*1 IN THE
S UPREME C OURT OF THE S TATE OF A RIZONA B RUSH N IB S TUDIO , LC, ET AL . , Plaintiffs/Appellants/Cross-Appellees , V
C ITY OF P HOENIX , 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
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, 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
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.
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 (R ETIRED ) joined. JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES (R ETIRED ), 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: 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.
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. With these fundamental principles in mind, today we hold
¶2 that the City of Phoenix (the “City”) cannot apply its Humаn 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. 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. 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
,
force persons to express a message contrary to their deepest convictions.”
Nat’l Inst. of Family & Life Advocates v. Becerra
(
NIFLA
),
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 *5 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
,
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. 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. 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:
[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. 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. 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. 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.) *7 Plaintiffs closely collaborate with each client in creating their
¶12 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. 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 discrеtion, that the requested design or artwork communicates ideas or messages . . . that are inconsistent with [Brush & Nib’s] religious or artistic beliefs.” 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.” 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– *8 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.” As a tenet of their faith, Duka and Koski do not believe that
¶16 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 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). 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). Section 18-4(B)(3) also makes it unlawful for a public
accommodation “to directly or indirectly display, cirсulate, 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. *9 Complaints regarding violations of the Ordinance are initially
¶20 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. 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 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.” 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 *10 and therefore had not violated the Ordinance. The trial court denied the motion. After an evidentiary hearing, the court denied Plaintiffs’
¶24 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. The court of appeals affirmed both the trial court’s denial of
¶25
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
,
and statutory issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.
II. 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. We review the trial court’s rulings on the motions for
summary judgment de novo.
Jackson v. Eagle KMC L.L.C.
,
¶29 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. 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. 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. 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
,
III. The City argues the trial court erred in denying its motion to ¶33 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. 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
,
480, 483–84 ¶ 11 (App. 2012) (ripeness);
Aegis of Ariz., L.L.C. v. Town of
Marana
,
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
,
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
,
A case is also ripe if there is an actual controversy between the parties.
Estate of Stewart
,
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. 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
,
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
,
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
*14
“imaginary” or “speculative” to be ripe.
Thomas
,
¶40
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
,
¶41 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. 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”). 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
,
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
,
with their free speech claim, we find it necessary to address the
constitutional issue in this case.
Katherine S.
,
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
,
See, e.g.
,
Coleman v. City of Mesa
,
Corp. Comm’n , 160 Ariz. 350, 356 (1989) (“[W]e apply here the broader freedom of speech clause of the Arizona Constitution.”). 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
,
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
,
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
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
,
Barnette
. There, the Supreme Court addressed a state law requiring a child
who was a Jehovah’s Witness to salute the American flag.
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.
government regulation that compels a person to host or accommodate
another’s message.
See, e g
.,
Hurley
,
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
*18
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
,
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. 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)). 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
,
¶55 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
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
),
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
Pure speech is protected under both the Arizona Constitution
and the First Amendment.
Coleman
,
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
,
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”)). 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
,
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
,
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
,
conduct that is “sufficiently imbued with elements of communication.”
Texas v. Johnson
,
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.”
activity,” or pure speech, “is entitled to full First Amendment protection,”
but “conduct with an expressivе component” is only protected if it satisfies
the
Spence-Johnson
test.
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
Generally, there is no free speech protection for non-
expressive business activities.
See Coleman
,
game companies, do create and sell products that are protected free speech.
Brown
,
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.
,
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
,
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 Here, the First Amendment does not protect all of Plaintiffs’ ¶68 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. 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.
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. 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,
*24
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
,
an association of law schools and law faculties challenged the
constitutionality of the Solomon Amendment.
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 tо 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). 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
,
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. 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. 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
,
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. 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
,
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 protеction. 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
,
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
,
¶82 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. The City also claims that the invitations are the customer’s
¶83 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. 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. 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
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”). 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.”
Thus, we concluded that a tattoo is the protected speech of both the
customer and the artist, even when the artist uses a standard messagе or
design to create the tattoo.
Id.
at 358 ¶ 23, 360 ¶ 30;
see also Buehrle v. City of
Key West
,
¶87 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.
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
,
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. In a similar vein, the dissent claims that because Plaintiffs
operate Brush & Nib as a public accommodation, their free speech rights *30 must give way to the Ordinance. However, as we explain, infra ¶¶ 107, 153– 54, public accommodation laws are not immune to the First Amendment. The remaining arguments raised by the dissent are equally ¶91 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
,
[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
C. Level of Scrutiny
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.
