffs have
suffered an injury through the chilling of their free speech and free exercise
rights. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (holding
there was an injury to challenger’s speech rights prior to a challenged
criminal statute becoming effective, where the state never stated it would
not enforce the statute).
¶41 Accordingly, we agree with the trial court and the court of
appeals that, to the extent Plaintiffs’ action is based on their custom
wedding invitations, it is justiciable. We therefore affirm the trial court and
the court of appeals’ denial of the City’s motion to dismiss as to Plaintiffs’
custom wedding invitations. Brush & Nib, 244 Ariz. at 68–69 ¶ 16.
However, Plaintiffs’ claims based on their remaining custom products are
not ripe, and we therefore reverse and grant the City’s motion to dismiss as
to these products.
IV.
¶42 Plaintiffs allege that the Ordinance, as applied by the City,
compels them to create custom wedding invitations celebrating same-sex
marriage in violation of Arizona’s free speech clause. See Ariz. Const. art.
2, § 6 (stating that “[e]very person may freely speak, write, and publish on
all subjects, being responsible for the abuse of that right”).
¶43 Generally, “[w]e will not reach a constitutional question if a
case can be fairly decided on non[-]constitutional grounds.” R.L. Augustine
Constr. Co., Inc. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368, 370 (1997).
However, when constitutional and non-constitutional issues are
intertwined in a case, we must address the constitutional issue. See State v.
Church, 109 Ariz. 39, 41 (1973); Katherine S. v. Foreman, 197 Ariz. 371, 378
¶ 16 (App. 1999) (deciding constitutional issue because the issue was
“intertwined” with non-constitutional issue and citing Church for the
proposition that the “fact that constitutional and non-constitutional issues
are interwoven justifies addressing all issues”).
¶44 Here, because Plaintiffs’ FERA claim is closely intertwined
with their free speech claim, we find it necessary to address the
constitutional issue in this case. Katherine S., 197 Ariz. at 378 ¶ 16; see also
Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150,
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Opinion of the Court
160-69 (2002) (discussing both freedom of speech and free exercise as the
plaintiff’s exercise of both rights were affected by challenged law); cf.
Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) (collecting cases
analyzing both freedom of speech and free exercise); Masterpiece Cakeshop,
Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1740–48 (2018) (Thomas, J.,
concurring) (analyzing free speech issue despite concluding that
challengers’ free exercise rights were violated). The legal and factual
questions underlying Plaintiffs’ free speech and FERA claims require us to
address the same basic issues: (1) whether the Ordinance, as applied by the
City, compels Plaintiffs to express a message that violates their religious
convictions, and (2) if so, whether Plaintiffs have a protected right to refuse
to express that message in the operation of their business.
¶45 In examining the text of Arizona’s free speech clause, we first
observe that whereas the First Amendment is phrased as a constraint on
government, U.S. Const. amend. I (“Congress shall make no law . . .
abridging the freedom of speech.”), our state’s provision, by contrast, is a
guarantee of the individual right to “freely speak, write, and publish,”
subject only to constraint for the abuse of that right. See State v. Stummer,
219 Ariz. 137, 142 ¶ 14 (2008); see also id. ¶ 15 (“The encompassing text of
[a]rticle 2, [s]ection 6 indicates the Arizona framers’ intent to rigorously
protect freedom of speech.”). Thus, by its terms, the Arizona Constitution
provides broader protections for free speech than the First Amendment.
See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (stating
that article 2, section 6 “is in some respects more protective of free speech
rights than the First Amendment”); Stummer, 219 Ariz. at 143 ¶ 17 (“We
have also stated that [a]rticle 2, [s]ection 6 has ‘greater scope than the [F]irst
[A]mendment.’” (citation omitted)); Mountain States Tel. & Tel, Co. v. Ariz.
Corp. Comm’n, 160 Ariz. 350, 356 (1989) (“[W]e apply here the broader
freedom of speech clause of the Arizona Constitution.”).
¶46 However, although article 2, section 6 does, by its terms,
provide greater speech protection than the First Amendment, we have
rarely explored the contours of that right. Rather, we have often relied on
federal case law in addressing free speech claims under the Arizona
Constitution. Stummer, 219 Ariz. at 142 ¶ 16 (stating that “Arizona courts
have had few opportunities to develop Arizona’s free speech
jurisprudence,” and in “construing [a]rticle 2, [s]ection 6 have followed
federal interpretations of the United States Constitution”); Mountain States,
160 Ariz. at 358 (looking to First Amendment precedent in determining that
a government regulation violated Arizona’s free speech clause). Here,
while Plaintiffs generally assert that their compelled speech claim, see infra
Section IV(A)–(D), is based on the Arizona Constitution, in arguing that
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Opinion of the Court
claim they rely almost exclusively on federal cases construing the First
Amendment.
¶47 This, however, presents no difficulty for us in resolving
Plaintiffs’ compelled speech claim. Specifically, because federal precedent
conclusively resolves Plaintiffs’ claim, we can adequately address it under
First Amendment jurisprudence. And, because a violation of First
Amendment principles “necessarily implies” a violation of the broader
protections of article 2, section 6 of the Arizona Constitution, by applying
First Amendment jurisprudence, we therefore address Plaintiffs’ state
claim. Coleman, 230 Ariz. at 361 ¶ 36 n.5 (noting that because plaintiffs had
adequately stated a claim under the First Amendment, this “necessarily
implie[d] that they ha[d] also stated claims under [a]rticle 2, [s]ection 6 of
Arizona’s Constitution,” and thus there was no need to address whether
Arizona’s free speech clause “might afford greater protection . . . than
applies under the First Amendment”); see also Mountain States, 160 Ariz.
at 358 (“As we have already determined that ‘narrow specificity’ is a
requirement of a time, place, and manner regulation under the [F]irst
[A]mendment, we must hold the same under the more stringent protections
of the Arizona Constitution.”).
A. Compelled Speech
¶48 The compelled speech doctrine is grounded on the principle
that freedom of speech “includes both the right to speak freely and the right
to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977);
see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557,
573 (1995) (“[O]ne important manifestation of the principle of free speech is
that one who chooses to speak may also decide what not to say.” (citation
and internal quotation marks omitted)); Riley v. Nat’l Fed’n of the Blind of
N.C., 487 U.S. 781, 796–97 (1988) (stating that the First Amendment
guarantee of free speech necessarily includes the freedom of deciding “both
what to say and what not to say”).
¶49 The compelled speech doctrine was first articulated in
Barnette. There, the Supreme Court addressed a state law requiring a child
who was a Jehovah’s Witness to salute the American flag. 319 U.S. at 626–
29. For both the child and his parents, saluting the flag violated their
religious beliefs. Id. at 629. The Court struck down the law as violating the
First Amendment, stating that the government cannot compel any
individual “to utter what is not in his mind,” id. at 634, and that all citizens
have autonomy over their “opinion[s] and personal attitude[s],” id. at 631,
636; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (stating
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Opinion of the Court
that “[a]t the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs deserving
of expression, consideration, and adherence,” and that any “[g]overnment
action that . . . requires the utterance of a particular message favored by the
Government[] contravenes this essential right”).
¶50 There are, generally speaking, two lines of cases addressing
compelled speech. The first involves regulations requiring an individual to
express a prescribed government message. For example, in Wooley, the
Court held that a law was unconstitutional because it forced a Jehovah’s
Witness, in violation of his religious beliefs, to display the state motto “Live
Free or Die” on his license plate. 430 U.S. at 707–08, 717; see also NIFLA, 138
S. Ct. at 2368–69, 2378 (holding that plaintiffs were likely to succeed in their
claim that a state law unconstitutionally compelled speech by requiring
crisis pregnancy centers, which were established to prevent abortions, to
disseminate prescribed government notices about public funding for
abortion services).
¶51 A second line of compelled speech cases involves a
government regulation that compels a person to host or accommodate
another’s message. See, e.g., Hurley, 515 U.S. at 572–73, 581 (holding that a
state public accommodations law could not be used to compel a parade
sponsor to host or accommodate messages from parade participants the
sponsor found to be objectionable). This line of cases includes government
regulations compelling a person to engage in self-censorship to avoid
hosting another’s message, as well as regulations forcing a person to
respond to another’s speech when they would prefer to remain silent. See
Pac. Gas & Elec. Co. v. Pub. Util. Comm’n, 475 U.S. 1, 5–7, 16–17, 21 (1986)
(plurality opinion) (holding that a regulation requiring a privately-owned
utility to include, along with its monthly bills, an editorial newsletter
published by a consumer group that was critical of its ratemaking practices
violated the utility’s free speech rights because the utility might “feel
compelled to respond to arguments and allegations made by [the consumer
group]”); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 244, 256–58 (1974)
(holding that a statute granting political candidates the right to reply to
unfavorable newspaper articles violated the First Amendment because it
forced newspapers to either respond to the candidates’ replies or engage in
compelled self-censorship by forgoing printing any articles criticizing a
candidate).
¶52 The fundamental principle underlying both lines of
compelled speech cases is that an individual has autonomy over his or her
speech and thus may not be forced to speak a message he or she does not
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wish to say. Hurley is instructive on this point. There, a private group of
veterans (the “Council”) was granted a permit by the City of Boston to
sponsor a St. Patrick’s Day parade. Hurley, 515 U.S. at 560. However, the
Council refused to allow a group of gay, lesbian, and bisexual descendants
of Irish immigrants (“GLIB”) to march “behind a shamrock-strewn banner”
stating, “Irish American Gay, Lesbian and Bisexual Group of Boston.” Id.
at 561, 570. The Supreme Judicial Court of Massachusetts subsequently
determined that the Council’s refusal violated the state public
accommodations law. Id. at 563–64.
¶53 The United States Supreme Court reversed, holding that
because the parade was a form of protected speech under the First
Amendment, the public accommodations law could not be used to compel
the Council to host GLIB’s message. Id. at 568–69, 573. The Court stated
that “whatever the [Council’s] reason” for keeping GLIB’s message out of
the parade, “it boils down to the choice of a speaker not to propound a
particular point of view, and that choice is presumed to lie beyond the
government’s power to control.” Id. at 575. The Court held that compelling
the Council to host GLIB’s message “violate[d] the fundamental rule of
protection under the First Amendment, that a speaker has the autonomy to
choose the content of his own message.” Id. at 573. Hurley further
emphasized that “when dissemination of a view contrary to one’s own is
forced upon a speaker intimately connected with the communication
advanced, the speaker’s right to autonomy over the message is
compromised.” Id. at 576; see also Wooley, 430 U.S. at 715 (“Here, as in
Barnette, we are faced with a state measure which forces an individual . . . to
be an instrument for fostering public adherence to an ideological point of
view he finds unacceptable. In doing so, the State ‘invades the sphere of
intellect and spirit which it is the purpose of the First Amendment to our
Constitution to reserve from all official control.’” (quoting Barnette, 319 U.S.
at 642)).
¶54 The importance of protecting an individual’s autonomy over
his or her speech was most recently addressed in Janus v. American
Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448
(2018). There, Janus, a nonunion employee, objected to paying “agency
fees” to a union. Id. at 2461–62. The union claimed the agency fees were
based on collective bargaining activities benefiting both union and
nonunion employees. See id. at 2461. However, Janus objected to paying
any fees to the union because he disagreed with its collective bargaining
position, which he believed was having a negative effect on the state’s
“fiscal crises.” Id. at 2461–62.
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Opinion of the Court
¶55 The Supreme Court concluded that requiring Janus to pay the
agency fees violated his free speech rights because it compelled him to
subsidize the union’s speech. Id. at 2466, 2486. The Court stated that
“[c]ompelling individuals to mouth support for views they find
objectionable violates” the “cardinal constitutional command” that
individuals have autonomy over their speech. Id. at 2463. The Court
explained that “[f]ree speech serves many ends,” and “[w]henever the
Federal Government or a State prevents individuals from saying what they
think on important matters or compels them to voice ideas with which they
disagree, it undermines these ends.” Id. at 2464. The Court further
explained that “[w]hen speech is compelled . . . additional damage is done”
because it “forc[es] free and independent individuals to endorse ideas they
find objectionable[, which] is always demeaning,” and coerces individuals
“into betraying their convictions.” Id.
B. Protected Speech
¶56 To prevail on their compelled speech claim, Plaintiffs first
must show that their custom wedding invitations are protected speech
under the First Amendment. See Hurley, 515 U.S. at 568–70 (examining
whether, as a threshold matter, a parade involves protected speech); see also
Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (FAIR), 547 U.S. 47, 64 (2006)
(determining, as an initial matter, that access to law school interview rooms
did not involve protected speech); Coleman, 230 Ariz. at 357 ¶ 18 (“To
determine if the Colemans have stated a claim for a violation of their free
speech rights, we must determine whether tattooing is constitutionally
protected expression.”).
¶57 Plaintiffs assert that their custom invitations are “pure
speech,” and therefore fully protected. The City, however, contends that
Plaintiffs’ invitations contain no constitutionally relevant speech
component. Rather, according to the City, applying the Ordinance to
require Duka and Koski to create custom invitations for same-sex weddings
purely involves conduct, without implicating speech.
1. Pure Speech
¶58 Pure speech is protected under both the Arizona Constitution
and the First Amendment. Coleman, 230 Ariz. at 357–58 ¶¶ 18–19, 361 ¶ 36
n.5; see also Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir.
2010). Pure speech includes written and spoken words, as well as other
media such as paintings, music, and film “that predominantly serve to
express thoughts, emotions, or ideas.” Coleman, 230 Ariz. at 358 ¶ 18; see
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Opinion of the Court
also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (stating that
books, plays, films, and video games are protected pure speech); Hurley,
515 U.S. at 569 (stating that music, painting, and poetry are examples of
speech that are “unquestionably shielded” under the First Amendment);
Kaplan v. California, 413 U.S. 115, 119–20 (1973) (stating that “pictures, films,
paintings, drawings, and engravings” enjoy First Amendment protection).
Additionally, this Court has concluded that tattoos are pure speech.
Coleman, 230 Ariz. at 358–59 ¶ 23 (citing Anderson, 621 F.3d at 1059–60
(holding that tattoos are pure speech and thus “entitled to full First
Amendment protection”)).
¶59 Pure speech also includes original artwork. See Cressman v.
Thompson, 798 F.3d 938, 952 (10th Cir. 2015) (holding that paintings,
drawings, and original artwork are protected pure speech); White v. City of
Sparks, 500 F.3d 953, 955–56 (9th Cir. 2007) (stating that original artwork is
protected speech); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.
2003) (same); Bery v. City of New York, 97 F.3d 689, 694–96 (2d Cir. 1996)
(same). As one court has stated, the First Amendment protects “art for art’s
sake.” Piarowski v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625, 628 (7th Cir. 1985);
see also Jucha v. City of North Chicago, 63 F. Supp. 3d 820, 825 (N.D. Ill. 2014)
(“There is no doubt that the First Amendment protects artistic
expression.”).
¶60 Protection for pure speech is not solely based on the medium
itself. See Coleman, 230 Ariz. at 359 ¶ 24 (stating that “whether or not
something is ‘speech’ protected by the First Amendment cannot focus upon
the medium chosen for its expression” (citation and internal quotation
marks omitted)). Rather, words, pictures, paintings, and films qualify as
pure speech when they are used by a person as a means of self-expression.
See Hurley, 515 U.S. at 576 (stating that self-expression exists where the
speaker is “intimately connected with the communication advanced”);
Cressman, 798 F.3d at 954 (“Pure-speech treatment is only warranted for
those images whose creation is itself an act of self-expression.”); Jucha, 63 F.
Supp. 3d at 827 (stating that pure speech involves self-expression through
art and other forms of “expressive media”). Thus, for example, a painting
is pure speech when an artist paints it to express his personal “vision of
movement and color.” White, 500 F.3d at 956.
¶61 In addition to pure speech, the First Amendment also protects
conduct that is “sufficiently imbued with elements of communication.”
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418
U.S. 405, 409 (1974)); see Coleman, 230 Ariz. at 358 ¶ 19. However, because
“an apparently limitless variety of conduct can be labeled ‘speech,’” United
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Opinion of the Court
States v. O’Brien, 391 U.S. 367, 376 (1968), an “interpretive step” is necessary
to determine whether conduct contains an expressive element. Anderson,
621 F.3d at 1061. To make this determination, the Supreme Court has
formulated a two-part test (referred to as the “Spence-Johnson test”): (1)
whether the speaker intends for the conduct to convey a “particularized
message,” and (2) the “likelihood [is] great” that a reasonable third-party
observer would understand the message. Spence, 418 U.S. at 410–11; see
Johnson, 491 U.S. at 404; Coleman, 230 Ariz. at 358 ¶ 19 (discussing the Spence-
Johnson test).
¶62 Courts do not apply the Spence-Johnson test to pure speech.
For example, in Hurley, the Court stated that “a narrow, succinctly
articulable message is not a condition of constitutional protection” for
expression such as the “painting of Jackson Pollock, music of Arnold
Schöenberg, or Jabberwocky verse of Lewis Carroll.” 515 U.S. at 569; see
also Anderson, 621 F.3d at 1060 (citing Hurley for the proposition that the
Spence-Johnson test does not apply to pure speech); Coleman, 230 Ariz. at 359
¶ 27 (citing Hurley for the proposition that the Spence-Johnson test “does not
apply to paintings and music”); Klein v. Or. Bureau of Labor & Indus., 410
P.3d 1051, 1069–70 (Or. Ct. App. 2017) (citing Hurley for the proposition that
“a particularized, discernible message is not a prerequisite for First
Amendment protection” for various forms of pure speech, such as art,
music, and video games), vacated and remanded for further consideration, 139
S. Ct. 2713 (2019) (mem.).
¶63 Likewise, in Coleman, we stated that “purely expressive
activity,” or pure speech, “is entitled to full First Amendment protection,”
but “conduct with an expressive component” is only protected if it satisfies
the Spence-Johnson test. 230 Ariz. at 358 ¶ 19 (quoting Anderson, 621 F.3d
at 1059); see also Anderson, 621 F.3d at 1060 (holding that pure speech is
protected “without relying on the Spence[-Johnson] test”); Jucha, 63 F. Supp.
3d at 827 (holding that “where the case involves purely expressive works
of art or other expressive media, it is not appropriate to apply Spence”); cf.
Klein, 410 P.3d at 1070 n.8 (stating that “as we understand the Supreme
Court to have held[], because the creation of artwork and other inherently
expressive acts are unquestionably undertaken for an expressive purpose,
they need not express an articulable message to enjoy First Amendment
protection”).
2. Business Activity
¶64 Generally, there is no free speech protection for non-
expressive business activities. See Coleman, 230 Ariz. at 360 ¶ 31 (stating
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Opinion of the Court
that “generally applicable laws, such as taxes, health regulations, or
nuisance ordinances, may apply to” expressive businesses); see also Citizen
Publ’g Co. v. United States, 394 U.S. 131, 139–40 (1969) (holding that there is
no First Amendment protection for newspaper publishing companies that
engage in specific monopolistic commercial practices that violate antitrust
laws); Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 192–93 (1946) (holding
that the Fair Labor Standards Act applies to all business and that there is no
First Amendment exemption from the Act for newspaper publishing and
distribution companies).
¶65 However, some businesses, like tattoo studios and video
game companies, do create and sell products that are protected free speech.
Brown, 564 U.S. at 790 (video games); Coleman, 230 Ariz. at 355 ¶ 2 (tattoos).
For such products, both the finished product and the process of creating
that product are protected speech. Coleman, 230 Ariz. at 360 ¶ 26 (holding
that “the process of tattooing is expressive activity”).
¶66 A business does not forfeit the protections of the First
Amendment because it sells its speech for profit. As we stated in Coleman,
the “degree of First Amendment protection is not diminished merely
because the [protected expression] is sold rather than given away.” 230
Ariz. at 360 ¶ 31 (alteration in original) (quoting City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988)). Likewise, the Supreme Court
stressed in Riley that “a speaker’s rights are not lost merely because
compensation is received; a speaker is no less a speaker because he or she
is paid to speak.” 487 U.S. at 801; see also Hurley, 515 U.S. at 573–74 (stating
the right to autonomy of speech and freedom from compelled speech is
“enjoyed by business corporations generally,” including “professional
publishers”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (holding
that motion picture companies that operate for profit are “a form of
expression whose liberty is safeguarded by the First Amendment”).
¶67 However, simply because a business creates or sells speech
does not mean that it is entitled to a blanket exemption for all its business
activities. Like other organizations and associations, no business “is likely
ever to be exclusively engaged in expressive activities,” and even the most
expressive business will be engaged in non-expressive business activities.
Roberts v. U.S. Jaycees, 468 U.S. 609, 635 (1984) (O’Connor, J., concurring in
part and in the judgment). Thus, for example, in Pittsburgh Press Co. v.
Pittsburgh Commission on Human Relations, 413 U.S. 376, 385–88, 390–91
(1973), the Supreme Court held that while the First Amendment protected
the content of articles published by a newspaper, it did not protect the
newspaper’s facilitation of illegal hiring practices by publishing gender-
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Opinion of the Court
specific employment advertisements. See also Arcara v. Cloud Books, Inc., 478
U.S. 697, 698–99, 705–06 & n.3 (1986) (holding that adult bookstore owner,
who allowed prostitution to be solicited on his business premises, was
engaged in “‘nonspeech’ conduct” that “manifest[ed] absolutely no element
of protected expression,” and stating that “First Amendment values may
not be invoked by merely linking the words ’sex’ and ‘books’”); Hishon v.
King & Spalding, 467 U.S. 69, 78 (1984) (stating that while law firms may
engage in free speech and freedom of association, there is no free speech
protection to engage in discriminatory employment practices).
3. Plaintiffs’ Custom Wedding Invitations
¶68 Here, the First Amendment does not protect all of Plaintiffs’
business activities or products simply because they operate Brush & Nib as
an “art studio.” However, Plaintiffs’ custom wedding invitations, and the
process of creating them, are protected by the First Amendment because
they are pure speech. Each custom invitation created by Duka and Koski
contains their hand-drawn words, images, and calligraphy, as well as their
hand-painted images and original artwork. Additionally, Duka and Koski
are intimately connected with the words and artwork contained in their
invitations. See Hurley, 515 U.S. at 576 (stating that protected speech
involves communications that are “intimately connected” with the
speaker). For each invitation, Duka and Koski spend many hours designing
and painting custom paintings, writing words and phrases, and drawing
images and calligraphy. Moreover, they insist on retaining artistic control
over the ideas and messages contained in the invitations to ensure they are
consistent with their religious beliefs.
¶69 In short, here, like tattoos and the process of tattooing in
Coleman, Plaintiffs’ custom wedding invitations, and the creation of those
invitations, constitute pure speech entitled to full First Amendment
protection. 230 Ariz. at 359 ¶¶ 23, 26.
¶70 The City argues, however, that Plaintiffs’ custom invitations
do not implicate pure speech protection because they often only convey
“logistical” information (such as date, time, and location) about a wedding.
Thus, like the scheduling emails in FAIR, the City contends that Plaintiffs’
custom invitations do not implicate speech in a constitutionally relevant
way.
¶71 We disagree. The City concedes that every custom invitation
contains “language that is celebratory of the wedding.” Moreover, viewing
the invitations as a whole, it is clear that Plaintiffs’ artwork, calligraphy,
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Opinion of the Court
and hand-lettering is designed to express a celebratory message about each
wedding. See Riley, 487 U.S. at 795–96 (stating that courts view the
expressive content of speech as a whole, and do not separately analyze each
word and phrase); cf. Hurley, 515 U.S. at 568 (stating that a parade, as a form
of expression, must be viewed as a whole, and cannot be reduced to “just
motion” or simply the observable fact that it involves a group of people
marching from one destination to another). Moreover, Plaintiffs’ inclusion
of original artwork and celebratory words and phrases has an emotive
impact on the overall message of the invitations. See Cohen v. California, 403
U.S. 15, 26 (1971) (stating that in analyzing speech, words “are often chosen
as much for their emotive as their cognitive force,” and the emotional force
“may often be the more important element of the overall message sought to
be communicated”).
¶72 The City’s comparison of this case to FAIR is inapt. In FAIR,
an association of law schools and law faculties challenged the
constitutionality of the Solomon Amendment. 547 U.S. at 52–53. That law
required the Department of Defense to deny federal funding to any
institution of higher education, including law schools, that prohibited
military recruiters from gaining access to campuses. Id. at 51–53. Because
Congress had adopted a “Don’t Ask, Don’t Tell” policy excluding gays and
lesbians from serving in the military, FAIR objected, on free speech
grounds, to providing the military access to their campuses for recruiting
purposes. See id. at 52–53 & n.1.
¶73 The Court rejected FAIR’s free speech claim. Specifically, it
concluded that FAIR’s actions in denying or granting access to their
campuses involved conduct, not speech. Id. at 62. Additionally, the Court
stated that the emails and notices FAIR sent to students advising them
about the dates, times, and locations the military was on campus were
“plainly incidental to the Solomon Amendment’s regulation of conduct.”
Id. Simply because FAIR used words “either spoken, written, or printed”
as a means to grant access to their campuses did not transform FAIR’s
conduct into personal expression. See id. (citation omitted).
¶74 At bottom, the Court recognized that FAIR could not identify
any personal expression or speech intimately connected with permitting
access to a room on a law school campus. See id. at 63–65; see also Hurley,
515 U.S. at 576 (holding that protected speech exists when the speaker is
“intimately connected with the communication advanced”). The Court
concluded that “the schools are not speaking when they host interviews
and recruiting receptions” and that “a law school’s decision to allow
recruiters on campus is not inherently expressive.” FAIR, 547 U.S. at 64; see
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Telescope Media Group v. Lucero, 2019 WL 3979621 at *9 (8th Cir. Aug. 23,
2019) (stating that FAIR “was [ ] about the availability of a forum,” and that
the “Supreme Court upheld the law because it did not interfere with the
law schools’ expression or coopt their speech” because “[s]imply hosting
recruiters was not speech”); see also PruneYard Shopping Ctr. v. Robins, 447
U.S. 74, 76–78, 87–88 (1980) (rejecting compelled speech claim where the
owner of a shopping center failed to identify any personal expression
intimately connected with the shopping center and the challenged law
merely required him to open his property to speakers without forcing him
to speak).
¶75 This case bears no resemblance to FAIR. Here, Plaintiffs’
custom wedding invitations, and the creation of those invitations,
constitute pure speech; Plaintiffs use their original artwork, paintings,
hand-drawn images, words, and calligraphy as a means of personal
expression. In contrast, FAIR was not “intimately connected” with the
empty interview rooms on their campuses, nor was it compelled to create
emails containing words, phrases, and artwork celebrating the military’s
presence on campus.
¶76 The City claims, however, that Plaintiffs’ refusal is not really
based on speech, but rather discriminatory conduct directed at a customer’s
sexual orientation. The dissent similarly, but incorrectly, asserts that
Plaintiffs seek to decline products or services based merely on Plaintiffs
disfavoring or disapproving of certain customers. But these arguments
misstate Plaintiffs’ position and are not supported by the record. Duka and
Koski neither testified nor argue that their faith prohibits them from serving
a customer based on their sexual orientation. Rather, Duka and Koski have
testified that they are willing to serve any customer, regardless of status,
and no contrary evidence has been presented. Additionally, the record
contains no complaints against Plaintiffs for discriminating against
customers based on their sexual orientation.
¶77 Nonetheless, the City argues that Plaintiffs’ discriminatory
intent is shown by the fact that, apart from one name, a custom invitation
for a same-sex couple is identical to one for a heterosexual couple. We reject
this rather myopic view of the invitations, which defies the very nature of
speech and art. Speech must be viewed as a whole, and even one word or
brush stroke can change its entire meaning. See Cohen, 403 U.S. at 26; see
also Telescope Media Group, 2019 WL 3979621 at *4 (stating that owners of
wedding videography business did not create “simple recordings, the
product of planting a video camera at the end of the aisle and pressing
record. Rather, they intend to shoot, assemble, and edit the videos with the
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goal of expressing their own views about the sanctity of marriage”). For
example, in Hurley, the Supreme Court determined that one banner in a
parade of 20,000 participants changed the expressive content of the entire
parade. 515 U.S. at 560–61, 572–75. Thus, for Duka and Koski, writing the
names of two men or two women (even when the names could refer to
either a male or female) clearly does alter the overall expressive content of
their wedding invitations. Cf. Kaahumanu v. Hawaii, 682 F.3d 789, 799 (9th
Cir. 2012) (stating that, in the context of expressive conduct, “[w]edding
ceremonies convey important messages about the couple, their beliefs, and
their relationship to each other and to their community”).
¶78 Ultimately, the City’s analysis is based on the flawed
assumption that Plaintiffs’ custom wedding invitations are fungible
products, like a hamburger or a pair of shoes. They are not. Plaintiffs do
not sell “identical” invitations to anyone; every custom invitation is
different and unique. For each invitation, Duka and Koski create different
celebratory messages, paintings and drawings; they also personally write,
in calligraphy or custom hand-lettering, the names of the specific bride and
groom who are getting married. In short, Plaintiffs do not create the same
wedding invitation for any couple, regardless of whether the wedding
involves a man and a woman or a same-sex couple.
¶79 Next, both the City and the dissent contend that while the
custom invitations themselves may contain protected speech, Plaintiffs’
refusal to create them for, and sell them to, a customer for a same-sex
wedding does not implicate speech. We disagree. The process of creating
and selling pure speech, which undeniably involves decisions about what
to create and what not to create, is protected by the First Amendment.
Coleman, 230 Ariz. at 359 ¶ 26, 360 ¶ 31 (holding that “the process of
tattooing is expressive activity” and expressly rejecting a distinction
between a business and the speech it creates); see Brown, 564 U.S. at 792 n.1
(stating that with respect to protection of free speech, “[w]hether
government regulation applies to creating, distributing, or consuming
speech makes no difference.”); Telescope Media, 2019 WL 3979621 at *5, 8
(rejecting the state’s argument that a public accommodation law only
regulated wedding videography owners’ conduct, not their speech, and
concluding that although “producing a video requires several actions, that,
individually, might be mere conduct,” what was relevant for its free speech
analysis “is that these activities come together to produce finished videos
that are medi[a] for the communication of ideas.”) (internal quotations
omitted); Anderson, 621 F.3d at 1060, 1062–63 (holding that like the tattoo
itself, both the process and business of tattooing are protected under the
First Amendment); White, 500 F.3d at 954 (holding that “an artist’s sale of
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Opinion of the Court
his original artwork constitutes speech protected under the First
Amendment” (emphasis added)); see also Riley, 487 U.S. at 795–96 (holding
that both the contributions subsidizing free speech and the professional
fundraiser’s solicitation efforts in raising those contributions must be
examined “as a whole,” and, as a result, the test for “fully protected
expression” must be applied to both); cf. Simon & Schuster, Inc. v. Members
of the N.Y. State Crime Victims Bd., 502 U.S. 105, 108, 123 (1991) (holding that
a statute regulating the income generated from books and other media by
those accused or convicted of a crime constituted an impermissible
regulation of speech).
¶80 The City also argues that because Plaintiffs’ refusal affects
only same-sex couples, their refusal is essentially a proxy for discrimination
based on sexual orientation. We disagree. The fact that Plaintiffs’ message-
based refusal primarily impacts customers with certain sexual orientations
does not deprive Plaintiffs of First Amendment protection. For example, in
Hurley, the Council’s decision to exclude GLIB’s banner effectively
excluded any other parade participants who may have wanted to express
their pride in their sexual orientation by marching behind similar banners.
But because the impact was based on message, not status, it was protected.
See Hurley, 515 U.S. at 572–76, 580–81; see also Boy Scouts of Am. v. Dale, 530
U.S. 640, 653–54 (2000) (discussing Hurley and stating “that the parade
organizers did not wish to exclude the GLIB members because of their
sexual orientations, but because they wanted to march behind a GLIB
banner”); cf. Masterpiece Cakeshop, 138 S. Ct. at 1723 (stating that if a wedding
cake baker “refused to design a special cake with words or images
celebrating the marriage . . . that might be different from a refusal to sell
any cake at all” and that “these details might make a difference”).
¶81 The City’s reliance on Christian Legal Society v. Martinez, 561
U.S. 661 (2010), and Lawrence v. Texas, 539 U.S. 558 (2003), is misplaced.
Those cases stand for the proposition that a governmental regulation
targeting a person’s sexual conduct is, in effect, a law that discriminates
based on a person’s sexual orientation. See Christian Legal Soc’y, 561 U.S. at
672, 675, 689 (relying on Lawrence and concluding that there was no
difference between an organization’s exclusion of individuals who engage
in “unrepentant homosexual conduct” and exclusion of persons based on
their sexual orientation); Lawrence, 539 U.S. at 583 (O’Connor, J., concurring
in the judgment) (reasoning that “there can hardly be more palpable
discrimination against a class than making the conduct that defines the class
criminal” (citation omitted)).
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¶82 Here, Plaintiffs’ objection is based on neither a customer’s
sexual orientation nor the sexual conduct that defines certain customers as
a class. Plaintiffs will make custom artwork for any customers, regardless
of their sexual orientation, but will not, regardless of the customer, make
custom wedding invitations celebrating a same-sex marriage ceremony.
Thus, although Plaintiffs’ refusal may, like Hurley, primarily impact same-
sex couples, their decision is protected because it is not based on a
customer’s sexual orientation.
¶83 The City also claims that the invitations are the customer’s
speech, not Plaintiffs’ speech. According to the City, because Plaintiffs
include the information requested by the customer, they merely serve as a
scribe, or conduit, for the customer’s speech.
¶84 This argument is not supported by the record. Duka and
Koski are involved in every aspect of designing and creating the invitations,
and they retain substantial (if not complete) artistic control over the
messages that are expressed in the invitations. See supra ¶¶ 9–14. Clearly,
Duka and Koski are more than a “scribe” for the customer.
¶85 But more importantly, the fact that the invitations may
contain the speech of both Plaintiffs and their customers does not mean that
Plaintiffs’ speech is unprotected. In Hurley, the Court rejected the
government’s argument that the parade did not include the personal
expression of the Council because it incorporated speech originally created
by others. See 515 U.S. at 569–70. The Court stated that “First Amendment
protection [does not] require a speaker to generate, as an original matter,
each item featured in the communication.” Id. at 570; see also Riley, 487 U.S.
at 794 n.8 (stating that even though “the fund-raiser, not the charity, [was]
the object of the regulation[, f]ining the fund-raiser” for its solicitation
efforts to subsidize “speech for the charity has an obvious and direct
relation to [not only] the charity’s speech,” but also the fundraiser, who
“has an independent First Amendment interest in the speech”).
¶86 Likewise, in Coleman, we recognized that “a tattoo reflects not
only the work of the tattoo artist but also the self-expression of the person
displaying the tattoo’s relatively permanent image.” 230 Ariz. at 359 ¶ 25.
Thus, we concluded that a tattoo is the protected speech of both the
customer and the artist, even when the artist uses a standard message or
design to create the tattoo. Id. at 358 ¶ 23, 360 ¶ 30; see also Buehrle v. City of
Key West, 813 F.3d 973, 977 (11th Cir. 2015) (holding that tattoos display the
message of both the artists and the customer); Anderson, 621 F.3d at 1062
(holding that “[a]s with all collaborative creative processes, both the
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tattooist and the person receiving the tattoo are engaged in expressive
activity”).
¶87 The City and the dissent make several other arguments, none
of which is persuasive. For example, both the City and the dissent claim
that, to an objective observer, the custom invitations do not necessarily
convey a message which they describe as “endorsing” same-sex marriage.
This argument, however, erroneously applies the Spence-Johnson test for
expressive conduct to pure speech. See supra ¶¶ 61–63. Whether a third
party is able to discern any articulable “message” in pure speech, especially
artwork, is simply irrelevant in terms of whether it is protected under the
First Amendment. Nothing illustrates this principle more clearly than
Coleman. There, we held that tattoos are protected pure speech, even
though, as a practical matter, the message or meaning of many tattoos may
well be indecipherable to an objective observer. But, because the tattoos
contained the personal expression of the artist, we held the tattoos were
protected pure speech. 230 Ariz. at 358–59, 360 ¶¶18, 23–26, 30; see supra
¶¶ 63, 85–86.
¶88 In a related argument, the City and the dissent claim that if
Plaintiffs have any protected speech rights in their invitations, it is limited
to statements expressly “endorsing” or “supporting” same-sex marriage.
This argument simply ignores Plaintiffs’ right to refuse to create messages
that “celebrate” a same-sex wedding. Possibly the dissent ignores this right
because, as the City concedes, every custom invitation Plaintiffs create
contains “language that is celebratory of the wedding.” Supra ¶ 11. And,
of course, there is no legal justification for holding that free speech only
protects messages that “endorse” or “support” same-sex weddings but not
messages celebrating such weddings. Indeed, as the Supreme Court has
stated, the right to free speech includes any “medium for the
communication of ideas” that “may affect public attitudes and behavior in
a variety of ways, ranging from direct espousal of a political or social
doctrine to the subtle shaping of thought which characterizes all artistic
expression.” Burstyn, 343 U.S. at 501.
¶89 The City also argues that because the invitations are sold for
profit, they are a form of commercial activity, not speech. But the fact that
Plaintiffs sell the custom invitations for profit has no bearing on their First
Amendment protection.
¶90 In a similar vein, the dissent claims that because Plaintiffs
operate Brush & Nib as a public accommodation, their free speech rights
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must give way to the Ordinance. However, as we explain, infra ¶¶ 107, 153–
54, public accommodation laws are not immune to the First Amendment.
¶91 The remaining arguments raised by the dissent are equally
unavailing. For example, the dissent claims that there is no compelled
speech because “nothing requires Brush & Nib to identify itself as the
supplier of an invitation or precludes it from disclaiming that its sales
constitute an endorsement of the beliefs of its customers.” Infra ¶ 201.
However, the essence of free speech protection is a person’s autonomy over
what to say and when to say it. See Hurley, 515 U.S. at 576 (stating that
“protection of a speaker’s freedom would be empty” if “the government
could require speakers to affirm in one breath that which they deny in the
next.”) (brackets and citation omitted); Telescope Media, 2019 WL 3979621 at
*9 (same). We fail to see how Plaintiffs’ autonomy over their speech is
protected by requiring them to conceal their identity as artists and to
disclaim any responsibility for creating artwork that contradicts their
religious beliefs.
¶92 Additionally, by claiming that we “implausibly characterize[]
[Plaintiffs’] commercially prepared wedding invitation as ‘pure speech,’”
infra ¶ 183, the dissent creates a confusing and arbitrary line. For example,
if, as we concluded in Coleman, a business tattooing images such as skulls,
snakes, and barbed wire fences on a person’s skin is creating pure speech
(even if these images are based on standard designs and patterns), how is
Plaintiffs’ creation of original paintings, artwork, and celebratory messages
for their custom invitations not pure speech? See 230 Ariz. at 360 ¶ 30.
¶93 Accordingly, we conclude that Plaintiffs’ custom wedding
invitations, and the creation of those invitations, constitute protected pure
speech.
C. Level of Scrutiny
¶94 Because the custom invitations are protected pure speech, we
must determine whether the Ordinance violates Plaintiffs’ free speech
rights. To make this determination, we must first decide what level of
scrutiny applies to the Ordinance. This requires us to examine whether the
Ordinance is a content-neutral or content-based regulation of speech, or
merely a regulation of conduct. Turner Broad., 512 U.S. at 637, 642 (stating
that, after concluding cable programmers and operators were engaged in
protected speech activities, a court must then decide whether the law
regulates speech in a content-neutral or content-based way, which
determines the appropriate level of scrutiny).
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¶95 Plaintiffs assert that the Ordinance, as applied by the City, is
content-based because it compels them to create custom invitations
expressing messages that celebrate same-sex marriage. As a result,
Plaintiffs contend the Ordinance is subject to strict scrutiny. In contrast, the
City argues the Ordinance purely regulates discriminatory conduct, not
speech, and therefore is subject to the rational basis test.
¶96 First, “laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed are
content based.” Turner Broad., 512 U.S. at 643; see also Reed v. Town of Gilbert,
135 S. Ct. 2218, 2227 (2015). A law may also be content-based “if its manifest
purpose is to regulate speech because of the message it conveys.” Turner
Broad., 512 U.S. at 645. Content-based laws must satisfy strict scrutiny.
Reed, 135 S. Ct. at 2227. Thus, such laws “are presumptively
unconstitutional and may be justified only if the government proves that
they are narrowly tailored to serve compelling state interests.” Id. at 2226.
¶97 Second, content-neutral laws that regulate non-expressive
conduct, and not speech, are subject to the rational basis test. See Coleman,
230 Ariz. at 358 ¶ 19 (stating that “if the conduct is not ‘sufficiently imbued
with elements of communication,’ then the regulation need only be
rationally related to a legitimate governmental interest” (quoting Anderson,
621 F. 3d at 1059)).
¶98 Third, content-neutral regulations “that impose an incidental
burden on speech” are subject to intermediate scrutiny. Turner Broad., 512
U.S. at 662. Under intermediate scrutiny, a law is justified if: (1) “it furthers
an important or substantial governmental interest,” (2) “the governmental
interest is unrelated to the suppression of free expression,” and (3) any
restriction on speech is incidental and “no greater than is essential” to
further the government interest. Id. (quoting O’Brien, 391 U.S. at 377).
¶99 Finally, a facially content-neutral law may, as applied to a
particular plaintiff, operate as a content-based law. For example, in Holder
v. Humanitarian Law Project, 561 U.S. 1, 26–28 (2010), a facially content-
neutral statute that “generally function[ed] as a regulation of conduct” was,
as applied to plaintiffs, a content-based statute because “the conduct
triggering coverage under the statute consist[ed] of communicating a
message.” See also Masterpiece Cakeshop, 138 S. Ct. at 1741 (Thomas, J.,
concurring) (stating that “[a]lthough public-accommodations laws
generally regulate conduct, particular applications of them can burden
protected speech”); cf. Dale, 530 U.S. at 644 (holding that a public
accommodations law that was applied to force the Boy Scouts, in violation
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Opinion of the Court
of their organizational values, to admit a gay man, who was a gay and
lesbian rights advocate, violated their freedom of association under the First
Amendment).
¶100 When a facially content-neutral law is applied by the
government to compel speech, it operates as a content-based law. Thus,
laws that “[m]andat[e] speech that a speaker would not otherwise make
necessarily alters the content of the speech” and are therefore considered
“content-based regulation[s] of speech.” Riley, 487 U.S. at 795; see Telescope
Media, 2019 WL 3979621 at *6 (stating that “[l]aws that compel speech or
regulate it based on its content are subject to strict scrutiny”).
¶101 Hurley is instructive on this issue. In Hurley, the Court
addressed a public accommodations law that did “not, on its face, target
speech or discriminate on the basis of its content,” but focused on
prohibiting “the act of discriminating against individuals in the provision
of publicly available goods, privileges, and services.” 515 U.S. at 572.
However, the Court observed that the public accommodations law had
been applied “in a peculiar way.” Id. Specifically, the law was not being
applied to “address any dispute about the participation of openly gay,
lesbian, or bisexual individuals” in the parade. Id. Indeed, like Plaintiffs
here, the Council “disclaim[ed] any intent to exclude homosexuals as such,
and no individual member of GLIB claim[ed] to have been excluded from
parading as a member of any group that the Council ha[d] approved to
march.” Id. Rather, because GLIB’s banner affected the expressive content
of their parade, Hurley concluded that the “application of the statute
produced an order essentially requiring [the Council] to alter the expressive
content of their parade,” and therefore “had the effect of declaring the
sponsors’ speech itself to be the public accommodation.” Id. at 572–73. As
a result, the Court held that the public accommodations law, as applied to
the Council’s parade, was unconstitutional because it compelled the
Council “to modify the content of their expression.” Id. at 578; see also Riley,
487 U.S. at 795 (holding that law was content-based because it
“[m]andat[ed] speech that a speaker would not otherwise make”); City of
Cleveland v. Nation of Islam, 922 F. Supp. 56, 59 (N.D. Ohio 1995) (holding
that city’s public accommodations law as applied to plaintiffs compelled
speech in violation of the First Amendment); cf. Klein, 410 P.3d at 1069
(recognizing public accommodation law may be “subject to strict scrutiny”
if it was applied “to require the creation of pure speech or art”).
¶102 Here, the Ordinance, like other public accommodations laws,
prohibits businesses from denying access to equal goods and services to
certain protected groups. Thus, by its terms, the Ordinance is a facially
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content-neutral law that generally targets discriminatory conduct, not
speech. See Hurley, 515 U.S. at 572; see also Masterpiece Cakeshop, 138 S. Ct. at
1741 (Thomas, J., concurring) (stating that “public-accommodations laws
generally regulate conduct”). Additionally, there is no evidence that the
purpose of the Ordinance is to regulate speech.
¶103 However, the Ordinance, as applied to Plaintiffs’ custom
wedding invitations, operates as a content-based law. Under the City’s
application of the Ordinance, Duka and Koski face the threat of criminal
prosecution, jail, fines, or closure of their business if they refuse to create
custom invitations celebrating same-sex weddings. Thus, based on its
onerous penalties, the Ordinance coerces Plaintiffs into abandoning their
convictions, and compels them to write celebratory messages with which
they disagree, such as “come celebrate the wedding of Jim and Jim,” or
“share in the joy of the wedding of Sarah and Jane.” See Telescope Media,
2019 WL 3979621 at *6 (holding that state public accommodations law
operated as a content-based regulation of owners’ wedding video business
“[b]y treating the [owners’] choice to talk about one topic—opposite-sex
marriages—as a trigger for compelling them to talk about a topic they
would rather avoid—same-sex marriages”). In short, like Hurley, the City’s
application of the Ordinance in this case essentially declares Plaintiffs’
“speech itself to be the public accommodation.” Hurley, 515 U.S. at 572–73.
¶104 Accordingly, because the Ordinance “necessarily alters the
content” of Plaintiffs’ speech by forcing them to engage in speech they
“would not otherwise make,” it must survive strict scrutiny. Riley, 487 U.S.
at 795.
D. Applying Strict Scrutiny
¶105 Under the strict scrutiny test, the City has the burden of
showing that the Ordinance (1) furthers a compelling government interest
and (2) is narrowly tailored to achieve that interest. NIFLA, 138 S. Ct. at
2371.
¶106 The Ordinance generally serves the compelling interest of
ensuring equal access to publicly available goods and services for all
citizens, regardless of their status. See Jaycees, 468 U.S. at 624 (holding that
the state’s “strong historical commitment to eliminating discrimination and
assuring its citizens equal access to publicly available goods and
services . . . plainly serves compelling state interests of the highest order”).
However, that interest is not sufficiently overriding as to justify compelling
Plaintiffs’ speech by commandeering their creation of custom wedding
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invitations, each of which expresses a celebratory message, as the means of
eradicating society of biases.
¶107 In Hurley, the Supreme Court rejected any suggestion that a
public accommodations law could justify compelling speech. The Court
explained that although the government may prohibit “the act of
discriminating against individuals in the provision of publicly available
goods, privileges, and services,” it may not “declar[e] [another’s] speech
itself to be [a] public accommodation” or grant “protected
individuals . . . the right to participate in [another’s] speech.” 515 U.S. at
572–73. The Court observed that it may be argued “that the ultimate point
of forbidding acts of discrimination toward certain classes is to produce a
society free of the corresponding biases,” and therefore “[r]equiring access
to a speaker’s message would thus be not an end in itself, but a means to
produce speakers free of the biases.” Id. at 578–79. The Court concluded,
however, that “if this indeed is the point of applying the [public
accommodations] law to expressive conduct, it is a decidedly fatal
objective, ” because “[w]hile the law is free to promote all sorts of conduct
in place of harmful behavior, it is not free to interfere with speech for no
better reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may strike the
government.” Id. at 579; see Telescope Media, 2019 WL 3979621 at *7 (stating
that “[e]ven antidiscrimination laws, as critically important as they are,
must yield to the Constitution. And as compelling as the interest in
preventing discriminatory conduct may be, speech is treated differently
under the First Amendment”).
¶108 Accordingly, like Hurley, the City has failed to demonstrate
that the Ordinance, as applied to Plaintiffs’ creation of custom wedding
invitations, furthers a compelling governmental interest.
¶109 The dissent claims, however, that Hurley is “inapposite”
because the compelled speech violation there involved the application of a
public accommodations law to a privately organized parade, not a for-
profit public accommodation like Brush & Nib. But Hurley made no such
distinction. To the contrary, the Court stated that the right to autonomy of
speech and freedom from compelled speech is “enjoyed by business
corporations generally,” including “professional publishers.” Hurley, 515
U.S. at 573–74. Indeed, as noted above, supra ¶ 101, what the Court
considered “peculiar” was not the application of the public
accommodations law to a privately organized parade, but application of the
law to compel speech. 515 U.S. at 572–73. Consistent with Hurley, the
Supreme Court has never limited the compelled speech doctrine to non-
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profit organizations and has, on many occasions, applied that doctrine to
for-profit businesses. See Pac. Gas & Elec. Co., 475 U.S. at 6–7, 16–17
(applying the compelled speech doctrine to a for-profit, privately-owned
utility); Miami Herald Publ’g Co., 418 U.S. at 244, 256–58 (applying the
compelled speech doctrine to a newspaper company); see also Coleman, 230
Ariz. at 360 ¶ 31 (“[T]he degree of First Amendment protection is not
diminished merely because the [protected expression] is sold rather than
given away.” (alterations in original) (quoting Plain Dealer Publ’g, 486 U.S.
at 756 n.5)); Telescope Media, 2019 WL 3979621 at *5–9 (applying the
compelled speech doctrine to a for-profit, privately owned wedding video
business operating as a public accommodation).
¶110 Additionally, because the purpose of the Ordinance is to
regulate conduct, not speech, regulating Plaintiffs’ speech is not narrowly
tailored to accomplish this goal. As the Court stated in Riley, “government
regulation of speech must be measured in minimums, not maximums,” and
that in seeking to promote a valid government interest, it should avoid
adopting “a prophylactic rule of compelled speech” that is “unduly
burdensome and not narrowly tailored.” 487 U.S. at 790, 798; see also Pac.
Gas & Elec. Co., 475 U.S. at 19 (holding that a regulation was not “a narrowly
tailored means of serving a compelling state interest” because, although
“[t]he State’s interest in fair and effective utility regulation may be
compelling[,] . . . the State can serve that interest through means that would
not violate appellant’s First Amendment rights”); NAACP v. Button, 371
U.S. 415, 433, 438 (1963) (“Because First Amendment freedoms need
breathing space to survive, . . . [b]road prophylactic rules in the area of free
expression are suspect. Precision of regulation must be the touchstone in
an area so closely touching our most precious freedoms.” (citations
omitted)).
¶111 We therefore conclude that because the Ordinance as applied
to Plaintiffs’ creation of custom wedding invitations cannot survive strict
scrutiny, the Ordinance runs afoul of the First Amendment, which
“necessarily implies” a violation of Plaintiffs’ broader free speech right
under article 2, section 6 of the Arizona Constitution. Coleman, 230 Ariz. at
361 ¶ 36 n.5; see also Mountain States, 160 Ariz. at 358.
¶112 The City’s concern that our decision will undermine the anti-
discrimination purpose of the Ordinance, or that it will encourage other
businesses to use free speech as a pretext to discriminate against protected
groups, is unwarranted. Our holding today is limited to Plaintiffs’ creation
of one product: custom wedding invitations that are materially similar to
the invitations contained in the record. Supra ¶ 3. These invitations, unlike
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most commercial products and services sold by public accommodations,
are unique because they consist of protected pure speech.
¶113 Nothing in our holding today allows a business to deny access
to goods or services to customers based on their sexual orientation or other
protected status. See Telescope Media, 2019 WL 3979621 at *10 (holding that,
although the state public accommodations law must give way to the
owners’ free speech rights to refuse to create videos celebrating same-sex
marriage, this holding “leaves intact other applications of the [law] that do
not regulate speech based on its content or otherwise compel an individual
to speak.”). Additionally, the dissent’s claim that our holding conflicts with
cases such as Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964),
and Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941 (D. S.C. 1966),
aff’d in part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d
as modified on other grounds, 390 U.S. 400 (1968) (per curiam), is incorrect.
Those cases did not involve compelled speech, but rather business owners
who refused to serve African-Americans based solely on their race, a
practice Plaintiffs expressly condemn, and that our holding clearly neither
permits nor condones. See Heart of Atlanta, 379 U.S. at 244, 261–62
(upholding constitutionality of Title II of the Civil Rights Act as applied to
hotels and motels, against challenges under the commerce, due process,
and takings clauses and the Thirteenth Amendment); Newman, 256 F. Supp.
at 944 (holding that Title II of the Civil Rights Act prohibited an owner of a
restaurant from refusing to serve African-Americans).
E. Other Jurisdictions
¶114 Finally, the City claims that several decisions from other
jurisdictions support its application of the Ordinance. These decisions,
however, are either distinguishable or not persuasive.
¶115 For example, in Elane Photography, LLC v. Willock, 309 P.3d 53,
59–60 ¶ 7 (N.M. 2013), the owners of a commercial photography business
refused, on religious grounds, to provide photography services for a same-
sex wedding. But there, the court determined that the public
accommodations law was not being applied to speech, but solely to the
owners’ conduct in operating their photography business. Id. at 66 ¶¶ 34–
35, 68 ¶¶ 41–43. However, we have—as has the United States Supreme
Court—expressly rejected this distinction between a business and the
speech that it creates. Coleman, 230 Ariz. at 360 ¶ 31; supra ¶ 65.
¶116 Elane Photography also held that the compelled speech
doctrine did not apply to the owners because they operated their business
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as a public accommodation that sold their photographs for profit. 309 P.3d
at 65–66 ¶ 33. Specifically, the court stated that “[t]he United States
Supreme Court has never found a compelled-speech violation arising from
the application of antidiscrimination laws to a for-profit public
accommodation,” and that the Court has limited the doctrine cases where
the “states have applied their public accommodation laws to free-speech
events such as privately organized parades, and private membership
organizations.” Id. at 65–66. However, as noted above, the Supreme Court
has never limited the compelled speech doctrine to non-profit
organizations, nor has it held that public accommodation laws are immune
from the First Amendment. See supra ¶ 107.
¶117 The City’s reliance on Gifford v. McCarthy, 23 N.Y.S.3d 422
(App. Div. 2016), is also misplaced. There, the owners of a wedding venue
(a farm) refused to rent it to a same-sex couple for their wedding ceremony.
Id. at 426. Thus, unlike this case, Gifford did not address compelled pure
speech, but rather conduct in denying access to a location. And, like FAIR,
the owners could not identify any personal expression intimately connected
with permitting access to the buildings and open fields on their farm. Id. at
431–32.
¶118 State v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017), vacated
and remanded, Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018)
(mem.) 1, and Klein, 410 P.3d 1051, are distinguishable. In those cases, the
owners’ activities arguably implicated the expressive conduct doctrine, not
pure speech. Klein, 410 P.3d at 1065, 1074 (cakes); Arlene’s Flowers, 389 P.3d
at 557–59 ¶¶ 41–47 & n.13 (floral arrangements). And, consistent with our
conclusion, both cases acknowledged, at least impliedly, that words and
paintings are forms of pure speech that cannot be compelled. Klein, 410
P.3d at 1069–70 (stating that the public accommodations law may have been
1 We note that on June 6, 2019, the Washington Supreme Court issued
its opinion after the United States Supreme Court remanded in light of
Masterpiece Cakeshop, 138 S. Ct. 1719. State v. Arlene’s Flowers, Inc., 441 P.3d
1203 (Wash. 2019). The court once again affirmed, concluding that “the
courts resolved this dispute with tolerance” and thus did not run afoul of
the First Amendment’s requirement that courts must adjudicate such
claims with religious neutrality. Id. at 1237 ¶ 120; see Masterpiece Cakeshop,
138 S. Ct. at 1732. The court affirmed its previous holding that the state
public accommodations law as applied to the flower shop owner did not
violate the owner’s free speech rights, and its reasoning did not materially
differ. Arlene’s Flowers, 441 P.3d at 1237–38 ¶ 120. Thus, the 2019 decision
does not affect our analysis here.
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subject to strict scrutiny if the owners had been creating pure speech, such
as music, poetry, sculpture, and art); Arlene’s Flowers, 389 P.3d at 559 ¶ 47
n.13 (stating that plaintiff’s floral arrangements do not implicate free
expression rights associated with other “forms of pure expression” like
tattoos).
¶119 Finally, another case cited by the City, Telescope Media Group
v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017), was, with respect to the
issues relevant here, recently reversed in part by the Eighth Circuit Court
of Appeals. Telescope Media Group, 2019 WL 3979621.
¶120 In sum, these decisions from other jurisdictions regarding
wedding vendors are either distinguishable or unpersuasive. We therefore
hold that the Ordinance’s application to Plaintiffs’ custom wedding
invitations violates article 2, section 6 of the Arizona Constitution.
Accordingly, as to Plaintiffs’ creation of that particular product, the trial
court erred in granting summary judgment in favor of the City and denying
Plaintiffs’ motion for summary judgment on that claim.
IV.
¶121 In conjunction with their free speech claim, Plaintiffs also
allege a free exercise claim under FERA, A.R.S. § 41-1493.01. Like their free
speech claim, Plaintiffs’ FERA claim is based on compelling a message with
which they disagree. As Christians, Plaintiffs seek to freely exercise their
religion by expressing messages that are consistent with their faith, as well
as refusing to express messages that are inconsistent with their faith.
However, according to Plaintiffs, the Ordinance violates their free exercise
protection under FERA because it forces them to create custom wedding
invitations celebrating same-sex marriages, in contradiction of their
religious belief that marriage can only be between one man and one
woman.
¶122 In analyzing Plaintiffs’ free exercise claim, it is important to
understand the history of FERA. Prior to the United States Supreme Court’s
decision in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme
Court assessed, on a case-by-case basis, the burdens that generally
applicable laws placed on a person’s free exercise of religion in cases such
as Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398
(1963). See Smith, 494 U.S. at 881–82, 884–85; see also Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 693 (2014); Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 424 (2006). Smith, however, changed the
Court’s free exercise framework by holding that “the Free Exercise Clause
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of the First Amendment does not prohibit governments from burdening
religious practices through generally applicable laws.” O Centro, 546 U.S.
at 424.
¶123 In response to Smith, Congress enacted the Religious Freedom
Restoration Act of 1993 (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488
(codified as amended at 42 U.S.C. §§ 2000bb to 2000bb-4). See O Centro, 546
U.S. at 424. Congress found that “laws ‘neutral’ toward religion may
burden religious exercise as surely as laws intended to interfere with
religious exercise.” Id. at 439 (quoting § 2000bb(a)(2)). As a result, RFRA
provides that the government may not substantially burden a person’s
exercise of religion, “even if the burden results from a rule of general
applicability.” Id. at 424 (quoting § 2000bb-1(a)).
¶124 Although RFRA remains operative as to the federal
government, see Guam v. Guerrero, 290 F.3d 1210, 1220–22 (9th Cir. 2002), it
was declared unconstitutional as to state laws; as a result, no state law claim
is available under RFRA. See City of Boerne v. Flores, 521 U.S. 507, 534–36
(1997); see also State v. Hardesty, 222 Ariz. 363, 365 ¶ 7 n.6 (2009). Thus,
following the Supreme Court’s decision in Boerne, in 1999, the Arizona
Legislature passed FERA “to protect Arizona citizens’ right to exercise their
religious beliefs free from undue governmental interference.” Hardesty, 222
Ariz. at 365 ¶ 8; see 1999 Ariz. Sess. Laws, ch. 332, § 2 (1st Reg. Sess.)
[hereinafter FERA Sess. Law].
¶125 Like RFRA, FERA created a rule based on the Supreme
Court’s pre-Smith framework. See FERA Sess. Law § 2(A)(6) (stating the test
“as set forth in the federal cases of Wisconsin v. Yoder, 406 U.S. 205 (1972)
and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test for striking
sensible balances between religious liberty and competing government
interests”). Consistent with this pre-Smith framework, FERA provides that
the “government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.”
§ 41-1493.01(B); see also Hardesty, 222 Ariz. at 366 ¶ 10; cf. Yoder, 406 U.S. at
220 (“A regulation neutral on its face may, in its application, nonetheless
offend the constitutional requirement for governmental neutrality if it
unduly burdens the free exercise of religion.”).
¶126 Here, Plaintiffs concede the Ordinance is a facially neutral law
of general applicability. See Hardesty, 222 Ariz. at 365 ¶ 7 n.6; see also Smith,
494 U.S. at 881–82. As a result, their free exercise claim is based solely on
FERA.
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A. FERA Analysis
¶127 FERA establishes a two-step process. First, the party raising
a free exercise claim must prove that: (1) their action or refusal to act is
motivated by a religious belief, (2) the religious belief is sincerely held, and
(3) the government’s regulation substantially burdens the free exercise of
their religious beliefs. Hardesty, 222 Ariz. at 366 ¶ 10; see also A.R.S. § 41-
1493(2); § 41-1493.01(B). If the claimant proves these elements, then the
burden shifts to the government to show that the law (1) furthers a
compelling governmental interest and (2) is the “least restrictive means of
furthering that compelling governmental interest.” § 41-1493.01(C)(1)–(2);
see also Hardesty, 222 Ariz. at 366 ¶ 10. Because the text and requirements
of FERA and RFRA are nearly identical, we rely on cases interpreting RFRA
as persuasive authority in construing the requirements of FERA. Hardesty,
222 Ariz. at 367 ¶ 13 n.7.
1. Religious Belief
¶128 A free exercise claim under FERA must be based on a
religious belief. A.R.S. § 41-1493(2) (defining the “[e]xercise of religion” as
“the ability to act or refusal to act in a manner substantially motivated by a
religious belief”); Hardesty, 222 Ariz. at 366 ¶ 10; cf. Yoder, 406 U.S. at 215
(“A way of life, however virtuous and admirable, may not be interposed as
a barrier to reasonable state regulation . . . if it is based on purely secular
considerations; to have the protection of the Religion Clauses, the claims
must be rooted in religious belief.”). To satisfy this element, a claimant need
not prove that a belief is a central tenet of her faith. § 41-1493(2) (stating
that under FERA, a claimant is not required to show that one’s religious
exercise “is compulsory or central to a larger system of religious belief”).
¶129 Here, it is undisputed that Plaintiffs’ “refusal to act,” that is,
declining to express messages in their custom invitations celebrating same-
sex weddings, is substantially motivated by Duka and Koski’s religious
belief that marriage is only between a man and a woman.
2. Sincerity of Belief
¶130 The City also concedes that Duka and Koski’s religious beliefs
about same-sex marriage are sincere. Duka and Koski base their beliefs on
the Bible and the shared traditions and practices of Christians. Cf. Yoder,
406 U.S. at 216 (“[T]he traditional way of life of the Amish is not merely a
matter of personal preference, but one of deep religious conviction, shared
by an organized group, and intimately related to daily living. That the Old
Order Amish daily life and religious practice stem from their faith is shown
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by the fact that it is in response to their literal interpretation of the Biblical
injunction from the Epistle of Paul to the Romans, ‘be not conformed to this
world.’”).
3. Substantial Burden
¶131 Once a court determines that a party has a sincere religious
belief, it must examine whether the government’s regulation imposes a
substantial burden on the party’s free exercise of that belief. Hardesty, 222
Ariz. at 366 ¶ 10; see also A.R.S. §§ 41-1493(2),-1493.01(B). Not every burden
is substantial; FERA provides that “trivial, technical or de minimis
infractions” do not substantially burden a person’s free exercise of religion.
§ 41-1493.01(E); see Navajo Nation v. United States Forest Service, 535 F.3d
1058, 1070 (9th Cir. 2008) (stating that under RFRA, a government
regulation that merely offends a person’s “religious sensibilities” is not a
substantial burden of free exercise of religion). Thus, under the pre-Smith
framework adopted by FERA, a substantial burden exists only when
government action “forces” individuals “to choose between following the
precepts of [their] religion” and receiving a government benefit, Sherbert,
374 U.S. at 404, or it “compels them, under threat of criminal sanction, to
perform acts undeniably at odds with fundamental tenets of their religious
beliefs,” Yoder, 406 U.S. at 218; see also Navajo Nation, 535 F.3d at 1069–70
(applying the substantial burden framework set forth in Yoder and Sherbert
to RFRA, and observing that a threat of civil sanctions may also constitute
a substantial burden).
¶132 Yoder is instructive on this issue. In Yoder, members of the Old
Order Amish were convicted of violating Wisconsin’s compulsory school
attendance law because they refused to send their children to high school
after completing eighth grade. 406 U.S. at 207–08. The Amish parents
believed that sending their children to a public high school “was contrary
to the Amish religion and way of life.” Id. at 209. The Supreme Court
concluded that the statute placed a substantial burden on the parents’ free
exercise of religion. Id. at 218. The Court reasoned that the statute
“affirmatively compel[led] [Amish parents], under threat of criminal
sanction, to perform acts undeniably at odds with fundamental tenets of
their religious beliefs.” Id.; see also id. at 237 (Stewart, J., concurring) (“This
case involves the constitutionality of imposing criminal punishment upon
Amish parents for their religiously based refusal to compel their children
to attend public high schools. Wisconsin has sought to brand these parents
as criminals for following their religious beliefs, and the Court today rightly
holds that Wisconsin cannot constitutionally do so.”); cf. Smith, 494 U.S.
at 898 (O’Connor, J., concurring in the judgment) (“A State that makes
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Opinion of the Court
criminal an individual’s religiously motivated conduct burdens that
individual’s free exercise of religion in the severest manner possible, for it
‘results in the choice to the individual of either abandoning his religious
principle or facing criminal prosecution.’” (quoting Braunfeld v. Brown, 366
U.S. 599, 605 (1961))).
¶133 Similarly, in Hobby Lobby, the Supreme Court addressed
whether a Health and Human Services (“HHS”) regulation substantially
burdened the free exercise of religion under RFRA for the owners of three
for-profit corporations. 573 U.S. at 688–91. The owners, who opposed
abortion on religious grounds, objected to the regulation because it required
them to provide employee health care coverage for certain methods of birth
control. Id. at 691. Because the owners viewed these birth control
procedures as a form of abortion, they refused to comply with the
regulation. Id. at 691, 701, 703. However, by violating the regulation, the
owners faced severe financial penalties and assessments which, in some
instances, totaled hundreds of millions of dollars. Id. at 720.
¶134 The Court concluded that these financial sanctions and
penalties clearly imposed a substantial burden on the owners’ exercise of
their religious beliefs. Id. at 726. Indeed, although the owners were not
required to actively participate in the objectionable procedures (all of those
decisions were made independently by a female employee upon consulting
with her physician), the Court held that “[b]ecause the contraceptive
mandate forces them to pay an enormous sum of money . . . if they insist on
providing insurance coverage in accordance with their religious beliefs, the
mandate clearly imposes a substantial burden on those beliefs.” Id.; cf. Holt
v. Hobbs, 135 S. Ct. 853, 860, 862–63 (2015) (holding that under the Religious
Land Use and Institutionalized Persons Act (“RLUIPA”), which “mirrors”
RFRA in the context of free exercise claims made by prisoners, the
Department of Corrections’ grooming policy, which threatened a prisoner
with disciplinary action if he grew a beard as dictated by his Muslim faith,
substantially burdened the prisoner’s free exercise of religion).
¶135 Here, the coercion the Ordinance places on Plaintiffs to
abandon their religious belief is unmistakable. The Ordinance, as applied
by the City, presents Plaintiffs with a stark choice. On one hand, they can
choose to forsake their religious convictions and create wedding invitations
celebrating same-sex marriage. But, on the other hand, if they choose to
remain faithful to their beliefs and violate the Ordinance by refusing to
make such invitations, they face severe civil and criminal sanctions. Indeed,
for every day Duka and Koski are in violation of the Ordinance, they may
be ordered to serve up to six months in jail. See §§ 1-5; 18-4(B); 18-7(A).
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Thus, for example, if Plaintiffs post their proposed Statement on their
website for a month, Duka and Koski could face up to fifteen years in jail.
See id. Even if placed on probation, Plaintiffs face a possible fine of $2,500;
for a continuing violation, the fine could be tens of thousands of dollars. Id.
§§ 1-5, 18-4(B). Alternatively, the City has the authority under the
Ordinance’s nuisance provision to simply shut down Duka and Koski’s
business altogether. See id. § 1-5.
¶136 Despite the clear coercive effect of the Ordinance, the City
claims that requiring Duka and Koski to create custom invitations for same-
sex weddings does not place any burden on their exercise of their religious
beliefs. Specifically, the City argues that Duka and Koski’s “religion says
nothing about making wedding invitations,” and the act of creating a
wedding invitation is too attenuated from their beliefs about marriage to
place any burden, much less a substantial burden, on their free exercise of
religion.
¶137 This argument is neither novel nor new. The United States
Supreme Court rejected precisely the same argument in Hobby Lobby.
There, in addressing the owners’ RFRA claim, the Court stated that the
government’s main argument was “that the connection between what the
[owners] must do (provide health-insurance coverage for four methods of
contraception that may operate after the fertilization of an egg) and the end
that they find to be morally wrong (destruction of an embryo) is simply too
attenuated.” 573 U.S. at 723. The Court stated, however, that “[t]his
argument dodges the question” of whether the regulation imposed “a
substantial burden on the ability of the [owners] to conduct business in
accordance with their religious beliefs.” Id. at 724. Rather, the Court observed
that the government’s argument raised “a very different question that the
federal courts have no business addressing”: “whether the religious belief
asserted in a RFRA case is reasonable.” Id.
¶138 In rejecting this “reasonableness” argument, the Court
focused on the fact that the owners “believe that providing the coverage
demanded by the HHS regulations is connected to the destruction of an
embryo in a way that is sufficient to make it immoral for them to provide
the coverage.” Id. The Court stressed that in addressing whether the
regulation posed a substantial burden on the owners’ religious beliefs, its
“narrow function” was not to determine whether the owners’ beliefs were
“flawed,” but whether “the line drawn [by the owners] reflects ‘an honest
conviction.’” Id. at 724–25 (alteration in original) (citation omitted). Thus,
with this framework in mind, the Court concluded that the regulation
imposed a substantial burden on the owners’ free exercise of religion
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Opinion of the Court
because they “sincerely believe that providing the insurance coverage
demanded by the HHS regulations lies on the forbidden side of the line,
and it is not for us to say that their religious beliefs are mistaken or
insubstantial.” Id. at 725; cf. Masterpiece Cakeshop, 138 S. Ct. at 1731 (stating
that the government is “obliged under the Free Exercise Clause to proceed
in a manner neutral toward and tolerant of” a person’s religious beliefs, and
“[i]t hardly requires restating that government has no role in deciding or
even suggesting whether the religious ground for [a person’s] conscience-
based objection is legitimate or illegitimate”); cf. Dale, 530 U.S. at 651, 653
(stating that “it is not the role of the courts to reject a group’s expressed
values because they disagree with those values or find them internally
inconsistent,” and therefore, “[a]s we give deference to an association’s
assertions regarding the nature of its expression, we must also give
deference to an association’s view of what would impair its expression”).
¶139 Thus, based on Hobby Lobby, we reject the City’s invitation to
assess the reasonableness of Duka and Koski’s sincerely held religious
beliefs. This is not a proper consideration in determining whether the
Ordinance places a substantial burden on their right to free exercise of
religion.
¶140 By adhering to Hobby Lobby, we do not, as the dissent claims,
eliminate the substantial burden element from the FERA analysis. Rather,
we follow the well-established rule that courts may not, under the guise of
conducting a substantial burden analysis, examine the reasonableness of a
person’s belief. 573 U.S. at 724. This deference does not, of course, dispose
of the court’s legal duty under FERA to determine whether a law places a
substantial burden on a person’s religious belief. As we note above, that
element is satisfied here because the Ordinance coerces Plaintiffs into
violating their belief. Supra ¶¶ 131–35.
¶141 However, the dissent seeks to evade the coercive effect of the
Ordinance by attempting to refocus the substantial burden analysis on
whether Plaintiffs’ belief is substantial. This argument, however, is nothing
more than a repackaging of the City’s reasonableness argument. For
example, the dissent contends that Plaintiffs’ adherence to their belief is
flawed and inconsistent. Infra ¶¶ 208-09. However, by making this
argument the dissent crosses the line drawn by Hobby Lobby, which
prohibits a court from examining the alleged flaws or inconsistencies of a
person’s beliefs while engaging in a substantial burden analysis. 573 U.S.
at 724–25.
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¶142 The dissent also asserts that Plaintiffs have failed to identify
any “fundamental tenet” of their faith prohibiting them from creating the
subject invitations. Of course, under FERA, Plaintiffs are not required to
show that their belief is a “fundamental” tenet of their faith. A.R.S. § 41-
1493(2). Moreover, this argument ignores the record, which clearly shows
that Plaintiffs do have a fundamental, sincere belief that they cannot,
consistent with their faith, create custom wedding invitations celebrating a
same-sex marriage. See supra ¶¶ 15–16.
¶143 Next, citing Hobby Lobby as authority, the dissent claims that
no substantial burden exists here because the Ordinance does not require
Plaintiffs to participate in same-sex weddings. Infra ¶ 226, 228 (Timmer, J.,
dissenting). However, the dissent’s reliance on Hobby Lobby is misplaced.
There, the HHS regulation did not require the owners to actually attend or
perform an abortion, nor did it require them to approve or be involved in
an employee’s decision to undergo such a procedure; rather, the Court
determined that simply providing insurance coverage for these procedures
was sufficient to impose a substantial burden. See supra ¶ 134. Here, by
comparison, the Ordinance compels similar, if not greater “participation”
from Plaintiffs in a same–sex wedding. For example, the Ordinance forces
Plaintiffs to personally write, paint and create artwork celebrating a same–
sex wedding. Additionally, it requires them to design and create invitations
that enable and facilitate the attendance of guests at a same–sex wedding.
Cf. Masterpiece Cakeshop, 138 S. Ct. at 1744 (Thomas, J., concurring in part
and in the judgment) (“Forcing Phillips to make custom wedding cakes for
same-sex marriages requires him to, at the very least, acknowledge that
same-sex weddings are ‘weddings’ and suggest that they should be
celebrated—the precise message he believes his faith forbids.”).
¶144 Finally, the dissent argues that the Ordinance “itself” does not
place a substantial burden on Plaintiffs’ belief. Infra ¶ 223 (Timmer, J.,
dissenting). Specifically, the dissent claims that the Ordinance does not
prohibit Plaintiffs from expressing their religious beliefs about same–sex
marriage, and, therefore, the penalty provisions of the Ordinance are
irrelevant to the substantial burden analysis. Id.
¶145 This argument simply reasserts the dissents’ position that the
Ordinance only applies to discriminatory conduct, not speech. We
disagree. The Ordinance, as applied by the City, compels Plaintiffs to
express a message celebrating same–sex marriage that violates their
religious belief. If they refuse to abandon their belief, they violate the
Ordinance and face the threat of severe criminal and civil sanctions. This is
the very definition of a substantial burden.
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¶146 Accordingly, as applied to Plaintiffs’ custom wedding
invitations, the Ordinance substantially burdens the free exercise of Duka
and Koski’s religious beliefs.
B. City’s Burden
¶147 Because Plaintiffs have satisfied their burden under FERA,
the City bears the burden of showing that the Ordinance (1) furthers a
compelling governmental interest, and (2) is the least restrictive means to
further that compelling interest. A.R.S. § 41-1493.01(C); Hardesty, 222 Ariz.
at 366 ¶ 10.
¶148 As noted above, the Ordinance generally serves the
compelling purpose of eradicating discrimination in the provision of
publicly available goods and services. Supra ¶ 106. However, like
Plaintiffs’ rights to free speech, that interest is not sufficiently overriding to
force Plaintiffs to create custom wedding invitations celebrating same-sex
marriage in violation of their sincerely held religious beliefs.
¶149 We also conclude that the Ordinance’s application to
Plaintiffs in this case is not the least restrictive means of furthering its
asserted governmental interest. Under the least restrictive means test, the
government must “show[] that it lacks other means of achieving its desired
goal without imposing a substantial burden on the exercise of religion by
the objecting part[y].” Hobby Lobby, 573 U.S. at 728. To prove this element,
the government is not required to show that no less restrictive means is
“conceivable,” but only that the proposed alternatives are “ineffective or
impractical.” Hardesty, 222 Ariz. at 368 ¶ 21. This is a focused inquiry,
requiring the government to “establish that applying the law in the
particular circumstances is the least restrictive means.” Id. at 367 ¶ 14
(emphasis added). As part of this analysis, a court must “scrutinize[] the
asserted harm of granting specific exemptions to particular religious
claimants.” O Centro, 546 U.S. at 431; see also Holt, 135 S. Ct. at 864 (stating
that under RFRA, the government must prove that denying a religious
“exemption is the least restrictive means of furthering a compelling
governmental interest”). This includes considering the harm an exemption
may have on benefits the law confers on third parties. Hobby Lobby, 573 U.S.
at 729 n.37.
¶150 The City has not carried its heavy burden. Applying the
Ordinance to regulate Duka and Koski’s personal expression of their
religious beliefs in their custom wedding invitations is not the least
restrictive means to accomplish the goal of the Ordinance. Rather, as we
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have noted above, the purpose of the Ordinance is properly served by
permitting a narrow exemption for Plaintiff’s creation of the single product
we consider in this case—Plaintiffs’ custom wedding invitations.
¶151 Both the City and the dissent argue, however, that to
effectively deter discriminatory conduct, the Ordinance must be uniformly
applied to all businesses and all products. According to the dissent, this
goal cannot be achieved by allowing “ad hoc exemptions for businesses
based on their owners’ beliefs.” Infra ¶ 211.
¶152 In considering a possible exemption for Plaintiffs’ invitations,
the City and the dissent employ an incorrect, one-sided least restrictive
means analysis. As the dissent correctly notes, Hobby Lobby states that, in
considering an exemption, a court must consider the impact of granting an
exemption on third parties. Id. 573 U.S. at 729 n.37. But the dissent
mistakenly suggests that Hobby Lobby granted an exemption only because it
had zero impact on affected third parties—specifically, female employees
of the owners’ companies. See Hobby Lobby, 573 U.S. at 693. Rather, the
Court simply noted that, in weighing the government’s compelling interest
against the free exercise rights of the owners, it considered the economic
impact on female employees. Id. at 692–93, 728–32 & n.37. Of course, no
one could argue that the impact of granting the exemption in Hobby Lobby
was “zero”; after all, granting the exemption effectively forced any female
employee who wished to obtain health care coverage for certain birth
control procedures to obtain their own private insurance. Moreover,
logically speaking, if the least restrictive means test only permits
exemptions that have “zero” impact on the government’s compelling
interest, it is difficult, if not impossible, to conceive of any exemption that
could satisfy the test.
¶153 But the more fundamental flaw in the dissent’s approach is
that, by focusing exclusively on the impact an exemption might have on
same-sex couples, it ignores the court’s duty under FERA to balance the free
exercise rights of an individual against the government’s compelling
interest. See 1999 Sess. Laws at 1770, § 2(A)(6) (stating that FERA adopted
the pre-Smith framework, in part, because it provides “a workable test for
striking sensible balances between religious liberty and competing
government interests”). Indeed, in applying RFRA, Hobby Lobby used the
same balancing approach in determining whether the owners were entitled
to an exemption. See id., 573 U.S. at 728–32, 735–36; see also O Centro, 546
U.S. at 434, 435–36 (stating that under RFRA, courts must consider whether
religious exemptions are required for generally applicable laws).
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Opinion of the Court
¶154 Here, under the dissent’s least restrictive means test, the
City’s nondiscrimination purpose simply overrides all conflicting
individual rights and liberties. That, of course, is not the law. As Hobby
Lobby noted, “[e]ven a compelling interest may be outweighed in some
circumstances by another even weightier consideration.” Id. at 727.
Likewise, Masterpiece Cakeshop did not hold that public accommodations
laws were immune from free exercise exemptions; rather, it clearly
contemplated that some exemptions, if narrowly confined, were
permissible. Masterpiece Cakeshop, 138 S. Ct. at 1723–24, 1727–29. And while
we must, in determining whether Plaintiffs’ invitations are entitled to an
exemption from the Ordinance, consider the impact on the City’s
nondiscrimination purpose, we must also consider the effect of compelling
Plaintiffs to create these invitations. See Janus, 138 S. Ct. at 2464 (stating that
“[w]hen speech is compelled . . . additional damage is done” because it
forces “free and independent individuals to endorse ideas they find
objectionable[, which] is always demeaning,” and coerces individuals “into
betraying their convictions.”).
¶155 Additionally, if it is true, as the City and the dissent claim,
that uniform application of the Ordinance is necessary to achieve its
nondiscrimination goal, then no business or organization should be exempt
from its provisions. However, pursuant to § 18-4(B)(4)(a), the Ordinance’s
prohibitions regarding discrimination based on sexual orientation “shall
not apply to bona fide religious organizations” or “be construed to prohibit
or prevent” them “from taking any action which is calculated by the
organization to promote the religious principles for which it is established
or maintained.” In short, the Ordinance allows some organizations, based
on their religious beliefs, to discriminate against individuals based on their
sexual orientation, the very thing the Ordinance seeks to eliminate. See
Reed, 135 S. Ct. at 2232 (stating that a law does not further a compelling state
interest when it permits exemptions that “leave[] appreciable damage to
that supposedly vital interest unprohibited” (citation omitted)); cf. O Centro,
546 U.S. at 423, 432–37 (stating that the existence of a religious exemption
for the sacramental use of peyote, a prohibited drug, belied the
government’s contention that exempting a religious sect’s sacramental use
of hoasca would undermine the effectiveness of federal drugs laws).
¶156 Here, the City has neither shown nor argued that allowing an
exemption for religious organizations has undercut the effectiveness of the
Ordinance. Of course, the City could “demonstrate a compelling interest in
uniform application” of the Ordinance “by offering evidence that granting
the requested religious accommodations would seriously compromise its
ability to administer the program.” O Centro, 546 U.S. at 435. But the City
48
BRUSH & NIB ET AL. V. CITY OF PHOENIX
Opinion of the Court
has made no effort to do so here. Rather, it simply asserts, with no evidence,
that granting an exemption for Plaintiffs’ custom invitations would
encourage other businesses to use FERA as a tool to discriminate against
customers based on their sexual orientation, race and gender. 2
¶157 The City’s speculation about what might happen is not
evidence. Indeed, such “slippery slope” arguments not grounded in fact
were rejected in Hobby Lobby. There, the government similarly argued that
granting a religious exemption to the business owners “will lead to a flood
of religious objections regarding a wide variety of medical procedures and
drugs, such as vaccinations and blood transfusions.” Hobby Lobby, 573 U.S.
at 732. Rejecting that argument, the Court stated that the government
“made no effort to substantiate this prediction,” and there was no “evidence
that any significant number of employers sought exemption, on religious
grounds, from any of [the] coverage requirements other than the
contraceptive mandate.” Id. at 732–33.
¶158 Like Hobby Lobby, we find the same lack of evidence here. It
is not our role to speculate about whether exempting Duka and Koski’s
creation of custom wedding invitations would cause other businesses to
seek a religious exemption from the Ordinance. We have no evidence in
the record to make a conclusion one way or another. Absent such evidence,
all we can do is enforce FERA as written, under the standards it provides.
Cf. id. at 735–36 (“The dissent worries about forcing the federal courts to
apply RFRA to a host of claims made by litigants seeking a religious
exemption from generally applicable laws, and the dissent expresses a
desire to keep the courts out of this business . . . . The wisdom of Congress’s
judgment on this matter is not our concern. Our responsibility is to enforce
RFRA as written, and under the standard that RFRA prescribes . . . .”).
¶159 Here, like the religious organizations exempt under the
Ordinance, Brush & Nib was established, and is operated, to promote
certain religious principles. Although Plaintiffs operate Brush & Nib for
profit, this does not mean that they cannot, like a religious organization or
church, also further their “religious objectives as well.” Id. at 712. And the
fact Plaintiffs operate for profit has no bearing on their protection under
2 We note that the Ordinance’s exemption could not be used even by
a bona fide religious organization, let alone a business owner, to refuse
service based on “race, color, religion, sex, national origin . . . or disability”;
the exemption, by its terms, only applies to marital status, sexual
orientation, and gender identity or expression. See PCC § 18-4(B)(2), 18-
4(B)(4).
49
BRUSH & NIB ET AL. V. CITY OF PHOENIX
Opinion of the Court
FERA. FERA, by its terms, makes no such distinction, nor does it limit its
protections to churches and other nonprofit religious organizations. Id. at
691–92, 705–06, 718–19 (refusing to exclude closely-held corporations from
RFRA protections because of their for-profit nature). The purpose of the
exemption under the Ordinance is to allow religious organizations “to
promote the religious principles for which it is established or maintained.”
§ 18-4(B)(4)(a).
¶160 Although the dissent claims our decision sanctions status-
based discrimination, that mischaracterizes our analysis and our holding.
Our decision today is limited to one, very unique product (Plaintiffs’
custom wedding invitations), and the protection afforded this product is
based solely on the celebratory messages Plaintiffs convey (or refuse to
convey), not the race, gender or sexual orientation of the customer. Supra
¶¶ 14, 16, 76. Indeed, Plaintiffs have never asserted that their faith
precludes them from serving same-sex couples, or that it requires them to
refuse service to a customer based on their sexual orientation. Rather, as
noted above, Plaintiffs consistently testified that they are willing to serve
all customers, regardless of their status. But what they refuse to do is
violate their religious convictions by creating a message for anyone that
celebrates same-sex marriage.
¶161 Finally, FERA itself creates several barriers to any business
owners seeking to use their religious beliefs to engage in status-based
discrimination. For example, such an owner would have to prove that his
religious belief is sincere, and not simply a pretext for engaging in illegal
discrimination based on status. Our courts are well-equipped to address
questionable or frivolous assertions of religious beliefs where the evidence
shows that such a belief is being used for purely pretextual purposes. Cf.
Hobby Lobby, 573 U.S. at 718 (stating that “the scope of RLUIPA shows that
Congress was confident of the ability of the federal courts to weed out
insincere claims”); Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (stating
that RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s
professed religiosity”).
¶162 More importantly, even if a business owner could somehow
prove that his status-based religious belief is sincere, and that the regulation
imposed a substantial burden on that belief, FERA allows the City to show
that any burden on such a belief is justified by the anti-discrimination
purpose of the Ordinance. And, because an exemption based on status-
based discrimination directly undermines the purpose of the Ordinance,
uniform prohibition of such business practices would be the least restrictive
means to prevent discrimination. See Hardesty, 222 Ariz. at 364 ¶¶ 1, 3, 368–
50
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Opinion of the Court
69 ¶¶ 19–23 (denying defendant’s request for an exemption from a statute
making use of marijuana illegal, because based on defendant’s asserted
religious belief in unlimited use of marijuana, including using marijuana
while driving, granting an exemption would undermine the public safety
purpose of the statute); cf. Masterpiece Cakeshop, 138 S. Ct. at 1727–28 (stating
that under the Colorado public accommodations law “religious and
philosophical objections to gay marriage are protected views and in some
instances protected forms of expression,” but that “it is a general rule that
such objections do not allow business owners and other actors . . . to deny
protected persons equal access to goods and services”).
¶163 We therefore conclude that the Ordinance, as applied to
Plaintiffs’ creation of their custom wedding invitations, places a substantial
burden on their right to free exercise of religion. Additionally, the City has
failed to show that applying the Ordinance to Plaintiffs’ invitations is the
least restrictive means to achieve its asserted compelling interest. Thus, the
trial court erred in denying Plaintiffs’ motion for summary judgment on
their FERA claim and instead granting summary judgment in favor of the
City on that claim.
Conclusion
¶164 Freedom of speech and religion requires tolerance of different
beliefs and points of view. In a diverse, pluralistic society such as ours,
tolerance of another’s beliefs and point of view is indispensable to the
survival and growth of our democracy. See Palko v. Connecticut, 302 U.S.
319, 326–27 (1937) (stating that freedom of thought and expression “is the
matrix, the indispensable condition, of nearly every other form of
freedom”), overruled on other grounds by Benton v. Maryland, 395 U.S. 784
(1969). For this reason, we have always recoiled at those governments and
societies that repress or compel ideas or religious beliefs. See Thomas v.
Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring) (“The very purpose
of the First Amendment is to foreclose public authority from assuming a
guardianship of the public mind through regulating the press, speech, and
religion.”).
¶165 It is the duty of the judiciary to enforce the text of our
constitution and statutes and the fundamental rights protected within
them. Enforcing and protecting these rights preserves “individual freedom
of mind in preference to officially disciplined uniformity for which history
indicates a disappointing and disastrous end.” Barnette, 319 U.S. at 637.
And while our dissenting colleagues may view a result contrary to our
holding today as more progressive, “it is not forward thinking to force
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
Opinion of the Court
individuals to ‘be an instrument for fostering public adherence to an
ideological point of view [they] fin[d] unacceptable.’” NIFLA, 138 S. Ct. at
2379 (Kennedy, J., concurring) (alteration in original) (quoting Wooley, 430
U.S. at 715). After all, “[w]hile the law is free to promote all sorts of conduct
in place of harmful behavior, it is not free to interfere with speech for no
better reason than promoting an approved message or discouraging a
disfavored one, however enlightened either purpose may strike the
government.” Hurley, 515 U.S. at 579.
¶166 To conclude, we hold that the Ordinance, as applied to
Plaintiffs’ custom wedding invitations, and the creation of those invitations,
unconstitutionally compels speech in violation of the Arizona
Constitution’s free speech clause. See Appendix 1. We further conclude
that the Ordinance, as applied to Plaintiffs’ creation of custom wedding
invitations, substantially burdens Plaintiffs’ free exercise of religion, and
that the City has not demonstrated that its application of the Ordinance to
Plaintiffs in this way is the least restrictive means of achieving its asserted
interest in eradicating discrimination. Id. Thus, the application of the
Ordinance in this case violates Plaintiffs’ free exercise rights under FERA,
§ 41-1493.01. Finally, because Plaintiffs’ intended refusal to make custom
wedding invitations celebrating a same-sex wedding is legal activity under
Arizona’s free speech clause and FERA, Plaintiffs are entitled to post a
statement, consistent with our holding today, indicating this choice.
¶167 We therefore vacate the court of appeals’ opinion except for
paragraphs 33 through 45 and 51 through 53, reverse the trial court’s rulings
on summary judgment, and direct entry of summary judgment in favor of
Plaintiffs with respect to the creation of custom wedding invitations that
are materially similar to the invitations in the record. See Appendix 1.
further, because Plaintiffs have prevailed against the City on their FERA
claim, upon compliance with ARCAP 21, they are entitled to a mandatory
award of attorney fees under A.R.S. § 41-1493.01(D) only as to those fees
incurred in this Court. Id. (“A party who prevails in any action to enforce
this article against a government shall recover attorney fees and costs.”).
We deny Plaintiffs’ remaining fee requests.
52
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
BOLICK, J., concurring.
¶168 I join the Court’s analysis and write separately to further
examine the state constitutional provision under which this challenge was
brought.
¶169 Article 2, section 6 of the Arizona Constitution provides in
full: “Every person may freely speak, write, and publish on all subjects,
being responsible for the abuse of that right.” That language is majestic in
its sweep, and we have consistently found that it provides greater
protection for speech than the First Amendment. See, e.g., Coleman v. City of
Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (“Article 2, Section 6 of Arizona’s
Constitution . . . is in some respects more protective of free speech rights
than the First Amendment.”); State v. Stummer, 219 Ariz. 141, 143 ¶ 17 (2008)
(“We have also stated that Article 2, Section 6 has ‘greater scope than the
first amendment.’” (citation omitted)); Mountain States Tel. & Tel. Co. v. Ariz.
Corp. Comm’n, 160 Ariz. 350, 356 (1989) (“[W]e apply here the broader
freedom of speech clause of the Arizona Constitution.”). Even when the
parties do not fully develop their argument on the Arizona constitutional
provision, where it constitutes a question on which we granted review, we
are duty-bound to construe it. Ariz. Const. art. 2, § 32 (“The provisions of
this Constitution are mandatory, unless by express words they are declared
to be otherwise.”); Stummer, 219 Ariz. at 140 ¶ 1, 142 ¶ 14; Mountain States,
160 Ariz. at 354 (“Because the parties explicitly invoked Arizona’s
constitution, we must implement whatever protection it extends.”).
¶170 As ours is the forty-eighth state, the framers of our
constitution had abundant lessons from which to draw in framing its
provisions. Former Chief Justice Rebecca Berch explained that our
constitution’s framers “had the opportunity to ponder more than 100 years
of United States history before penning their own constitution, allowing
them to adopt or adjust provisions employed by the federal government or
other states to meet Arizona’s needs.” Rebecca White Berch et al.,
Celebrating the Centennial: A Century of Arizona Supreme Court Constitutional
Interpretation, 44 Ariz. St. L.J. 461, 468 (2012). As our constitution’s framers
chose to secure free speech with language different and more protective
than the First Amendment, our constitutional oath requires us to invest
those words with their fully intended meaning.
¶171 In applying state constitutional provisions, federal
constitutional jurisprudence addressing the issue at hand is always relevant
because the United States Constitution sets the base-line for the protection
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
of individual liberties. Petersen v. City of Mesa, 207 Ariz. 35, 37 ¶ 8 n.3 (2004);
State v. Sieyes, 225 P.3d 995, 1003 ¶ 28 (Wash. 2010); see City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982); PruneYard Shopping Ctr. v.
Robins, 447 U.S. 74, 81 (1980). But “a state court is entirely free to read its
own State’s constitution more broadly than th[e United States Supreme]
Court reads the Federal Constitution.” City of Mesquite, 455 U.S. at 293. The
U.S. Constitution “sets a floor for the protection of individual rights. . . .
Other federal, state, and local government entities generally possess
authority to safeguard individual rights above and beyond the rights
secured by the U.S. Constitution.” American Legion v. American Humanist
Ass’n, 139 S.Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (citing J.
Sutton, 51 Imperfect Solutions (2018)); Brennan, “State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)).
¶172 Where the language of a state constitutional provision is
identical or similar to its federal counterpart, we should examine how the
provision was interpreted by the federal courts at the time it was adopted
by the State of Arizona to determine its meaning. See Turken v. Gordon, 223
Ariz. 342, 346 ¶ 10 (2010); Moore v. Chilson, 26 Ariz. 244, 255 (1924) (applying
prior-construction canon); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 322–23 (2012) (discussing prior-construction
canon). But where the language is different, we must presume it was
intended to have a different meaning from its federal counterpart and
determine how the different language affects the constitutional provision’s
meaning. Cf. State v. Marcus, 104 Ariz. 231, 233–34 (1969) (noting “it is a
general principle that the most recent Act controls over the earlier Act”
when laws are inconsistent); Scalia & Garner, supra, at 256 (“[A] change in
the language of a prior statute presumably connotes a change in
meaning.”).
¶173 In so doing, if the meaning of the language is clear, we should
enforce it without resorting to secondary interpretative methods. Jett v. City
of Tucson, 180 Ariz. 115, 119 (1994). Where the meaning is unclear, we
should seek to determine the intent of the framers as best we can from the
records of our constitution and other reliable historical sources. Brewer v.
Burns, 222 Ariz. 234, 244 (2009); Fain Land & Cattle Co. v. Hassell, 163 Ariz.
587, 595 (1990); Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986);
McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290 (1982). Finally, where our
provision is similar to provisions in other state constitutions, we may look
to court decisions and other historical records from those other states prior
to our constitution’s ratification to help determine the framers’ intent in
adopting them. See, e.g., Turken, 223 Ariz. at 345–46 ¶¶ 10–11; Mountain
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
States, 160 Ariz. at 355. In construing the provisions of our Declaration of
Rights, we always must be mindful of the admonition that government is
“established to protect and maintain individual rights.” Ariz. Const. art. 2,
§ 2.
¶174 The words of article 2, section 6 and the First Amendment are
very different. The First Amendment provides in relevant part that
“Congress shall make no law . . . abridging the freedom of speech . . . .” It
is phrased as a constraint on government power and is applied through the
Fourteenth Amendment to the states. Gitlow v. New York, 268 U.S. 652, 666
(1925) (incorporating Free Speech Clause of First Amendment); Stummer,
219 Ariz. at 142 ¶ 14 (noting the First Amendment is only a constraint on
government). Our provision, by contrast, is a categorical guarantee of the
individual right to freely speak, write, and publish, subject only to
constraint for the abuse of that right. See Stummer, 219 Ariz. at 142 ¶ 14; see
also id. ¶ 15 (“The encompassing text of Article 2, Section 6 indicates the
Arizona framers’ intent to rigorously protect freedom of speech.”). In fact,
as this Court has stated, “[t]he right of every person to freely speak, write[,]
and publish may not be limited.” Id. ¶ 15 (citation omitted).
¶175 Although this Court has consistently held that article 2,
section 6 provides greater speech protection than the First Amendment, it
has never fully explored the contours of the right. This case involves a
straightforward application of the plain language of article 2, section 6.
Unlike cases in other jurisdictions involving such activities as photography
or custom cake design, the entirety of Plaintiffs’ business, to the extent it is
at issue here, comprises custom writing. As such, it is at the core of our
constitutional protection.
¶176 The ordinance, as applied to Plaintiffs, requires them under
threat of severe criminal penalties or loss of their livelihood to write words
for purposes with which they profoundly disagree. This application of the
ordinance directly implicates the speech protections of the Arizona
Constitution. See Coleman, 230 Ariz. at 359–61 ¶¶ 24–26, 30, 36 & n.5
(holding tattoos, even when comprised of only “standard designs or
patterns,” and the creative process of tattooing are subject to protection
under the Arizona Constitution’s free speech guarantee). When they have
no choice to refuse to write a message with which they disagree, Plaintiffs
are not “freely” writing. See Freely, Webster’s Third New International
Dictionary (3d ed. 2002) (defining “freely” as “of one’s own accord”).
Indeed, in concluding that a law that compelled speech violated the
California Constitution’s similarly-worded free speech guarantee, the
55
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
California Supreme Court declared, “[o]ne does not speak freely when one
is restrained from speaking. But neither does one speak freely when one is
compelled to speak.” Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 750 (Cal.
2000). The City has not suggested any way, such as libel, in which Plaintiffs
have abused that right, see, e.g., Stummer, 219 Ariz. at 142–43 ¶ 16.
¶177 Regardless of the circumstances under which compelled
speech may be tolerated under United States Supreme Court precedent, see,
e.g., Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015), our state
constitution categorically protects an individual’s freedom to write free
from compulsion, being responsible only for the abuse of that right. See
Stummer, 219 Ariz. at 142 ¶ 15 (“[T]he words of Arizona’s free speech
provision ‘are too plain for equivocation.’” (citation omitted)). This case
does not require us to determine the complete scope of that right, such as
the extent to which it protects other speech-related activities. Nor does our
decision extend to anti-discrimination laws that do not by their application
require individuals to speak, write, or publish.
¶178 The dissenters engage in unfortunate hyperbole when they
invoke shameful historical examples of discrimination. Infra ¶¶ 217–18
(Bales, J. (Ret.), dissenting). Plaintiffs do not seek to employ the coercive
apparatus of government to impose disabilities on others. They do not
discriminate against patrons based on their sexual orientation (indeed, it
remains unlawful for them to do so), but instead object to conveying certain
messages regardless of who the patron is. Plaintiffs seek merely to
vindicate their right not to engage in speech that offends their deeply held
religious beliefs, a right not only protected by the Arizona Constitution and
the Free Exercise of Religion Act, but also one of our nation’s most
cherished civil liberties—one that, as Justice Robert H. Jackson declared, is
“beyond the reach of majorities and officials.” W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 629, 638, 642 (1943) (striking down law that required
Jehovah’s Witnesses to salute the American flag). As the Court’s opinion
abundantly illustrates, that right does not evaporate upon enactment of a
public accommodations law, no matter how beneficently inspired.
¶179 There is a reciprocity and universality to these rights of
speech and conscience that give us all a direct stake in protecting them
regardless of the circumstances of a particular case. For instance, Phoenix
could lawfully prohibit a gay calligrapher from discriminating against
Christian patrons whatever their beliefs but could not force the calligrapher
to create a program for a church that preached against same-sex marriage.
Likewise, if Michelangelo were alive, the City could require that he sell his
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BOLICK, Concurring
sculptures free from discrimination but could not compel him to paint a
chapel ceiling in a way he deemed blasphemous. That distinction is the fair
accommodation required in a pluralistic society bounded by constitutional
protections of individual rights.
57
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
BALES, J. (Ret.), joined by TIMMER, V.C.J., and STARING, J., dissenting.
¶180 Can a business selling custom wedding invitations and other
wedding products discriminate against same-sex couples because its
owners, based on their sincerely held religious beliefs, disapprove of same-
sex marriage, itself a constitutionally protected right? We thus are faced
with a tension between our fundamental values of liberty and equality,
because any legal prohibition on discrimination—that is, any guarantee of
equal treatment—necessarily constrains the choices of those who prefer to
treat some people differently.
¶181 Because the interest in preventing discrimination is
compelling, equality prevails when we are dealing with public
accommodations such as businesses serving the public. Vendors can freely
choose which products or services they offer but they cannot refuse to sell
them to groups of customers whom they disfavor. A baker, for example,
might choose to sell only special-order Easter cakes decorated with the
symbol of a cross, but having made that choice, the baker cannot refuse to
sell those cakes to non-Christians. Similarly, a professional photographer
may or may not choose to take children’s photos, but a photographer who
chooses to do so cannot, based on his or her religious beliefs, refuse to
photograph mixed-race children.
¶182 Brush & Nib and its owners argue that creating custom
wedding products, which may include painting or calligraphy, implicates
their freedom of expression and their choice to refuse to sell such products
to same-sex couples is protected by the Arizona Constitution’s free speech
clause and FERA. The majority accepts these arguments at least for certain
“custom” wedding invitations, supra ¶¶ 3, 38, reasoning that barring Brush
& Nib from discriminating against same-sex customers would compel its
owners to engage in “pure speech” conveying a message of approval of
same-sex marriage and impermissibly burden their exercise of religion.
Supra ¶ 2.
¶183 Our constitutions and laws do not entitle a business to
discriminate among customers based on its owners’ disapproval of certain
groups, even if that disapproval is based on sincerely held religious beliefs.
In holding otherwise, the majority implausibly characterizes a
commercially prepared wedding invitation as “pure speech” on the part of
the business selling the product and discounts the compelling public
interest in preventing discrimination against disfavored customers by
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
businesses and other public accommodations. Contrary to the majority,
supra ¶¶ 7–8, requiring businesses to treat customers equally is in no way
comparable to compelling public-school children to salute the flag, the issue
in W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). With respect for my
colleagues, I dissent.
A.
¶184 Our analysis should begin by recognizing how this case
implicates the compelling interest in preventing discrimination in public
accommodations. “[A]cts of invidious discrimination in the distribution of
publicly available goods, services, and other advantages cause unique evils
that government has a compelling interest to prevent . . . .” Roberts v. U.S.
Jaycees, 468 U.S. 609, 628 (1984); see also Bd. of Dirs. of Rotary Int’l v. Rotary
Club of Duarte, 481 U.S. 537, 549 (1987); Bob Jones Univ. v. United States, 461
U.S. 574, 604 (1983).
¶185 As relevant here, the Phoenix Ordinance (“Ordinance”)
provides that a public accommodation may not refuse service “because of .
. . sexual orientation.” Phx., Ariz., City Code (“PCC”) § 18-4(B)(2). Brush
& Nib offers goods and services to the general public and, as it concedes, is
a public accommodation. Thus, the Ordinance requires Brush & Nib to
“perform the same services for a same-sex couple as it would for an
opposite-sex couple.” Elane Photography, LLC v. Willock, 309 P.3d 53, 66 ¶ 35
(N.M. 2013).
¶186 The Ordinance is content neutral and does not purport to
regulate speech, but rather conduct. And the United States Supreme Court
has stated that public accommodations laws “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.” Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 571–72 (1995).
¶187 Brush & Nib sells premade and made-to-order wedding
products, including save-the-date cards, invitations, programs, vows,
marriage certificates, place cards, escort cards, menus, and maps. The
wedding invitations contained in the record identify the names of the
couple to be wed, provide logistical details, and usually—but not always—
expressly invite the recipient to join in the celebration of the couple’s
wedding. See Appendix 1. Some invitations do not refer to “celebration”
but instead ask guests to “share in the joy of the marriage” or merely
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
“[r]equest the honor of [the guest’s] presence.” Id. The invitations also
include various colors as a background or floral designs around the border.
Illustrative copies of two such invitations and Brush & Nib’s other made-
to-order products are attached as Appendix 2; Appendix 1 includes copies
of other invitations in the record referenced by the majority.
¶188 Brush & Nib and its owners seek to refuse to provide services
based on the same-sex status of the marrying couple rather than the content
of the company’s made-to-order products. Notably, this case does not
involve any specific request that Brush & Nib prepare invitations or other
artwork for a same-sex wedding, and the City acknowledges that the
Ordinance does not require Brush & Nib to include any particular message
(such as a statement praising marriage equality) in the items it sells.
Moreover, consistent with the court of appeals’ holding (unchallenged by
the City), Brush & Nib is free to express on its website the owners’ religious
belief that marriage is between a man and a woman. See Brush & Nib Studio,
LC v. City of Phoenix, 244 Ariz. 59, 72–73 ¶ 31 (App. 2018).
¶189 Brush & Nib claims it can refuse to prepare any custom
products for a same-sex wedding, even if they do not identify the gender of
the two people marrying or, for items such as table place cards, even refer
to the couple. At bottom, Brush & Nib argues that its owners’ choosing
among customers based on their sexual orientation—as distinct from
identifying the content of invitations or other custom products—itself
constitutes a legally protected exercise of the freedom of speech or religion.
¶190 This case does not concern the content of the made-to-order
wedding products, but instead the identity of the customer and end user.
Such a refusal constitutes discrimination based on sexual orientation. This
fact is not altered by Plaintiffs’ assertion that they want to refuse to provide
custom wedding products for a same-sex wedding whether the marrying
couple or someone else buys them. Refusing to sell to the latter—for
example, a parent—does not make it any less discriminatory for the
business to refuse to sell to the couple, and because the refusal is based on
the marriage involving a same-sex couple, it is based on sexual orientation.
See PCC § 18-4(B) (prohibiting both directly and indirectly refusing
accommodations based on sexual orientation).
¶191 Unfortunately, the majority sanctions discrimination in this
manner, concluding that Brush & Nib can refuse to prepare custom
wedding invitations for Jordan and Alexis who share the same sex even
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JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
though it would sell identical invitations to an opposite-sex couple with the
same names. Moreover, although the majority limits its holding to
wedding invitations like the exemplars in the record, supra ¶¶ 38, 112, the
majority leaves open the prospect that vendors can otherwise refuse to
prepare custom wedding items that “celebrate” a same-sex wedding. Supra
¶ 160. Today’s decision is also deeply troubling because its reasoning
cannot be limited to discrimination related to same-sex marriage or based
on the beliefs of any one religion, but instead extends more broadly to other
claims of a “right” by businesses to deny services to disfavored customers.
¶192 We should instead recognize that the City’s interest in this
case is compelling and narrowly tailored to enforce “rights of public access
on behalf of [] citizens” as well as protect against deprivation of “individual
dignity” and “the benefits of wide participation in political, economic, and
social life.” Jaycees, 468 U.S. at 625. As the court of appeals cogently
observed, “[t]he least restrictive way to eliminate discrimination in places
of public accommodation is to expressly prohibit such places from
discriminating.” Brush & Nib, 244 Ariz. at 78 ¶ 50.
B.
¶193 Arizona’s free speech clause does not entitle Brush & Nib or
its owners to refuse to provide goods and services for same-sex couples that
it otherwise provides to opposite-sex couples.
¶194 As an initial matter, because the majority has decided the case
on statutory grounds, it should not reach the constitutional issue—a point
we have repeatedly emphasized. See Stanwitz v. Reagan, 245 Ariz. 344, 348
¶ 12 (2018); State v. Gomez, 212 Ariz. 55, 61 ¶ 31 (2006). Exercising such
restraint is especially appropriate here, where the analysis of the free speech
claim in no way depends on the statutory claim under FERA. Moreover,
although Arizona’s constitution provides greater protections for speech
than does the First Amendment in some contexts, I agree with the majority
that we should rely on First Amendment case law in analyzing the claim
under Arizona’s free speech clause.
¶195 In construing article 2, section 6, Arizona courts generally
“have followed . . . interpretations of the United States Constitution.” State
v. Stummer, 219 Ariz. 137, 142 ¶ 16 (2008). The parties below couched their
arguments solely in terms of First Amendment case law, and they have
identified no reason for the Court here to give greater protections under the
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JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
state constitution. See State v. Jean, 243 Ariz. 331, 342 ¶ 39 (2018) (“Merely
referring to the Arizona Constitution without developing an argument is
insufficient to preserve a claim that it offers greater protection than the
Fourth Amendment.”). Finally, nothing in the text of our constitution or its
history suggests that it should be read to give greater protection for
discriminatory conduct by businesses or other public accommodations than
does the Federal Constitution.
¶196 The Ordinance is content neutral and does not compel a
vendor of publicly available goods or services to speak about anything.
Rather, it ensures that once a vendor decides to offer a good or service, a
vendor must not refuse to provide such goods or services to a protected
class that it would otherwise provide to the public. Although the creation
of wedding invitations may be expressive, the operation of a business
catering to the public is not. Furthermore, we recognized in Coleman v. City
of Mesa that a business engaged in expressive activity is still subject to
generally applicable laws. 230 Ariz. 352, 360 ¶ 31 (2012); see also id. at 357
¶ 16 (noting that “[t]he City is not attempting to impose a generally
applicable law . . . to the on-going operations of businesses engaged in
protected speech.”). Coleman concerned a city’s barring a tattoo studio from
operating at a particular location; it did not address whether a business
choosing to sell items with expressive content can refuse to sell things to
some customers that it willingly provides to others.
¶197 Because the Ordinance regulates conduct, and not speech, any
burden on speech is incidental. “[A]n incidental burden on speech . . . is
permissible . . . so long as the neutral regulation promotes a substantial
government interest that would be achieved less effectively absent the
regulation.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (“FAIR”), 547
U.S. 47, 67 (2006) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
In FAIR, the United States Supreme Court upheld a requirement that
universities, as a condition for federal funding, provide military recruiters
the same access to students through university communications and
meeting rooms as allowed other prospective employers. Id. at 55, 70. The
communications between the universities and their students were
undoubtedly speech (even “pure” speech), but the Court recognized, citing
public accommodations cases, that the First Amendment does not protect
discriminatory conduct, even if such conduct is accomplished through
speech. See id. at 62–63.
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
¶198 Here the conduct prohibited by the Ordinance is a vendor’s
refusing to sell to same-sex couples the same goods or services offered to
others. Such a refusal is the very definition of discrimination by a public
accommodation. That complying with the public accommodations law
may require the vendor to engage in “speech” does not mean that
discriminatory conduct is constitutionally protected. See, e.g., FAIR, 547
U.S. at 62 (“[I]t has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by means of
language, either spoken, written, or printed.” (citation omitted)).
¶199 Hurley, on which the majority relies, is inapposite. That case
involved a “peculiar” application of a public accommodations law to a
privately organized parade that the Supreme Court described as
“inherent[ly] expressive[].” 515 U.S. at 568, 572. The Court held that the
parade organizer could not be compelled to include groups whose views
the organizer did not share. Id. at 566. Hurley distinguished this situation
from the generally permissible application of public accommodations laws
to businesses. Id. at 578; see also Butler v. Adoption Media, LLC, 486 F. Supp.
2d 1022, 1059–60 (N.D. Cal. 2007) (noting absence of a “reported decision
extending the holding of Hurley to a commercial enterprise carrying on a
commercial activity”). To the extent a parade analogy is apt, this case is
more like a supplier of banners refusing to sell to a disfavored group than
a parade-organizer being compelled to include groups with objectionable
views. Brush & Nib and its owners are like the suppliers, not the parade-
organizers. The organizers would be the marrying couple and forcing them
to include particular messages in their wedding would be more analogous
to Hurley.
¶200 The majority also argues that the Spence-Johnson test for
determining whether conduct contains an expressive element is
inapplicable here, because the wedding invitations in the record constitute
“pure speech.” Supra ¶ 87. The majority goes even further and holds that
whether a message is attributed to a speaker is irrelevant in this case. Supra
¶ 87. But Hurley itself considered attribution relevant, and it remains a part
of a free speech analysis. See Hurley, 515 U.S. at 575–77; see also FAIR, 547
U.S. at 65 (noting that misattribution was not likely and did not warrant
exempting universities from complying with Solomon Amendment). Thus,
our analysis of the issues should consider whether others would view
Brush & Nib’s creation of custom invitations as expressing its owners’
endorsement of same-sex marriage.
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
¶201 The majority’s conclusion that requiring Brush & Nib to
provide wedding invitations on a non-discriminatory basis would compel
“pure speech” by the owners endorsing same-sex marriage is strained and
implausible. The exemplar invitations do not suggest that they reflect the
views of the business preparing them. See Appendix 1. Invitations to
attend and celebrate a wedding are no more a “celebration” on the part of
the business preparing them than is the wedding cake provided by a caterer
or pictures taken by a wedding photographer. Contrary to the majority’s
conclusion that an invitation constitutes “pure speech” reflecting that Brush
& Nib endorses same-sex marriage, supra ¶ 68, the expression of a wedding
invitation, as “perceived by spectators as part of the whole” is that of the
marrying couple. See Hurley, 515 U.S. at 577; cf. Coleman, 230 Ariz. at 359
¶ 25 (noting that “a tattoo reflects not only the work of the tattoo artist but
also the self-expression of the person displaying the tattoo’s relatively
permanent image”). Of course, nothing requires Brush & Nib to identify
itself as the supplier of an invitation or precludes it from disclaiming that
its sales constitute an endorsement of the beliefs of its customers. Cf. FAIR,
547 U.S. at 49 (“Nothing about recruiting suggests that law schools agree
with any speech by recruiters, and nothing in the Solomon Amendment
restricts what they may say about the military’s policies.”).
¶202 Even if the Ordinance burdens speech, it is a constitutionally
permissible burden because the Ordinance is content neutral, serves a
compelling governmental interest, and there is no less restrictive
alternative. Long-settled law recognizes that a business cannot, based on
its owner’s beliefs, refuse to serve customers who belong to a racial
minority. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968)
(describing such a claim as “patently frivolous”). Similarly, a business,
even one organized as a partnership, cannot justify sex-based
discrimination in its hiring by contending that its conduct reflects the
freedom of association protected by the First Amendment. See Hishon v.
King & Spalding, 467 U.S. 69, 78 (1984). And although the majority suggests
that cases such as Heart of Atlanta Motel are not relevant because they did
not address the First Amendment, supra ¶ 113, there is no reason to think
that the Supreme Court would address such cases differently if that ground
were argued as an excuse for discriminatory conduct. In Hurley, the Court
specifically cited to Heart of Atlanta Motel while noting that public
accommodations laws do not generally violate the First or Fourteenth
Amendments. Hurley, 515 U.S. at 572; cf. Masterpiece Cakeshop, Ltd. v. Colo.
Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (citing Piggie Park in noting
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
that “it is a general rule that [religious and philosophical objections to same-
sex marriage] 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.”).
¶203 The majority’s analysis turns on labeling the conduct at issue
“pure speech,” but this legal formalism harbors two pernicious ideas: one
is that a vendor’s refusal to sell to certain customers is itself protected
expression, the other is that the public interest in preventing discrimination
does not suffice to require a vendor to serve all equally if the items sold
involve expression by the vendor. One would think—indeed fervently
hope—that we are long past the notion that businesses operating as public
accommodations have a “right” to tell certain customers that they do not
serve their kind and so they should take their patronage elsewhere.
Although the majority baldly asserts that its holding will not allow
“invidious, status-based discrimination,” supra ¶ 6, its reasoning suggests
that any business offering made-to-order goods and services with
expressive content—an open universe that includes printing, painting,
tattoos, videography, and other “art” broadly defined—can selectively
refuse to sell to groups of customers whom the business disfavors. Free
speech jurisprudence does not dictate such a result, nor the result in this
case.
C.
¶204 FERA does not allow Plaintiffs to refuse services for a same-
sex wedding that it would provide for an opposite-sex wedding. FERA
generally protects an individual’s exercise of religion from substantial
governmental burdens, but that protection is not unlimited. See A.R.S. § 41-
1493.01(B), (E).
¶205 To prevail on their claim under FERA, Brush & Nib’s owners
must show that refusing to provide same-sex couples with the same
services they would provide to opposite-sex couples: (1) is motivated by
their religious beliefs; (2) their beliefs are sincerely held; and (3) the
government action—here, requiring equal treatment of all customers
without regard to sexual orientation—substantially burdens the exercise of
those beliefs. See State v. Hardesty, 222 Ariz. 363, 366 ¶ 10 (2009). Even if
these elements are established, the prohibition on discrimination will be
upheld if the government meets its burden of showing that it both furthers
65
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
a compelling governmental interest and is the least restrictive means of
furthering that interest. See id.
¶206 On this record, there is no dispute that Brush & Nib’s owners,
in seeking to refuse to create made-to-order invitations and other custom
wedding products for same-sex couples, are motivated by religious beliefs
that they sincerely hold. But the City does dispute their assertion that
complying with the Ordinance would substantially burden the exercise of
their religious beliefs.
¶207 FERA itself does not define what constitutes a “substantial
burden.” It does, however, observe that the term “is intended solely to
ensure that this article is not triggered by trivial, technical, or de minimis
infractions.” § 41-1493.01(E). The majority concludes that a substantial
burden is imposed when state action forces someone to choose between
following the precepts of their religion and receiving a government benefit,
or when it compels them under threat of criminal sanction to perform acts
undeniably at odds with fundamental tenets of their religious beliefs. Supra
¶ 131; see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir.
2008) (adopting similar standard for federal Religious Freedom Restoration
Act (RFRA)).
¶208 In terms of a substantial burden, the issue here is whether the
Ordinance compels Brush & Nib’s owners to perform acts undeniably at
odds with fundamental tenets of their religious beliefs. The City notes that
Brush & Nib’s owners are willing to sell prepackaged wedding products
for use in same-sex weddings. The owners have also acknowledged that
they are willing to sell made-to-order products to opposite-sex couples who
engage in conduct they find objectionable on religious grounds. The City
also observes that the owners have not identified any tenet of their faith that
requires them to sell wedding products to certain customers or forbids
them from selling them to others.
¶209 Because the owners do not object to selling some items for use
in same-sex marriages or selling custom items for other weddings raising
religious concerns, the City infers that requiring them to sell custom items
for same-sex weddings does not substantially burden the exercise of their
religious beliefs. The majority frames the City’s argument as declaring the
owners’ religious beliefs “unreasonable,” and contends that such reasoning
is foreclosed by Hobby Lobby. Supra ¶¶ 137–38. The majority errs on both
points. The City has not argued that the owners’ beliefs are unreasonable;
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JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
nor was such reasoning adopted by the court of appeals. See Brush & Nib,
244 Ariz. at 77 ¶ 49. Moreover, while Hobby Lobby recognizes that it is not
the role of courts to gauge the reasonableness of a claimant’s religious
belief, both RFRA and FERA by their terms require a court to consider
whether a burden is substantial, itself a legal conclusion. On the latter
point, Hobby Lobby does not suggest a court must accept a claimant’s
assertion that a substantial burden exists. See, e.g., Real Alts., Inc. v. Sec’y
Dep’t of Health & Human Servs., 867 F.3d 338, 356–58 (3d Cir. 2017).
¶210 Even if we assume that the Ordinance places a substantial
burden on the owners’ exercise of their religious beliefs, they cannot prevail
on their FERA claim because the City has a compelling interest in
preventing discrimination and has done so through the least restrictive
means. That interest would be thwarted if businesses can discriminate
based on their owners’ views. See Masterpiece Cakeshop, 138 S. Ct. at 1727
(noting that allowing vendors of wedding goods and services to refuse
similar services for gay persons would result in “a community-wide stigma
inconsistent with the history and dynamics of civil rights laws that ensure
equal access to goods, services, and public accommodations”); State v.
Arlene’s Flowers, Inc., 441 P.3d 1203, 1235 ¶ 107 (Wash. 2019). The issue is
not whether the City might have authorized less severe sanctions for
violations of the Ordinance, but instead whether the goal of preventing
discrimination could otherwise be achieved. See Tyms-Bey v. State, 69
N.E.3d 488, 491 (Ind. Ct. App. 2017).
¶211 The goal of equal access cannot be achieved allowing ad hoc
exemptions for businesses based on their owners’ beliefs, even if they are
sincerely held. The “fundamental object” of public accommodation laws is
to prevent the “deprivation of personal dignity that surely accompanies
denials of equal access to public establishments.” Heart of Atlanta Motel, 379
U.S. at 250 (quoting S. Rep. No. 88-872, at 16 (1964)). Allowing businesses
to refuse services to groups they disfavor, and to publicly advertise those
practices, is inherently unequal. This point is not undermined by the City’s
excepting “bona fide religious organizations” from the Ordinance, as the
issue is not whether the Ordinance has proscribed discriminatory conduct
by every entity, but instead whether allowing a broader exception for
businesses under FERA would undermine the statutory goal. Cf. Hardesty,
222 Ariz. at 368–69 ¶ 23 (rejecting argument that religious-use defense for
possession of peyote supported also recognizing FERA-based defense for
possession of marijuana and noting “disparate magnitudes” of respective
uses).
67
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
¶212 In concluding that the City has not shown the Ordinance is
the least restrictive means of preventing discrimination, the majority
mistakenly relies on Hobby Lobby, 573 U.S. 682 (2014), and Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). Supra
¶¶ 155–58. Neither of those cases involved a RFRA-based claim for an
exemption from a public accommodations law, much less questioned the
compelling interest in preventing discrimination by businesses. Cf.
Hardesty, 222 Ariz. at 368 ¶ 19 (recognizing that analysis of least restrictive
means depends on compelling interest involved). In fact, Hobby Lobby
recognized that considering impacts on third parties from a requested
exemption should inform analysis of the government’s compelling interest
and the availability of a less-restrictive means. See 573 U.S. at 729 n.37; id.
at 739 (Kennedy, J., concurring) (noting that religious accommodation may
not “unduly restrict other persons . . . in protecting their own interests”). In
granting a religious accommodation to the closely held corporations under
RFRA, the Court noted that doing so would have “precisely zero” effect on
the interests of others. Id. at 693. O Centro rejected the contention that the
government’s interest in uniformly enforcing the Controlled Substances
Act (CSA) was sufficiently compelling to deny a religious exemption for the
use of hoasca, a ceremonial tea containing a proscribed hallucinogen,
noting that the CSA itself contains an exemption for the religious use of
peyote. 546 U.S. at 423, 425. But O Centro itself recognized that “there may
be instances in which a need for uniformity precludes the recognition of
exceptions to generally applicable laws under RFRA.” Id. at 436.
¶213 The “less restrictive means” contemplated by the majority—
allowing businesses selectively to discriminate based on their owners’
beliefs—enables the very conduct the Ordinance legitimately seeks to
prohibit. Unlike Hobby Lobby or O Centro, granting ad hoc exemptions to
the Ordinance imposes discrete and identifiable harms on those subjected
to discrimination. It is no answer to say that today’s holding is limited to
“custom” wedding invitations or that same-sex couples may obtain
wedding-related services from other vendors. The prohibition on
discrimination not only promotes equal access, but also serves to eradicate
discrimination and the attendant humiliation and stigma that result if
businesses can selectively treat some customers as second-class citizens.
See, e.g., Jaycees, 468 U.S. at 625 (noting that public accommodations laws
“vindicate ‘the deprivation of personal dignity that surely accompanies
denials of equal access to public establishments’” (quoting Heart of Atlanta
Motel, 379 U.S. at 250)).
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
¶214 The majority’s outcome is even more peculiar considering
that, in 2014, the legislature attempted to pass SB 1062, which would have
amended the definition of “person” under FERA to include “any
individual, association, partnership, corporation, church, religious
assembly or institution, or other business organization,” thus giving
businesses an explicit right to invoke FERA as a defense to refusing to
comply with, among other things, public accommodation laws. S.B. 1062,
51st Leg., 2d Reg. Sess. (Ariz. 2014),
https://apps.azleg.gov/BillStatus/GetDocumentPdf/237882. Due to
concerns of discrimination against minority groups, the bill was vetoed by
the governor. See Bill Chappell & Mark Memmott, Arizona Gov. Brewer
Vetoes Controversial Bill, NPR (Feb. 26, 2014),
https://www.npr.org/sections/thetwoway/2014/02/25/282507942/ariz
ona-gov-brewer-vetoes-controversial-bill; cf. J.D. v. Hegyi, 236 Ariz. 39, 43
¶ 21 (2014) (rejecting court of appeals’ statutory interpretation in part as in
tension with statutory purpose, when legislature considered and rejected
proposed amendment).
¶215 The majority errs in concluding that the City has not met its
burden under FERA. The majority is likewise unpersuasive in asserting
that its holding is narrow with limited consequences. Supra ¶¶ 3, 112.
Saying that today’s decision applies only to custom wedding invitations
that are “materially similar” to those in the record, supra ¶ 3, does not
delimit the ruling even as to wedding-related products, as the majority does
not identify the salient characteristics of the invitations in the record;
observes that every invitation is “different and unique,” supra ¶ 78; and
disclaims addressing whether Brush & Nib can refuse to provide other
custom products for same-sex weddings. Supra ¶ 3. More broadly, if
religious beliefs can allow discriminatory refusals of service to same-sex
couples, there is no principled reason why FERA will not also protect
discriminatory denials of goods or services in other contexts to other
protected groups.
D.
¶216 This case is not about the government compelling individuals
to create art or pure speech expressing a message with which they disagree.
Instead, it involves a business, undisputedly a public accommodation,
whose owners wish to deny the same goods and services for a same-sex
wedding that they would provide for an opposite-sex wedding. Barring
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
STARING, Dissenting
those who choose to offer goods and services to the public from
discriminating does not impermissibly compel speech. A vendor may no
doubt engage in a form of expression by refusing to sell things to customers
it disfavors. But expression through such discriminatory conduct, even if
motivated by sincerely held religious beliefs, is not legally protected.
¶217 Beyond the injury to particular customers who are denied
goods or services, today’s holding threatens a more general harm. It could
portend a marketplace in which vendors—regardless of their religious
beliefs—who make items with expressive content can openly proclaim their
refusal to sell to customers whom they disfavor, as can vendors—whether
or not they sell items with expressive content—who, based on their
religious beliefs, object to selling things to some customers that they offer
to others. This prospect diminishes our defining statement that all are
created equal and can only dismay those who believe that this ideal should
be “constantly looked to, constantly labored for, and even though never
perfectly attained, constantly approximated, and thereby constantly
spreading and deepening its influence.” Abraham Lincoln, Speech at
Springfield, Illinois (June 26, 1857), in Abraham Lincoln: Speeches and
Writings 1832–1858 398 (1989).
¶218 Over our history, Arizonans have been denied access to
housing, employment, and public accommodations based on invidious
discrimination. Phoenix’s early history includes shopkeepers placing “No
Mexicans Allowed” signs in their shop windows, landowners inserting
restrictions against people of Chinese descent in property deeds,
widespread refusals to serve black Arizonans in restaurants, and hotel
operators refusing to accommodate Jewish guests. Bradford Luckingham,
Minorities in Phoenix 40, 116, 148 (1994); Hon. Elizabeth Finn, The Struggle
for Civil Rights in Arizona, 34 Ariz. Att’y 24, 27 (July 1998). Through years
of hard work and perseverance, protections like the Ordinance have been
put in place to ensure that we do not repeat the denials of access and
opportunity that plagued our state in its infancy.
¶219 This case, sadly, illustrates that our progress toward equality
has been tortuous and incomplete. Despite today’s mistaken holding, our
constitutions and laws should not entitle a business to discriminatorily
refuse to provide goods or services to customers whom the business
disfavors.
70
BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
TIMMER, V.C.J., dissenting.
¶220 I respect and admire people who not only profess religious
faith but attempt to live by their religious principles. Nevertheless, in an
ordered society of many beliefs, “every person cannot be shielded from all
the burdens incident to exercising every aspect of the right to practice
religious beliefs.” United States v. Lee, 455 U.S. 252, 261 (1982). When people
of faith, like Plaintiffs, choose to engage in commercial activities, “the limits
they accept on their own conduct as a matter of conscience and faith are not
to be superimposed on the statutory schemes which are binding on others
in that activity.” Id. The Ordinance, which binds businesses in the City,
similarly binds Plaintiffs, and neither Arizona’s free speech provision nor
FERA provides an exemption. Although I agree wholeheartedly with
Justice Bales’ dissent, the alarming consequences of today’s decision spur
me to emphasize some points. I also write separately to express
disagreement with the majority’s “substantial burden” analysis under
FERA.
¶221 First, the majority errs by concluding that the Ordinance
compels Plaintiffs to express messages supporting same-sex marriages,
“cuts off the Plaintiffs’ right to express their beliefs about same-sex
marriage,” and attempts to coerce “uniformity of beliefs and ideas” by
“telling [Plaintiffs] what they can and cannot say.” See supra ¶¶ 7-8, 103.
The Ordinance regulates conduct, not speech. It only requires Plaintiffs to
sell the same products equally to all customers, regardless of sexual
orientation. Plaintiffs retain control over the type of products they sell, their
style and design, and the specific messages written. Thus, if Plaintiffs
would not design a wedding invitation with a pink triangle or a rainbow
flag for an opposite-sex couple, the Ordinance cannot compel them to do so
for a same-sex couple. If they always include language in wedding
invitations for opposite-sex couples describing marriage as a union only
between men and women, they can insist on doing so in same-sex wedding
invitations without penalty. They can freely publish views opposing same-
sex marriages or say nothing at all about marriages. But because Plaintiffs
design and sell custom invitations expressing customers’—not Plaintiffs’—
requests for guests to “share the joy,” “celebrate,” or simply attend
weddings, Plaintiffs cannot refuse to do so for same-sex couples.
¶222 Relatedly, the majority mistakenly contends that requiring
Plaintiffs to sell custom wedding products intended for same-sex weddings
compels them to endorse same-sex marriages in violation of their beliefs.
71
BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
See supra ¶ 103. I disagree. A wedding invitation invites attendees to
celebrate a particular couple’s wedding; it does not endorse the idea of
opposite-sex marriages or same-sex marriages. See Janus v. Am. Fed’n of
State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463–64 (2018)
(“[c]ompelling individuals to mouth support for views they find
objectionable” generally violates First Amendment principles). The
meaning of these expressions—invitations to attend a wedding—does not
change as the sexual orientation of customers varies. And it defies common
sense to think that a wedding invitation expresses a commercial artist’s
endorsement of the subject wedding whether it involves, for example, a
same-sex couple, an opposite-sex couple in an abusive relationship, or a
loveless match. Cf. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,
547 U.S. 47, 64–65 (2006) (rejecting law schools’ argument that allowing the
military to recruit at the schools evidences the schools’ agreement with
military policies).
¶223 Second, the majority misapplies FERA’s “substantial burden”
requirement by failing to consider how the Ordinance itself—before
considering penalties for violations—substantially burdens Plaintiffs’
exercise of their beliefs. A.R.S. § 41-1493.01(B), (E) (providing that FERA is
triggered only if government laws, rules, or other actions “substantially
burden a person’s exercise of religion,” which excludes “trivial, technical or
de minimis infractions”). If the Ordinance’s proscription of discrimination
in public accommodation does not substantially burden Plaintiffs’ free
exercise of religion in the first instance, there is no need to consider the
potential penalties for violating the Ordinance. So how does requiring
Plaintiffs to sell the same type of wedding products to opposite-sex and
same-sex couples burden Plaintiffs’ exercise of their sincerely held religious
beliefs? And what makes any burden “substantial” and not “trivial,
technical or de minimis”? The majority does not say. Instead, it incorrectly
focuses only on the penalties for violating the Ordinance, finding a
substantial burden exists here because if Plaintiffs adhere to their sincerely
held religious beliefs and refuse to sell custom wedding invitations for
same-sex weddings, they could suffer “severe civil and criminal sanctions.”
See supra ¶ 135.
¶224 The majority’s misapplication of FERA’s “substantial
burden” requirement effectively eliminates it. Under the FERA paradigm
announced today, a claimant need only demonstrate that exercise of a
sincerely held religious belief conflicts with a law, which could result in a
penalty. The claimant has no need to demonstrate that the law itself
substantially burdens the claimant’s exercise of religion—a requirement
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
intended to remove trivial and de minimis infringements from FERA’s
protection. Thus, as the City predicts, a Phoenix taxi-cab owner with a
religious belief that women should only travel with men and who therefore
refuses to accept unaccompanied women riders can show a substantial
burden under FERA just by demonstrating the sincerity of his beliefs and
pointing to the potential penalties for violating the Ordinance. It is not
difficult to imagine similarly discriminatory scenarios involving race, color,
religion, sex, national origin, marital status, and disability, all of which the
Ordinance proscribes. See Phx., Ariz., City Code § 18-4(B).
¶225 In my view, whether a “substantial burden” on the exercise of
religion exists under FERA is a legal question for the courts rather than a
factual question determined by the sincerity of a person’s religious beliefs
and the existence of penalties for exercising those beliefs in a manner that
violates a law. See Pennsylvania v. President United States, 930 F.3d 543, 572
n. 28 (3d Cir. 2019); Real Alts., Inc. v. Sec’y Dep’t of Health and Human Servs.,
867 F.3d 338, 356 (3d Cir. 2017). Thus, “[w]hile the Supreme Court
reinforced in Hobby Lobby that [courts] should defer to the reasonableness of
the [RFRA claimant’s] religious beliefs, this does not bar our objective
evaluation of the nature of the claimed burden and substantiality of that
burden on the [claimant’s] religious exercise.” Real Alts., 867 F.3d at 356
(alterations in original and added) (citation omitted); see also Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014) (characterizing the RFRA
issue as whether the government imposed a substantial burden on the
parties to conduct business in accordance with their religious beliefs and
not whether those beliefs are reasonable); Mahoney v. Doe, 642 F.3d 1112,
1121 (D.C. Cir. 2011) (“[T]o make religious motivation the critical focus is .
. . to read out of RFRA the condition that only substantial burdens on the
exercise of religion trigger the compelling interest requirement.” (citation
omitted)).
¶226 Relying on Hobby Lobby, the majority asserts it cannot decide
whether the Ordinance itself substantially burdens Plaintiffs’ exercise of
their sincerely held religious belief that marriage occurs only between a
man and a woman because doing so would require the Court to decide the
reasonableness of Plaintiffs’ religious views, which is nonjusticiable. See
supra ¶¶ 136–40. I recognize that some language in Hobby Lobby supports
the majority’s position. See Hobby Lobby, 573 U.S. at 725 (stating that
plaintiffs “sincerely believe that providing the insurance coverage
demanded by the HHS regulations lies on the forbidden side of the line,
and it is not for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our ‘narrow function . . . in this context is to
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
determine’ whether the line drawn reflects ‘an honest conviction’”). But the
Court in Hobby Lobby did not address whether a sincere religious belief
alone would suffice under RFRA when a business is compelled by a public
accommodation law to provide goods and services equally to customers, as
opposed to funding morally objectionable acts, and it may well address the
issue differently in that context. Cf. Masterpiece Cakeshop, Ltd. v. Colo. Civil
Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (noting that while religious
objections to same-sex marriage are constitutionally 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”); id. (stating that although objecting clergy cannot be
compelled to perform a same-sex wedding ceremony, “if that exception
were not confined, then a long list of persons who provide goods and
services for marriages and weddings might refuse to do so for gay persons,
thus resulting in a community-wide stigma inconsistent with the history
and dynamics of civil rights laws that ensure equal access to goods,
services, and public accommodations”). Regardless, although instructive,
Hobby Lobby is not binding on our interpretation of FERA any more than
RFRA is binding on the City.
¶227 A “substantial burden” under FERA occurs only if the
Ordinance (1) compels claimants “to choose between following the precepts
of [their] religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of [their] religion in order to accept work, on the other
hand,” Sherbert v. Verner, 374 U.S. 398, 404 (1963), or (2) threatens claimants
with criminal sanctions unless they “perform acts undeniably at odds with
fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 406 U.S.
205, 218 (1972). A court’s inquiry should focus on “the nexus between
religious practice and religious tenet: whether the regulation at issue forced
plaintiffs to engage in conduct that their religion forbids or prevents them
from engaging in conduct their religion requires.” Mahoney, 642 F.3d at
1121 (interlineations accepted) (citation omitted).
¶228 Plaintiffs have not shown that the Ordinance substantially
burdens the exercise of their religious beliefs. The Ordinance does not
compel them to express approval of same-sex marriages, and they would
not be penalized for refusing to design wedding products expressing such
approval. See Sherbert, 374 U.S. at 404. Plaintiffs do not claim that
“fundamental tenets of their religious beliefs,” see Yoder, 406 U.S. at 218,
require them to refrain from selling custom wedding products (as opposed
to non-custom goods) related to same-sex weddings. See supra ¶ 160
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BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
(“Plaintiffs have never asserted that their faith precludes them from serving
same-sex couples, or that it requires them to refuse service to a customer
based on their sexual orientation.”). Nor does selling custom wedding
products for same-sex weddings make Plaintiffs participants in such
weddings as such items do not themselves “enabl[e] or facilitat[e]”
weddings any more than would the artistically created but non-custom
wedding products Plaintiffs willingly sell for use in same-sex weddings.
See Hobby Lobby, 573 U.S. at 724.
¶229 Selling custom wedding products for same-sex weddings
may “decrease[] the spirituality, the fervor, or the satisfaction” with which
Plaintiffs practice their religion. See Navajo Nation v. U.S. Forest Serv., 535
F.3d 1058, 1063 (9th Cir. 2008) (stating that such impacts do not constitute a
“substantial burden” under RFRA). But they have not shown that selling
the same custom items to customers for use in opposite-sex and same-sex
weddings forces Plaintiffs to choose between running their business and
following their faith, see Sherbert, 374 U.S. at 404, or is “undeniably at odds
with fundamental tenets of their religious beliefs.” See Yoder, 406 U.S. at
218.
¶230 Despite the majority’s unfounded assertion, see supra ¶¶ 141-
42, I fully embrace that Plaintiffs’ religious beliefs are sincere and
substantial. Nevertheless, deference to Plaintiffs’ sincere religious beliefs
should not require deference to their assertion that the Ordinance
substantially burdens their exercise of those beliefs. It is our role as jurists
to decide whether they proved FERA’s substantial burden requirement. On
this record, like the trial court, I conclude they have only shown a de
minimis burden and so FERA is not triggered. See § 41-1493.01(E).
¶231 Third, the majority ignores Plaintiffs’ request to be relieved
from designing other custom wedding-related items for same-sex
marriages, such as wedding invitations that do not include celebratory
messages, “save the date” notices, table numbers, menus, and “welcome”
signs. Samples of those items are in the record, so no reason exists not to
address them. See Appendix 2. The majority possibly ignores the request
because, for example, it is difficult to understand how a menu proclaiming
that guests are having beef tenderloin for dinner communicates anything
other than what meal guests will be served. That message remains the same
whether those guests are attending an opposite-sex wedding or a same-sex
wedding. And it is difficult to discern how designing and selling such items
substantially burdens Plaintiffs’ exercise of their religious beliefs in
violation of FERA. Putting aside whether requiring Plaintiffs to design
75
BRUSH & NIB ET AL. V. CITY OF PHOENIX
VICE CHIEF JUSTICE TIMMER , Dissenting
custom wedding invitations expressing messages of “celebration” or “joy”
for same-sex weddings is compelled speech and violates FERA, the
majority missteps by neglecting to tell Plaintiffs they must at least design
and sell wedding invitations lacking celebratory language and items like
table numbers, menus, and welcome signs equally for both same-sex
weddings and opposite-sex weddings. As a result, the City, Plaintiffs, like-
minded businesses, and the lower courts are left with incomplete guidance.
¶232 I greatly respect my colleagues in the majority. Regardless, in
my view, their analysis is flawed, it leaves issues unresolved, and, most
distressingly, it unduly hinders public accommodation laws seeking to
ensure that businesses serve persons equally regardless of their status,
including sexual orientation. I dissent.
76
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUDGE STARING , Dissenting
STARING, J., dissenting.
¶233 I respectfully dissent, joining Justice Bales’s dissent. I write
separately to briefly address the following points.
¶234 For “custom wedding invitations that are materially similar
to the invitations contained in the record,” supra ¶ 112, the majority finds
an exception to the general enforceability of public accommodation laws,
see Masterpiece Cakeshop, 138 S. Ct. at 1727 (importance of limiting
exceptions to public accommodation laws); Hurley, 515 U.S. at 572 (public
accommodation laws “do not, as a general matter, violate the First or
Fourteenth Amendments”). I am, however, very skeptical concerning the
effectiveness of the majority’s expressions of limitation. It is hardly difficult
to envision objections to providing public accommodations involving other
forms of artistic expression no less substantial than the custom wedding
invitations here. See Masterpiece Cakeshop, 138 S. Ct. at 1723 (“examples of
possibilities that seem all but endless”). Is there, for example, a meaningful
difference between drawings and lettering on cardstock and the same
drawings and lettering on a cake? Must the baker use the piping bag to
provide exactly the same message for the very same wedding the
calligrapher may refuse to employ the pen? Our state’s lower courts—one
of which I sit on—will struggle with limiting today’s holding when
confronted with circumstances that are not meaningfully distinct. This case
will sweep much more broadly than the majority expresses.
¶235 Among other things, I am concerned that, ironically, today’s
holding could be relied on to discriminate against individuals based on
their religion and religious beliefs, notwithstanding the fact that both
Arizona and Phoenix include religion as a basis for protection in their
public accommodation laws. See A.R.S. § 41-1442(A); PCC § 18-4(B). This
concern is partially premised on the fact that, based on the plain language
of A.R.S. § 41-1493.01(E), the holding in Hobby Lobby, and the axiomatic
constitutional proscription against government evaluation of the validity of
religious beliefs, see Masterpiece Cakeshop, 138 S. Ct. at 1731, the task of
showing a substantial burdening of sincerely held religious beliefs under
FERA may be accomplished with relative ease. In fact, in light of these
authorities, I generally agree with the majority’s conclusion—although not
with all facets of its analysis—that Brush & Nib has established that PCC
§ 18-4(B) substantially burdens its owners’ free exercise of religion. But the
ease with which a party may establish a substantial burden places a
premium on correctly analyzing the compelling state interest and least
restrictive means elements of FERA, particularly in a circumstance like
considering whether to grant an exception to public accommodation laws.
77
BRUSH & NIB ET AL. V. CITY OF PHOENIX
JUDGE STARING , Dissenting
Justice Bales correctly analyzes those elements in his dissent, which, as
noted, I join.
78
APPENDIX 1
App. 269
App. 272
APPENDIX 2