,
¶95 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. First, “laws that by their terms distinguish favored speech
¶96
from disfavored speech on the basis of the ideas or views expressed are
content based.”
Turner Broad.
,
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. Second, content-neutral laws that regulate non-expressive
conduct, and not speech, are subject to the rational basis test.
See Coleman
,
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
,
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 violаtion *32 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). 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
,
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
,
prohibits businesses from denying access to equal goods and services to
certain protected groups. Thus, by its terms, the Ordinance is a facially
*33
content-neutral law that generally targets discriminatory conduct, not
speech.
See Hurley
,
¶103
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 writе 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
,
at 795.
D. Applying Strict Scrutiny 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. 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
,
However, that interest is not sufficiently overriding as to justify compelling Plaintiffs’ speech by commandeering their creation of custom wedding *34 invitations, each of which expresses a celebratory message, as the means of eradicating society of biases. 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
,
that the Ordinance, as applied to Plaintiffs’ creation of custom wedding invitations, furthers a compelling governmental interest. 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 оrganized 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- *35 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). 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.”
Gas & Elec. Co.
,
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
,
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 *36 most commercial products and services sold by public accommodations, are unique because they consist of protected pure speech. Nothing in our holding today allows a business to deny access
¶113
to goods or services to customers based on their sexual orientation or other
protected status.
See Telescope Media
,
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
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.
For example, in
Elane Photography, LLC v. Willock
,
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
,
doctrine did not apply to the owners because they operated their business *37 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. 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.
State v. Arlene’s Flowers, Inc.
,
and remanded
,
Arlene’s Flowers, Inc. v. Washington
, 138 S. Ct. 2671 (2018)
(mem.)
[1]
, and
Klein
,
¶119
v. Lindsey
,
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. 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. 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
,
at 424. In response to Smith , Congress enacted the Religious Freedom
¶123 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)). Although RFRA remains operative as to the federal
government,
see Guam v. Guerrero
,
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
,
of general applicability.
See Hardesty
,
A. FERA Analysis
FERA establishes a two-step process. First, the party raising
¶127
a free exercise claim must prove that: (1) their action or refusal to act is
mоtivated 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
,
1. Religious Belief
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
,
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
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
,
3. Substantial Burden 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
,
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 *42 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))). 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. 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
,
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).
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 nuisаnce provision to simply shut down Duka and Koski’s business altogether. See id. § 1-5. 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. 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. 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
*44
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
,
eliminate the substantial burden element from the FERA analysis. Rather,
we follow the well-established rule that courts may not, under the guise of
conduсting a substantial burden analysis, examine the reasonableness of a
person’s belief.
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. *45 The dissent also asserts that Plaintiffs have failed to identify
¶142 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. 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
,
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 . 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. *46 Accordingly, as applied to Plaintiffs’ custom wedding
¶146 invitations, the Ordinance substantially burdens the free exercise of Duka and Koski’s religious beliefs.
B. City’s Burden Because Plaintiffs have satisfied their burden under FERA, ¶147 the City bears the burden of showing that the Ordinаnce (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. 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. 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
,
at 729 n.37. 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 *47 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. 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. 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. S ee 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 impossiblе, to conceive of any exemption that could satisfy the test. 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.
,
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
,
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
,
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
,
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. 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 . . . .”). 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 *50 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). 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. 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 аddress 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
,
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
,
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 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
,
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
*52
. 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
,
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. 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.
J USTICE B OLICK , Concurring BOLICK, J., concurring. I join the Court’s analysis and write separately to further
¶168 examine the state constitutional provision under which this challenge was brought. 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
,
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
,
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. 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
J USTICE B OLICK , Concurring
of individual liberties.
Petersen v. City of Mesa
,
Robins
,
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)). 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
,
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
,
587, 595 (1990);
Boswell v. Phx. Newspapers, Inc.
, 152 Ariz. 9, 12 (1986);
McElhaney Cattle Co. v. Smith
,
J USTICE B OLICK , Concurring
States
,
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
,
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, sectiоn 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. 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
J USTICE B OLICK , 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
,
2000). The City has not suggested any way, such as libel, in which Plaintiffs
have abused that right,
see, e.g.
,
Stummer
,
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. 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,
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 cаlligrapher 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
J USTICE B OLICK , 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. *58 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , Dissenting BALES, J. (Ret.), joined by TIMMER, V.C.J., and STARING, J., dissenting. Can a business selling custom wedding invitations and other
¶180 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. 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. 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. 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 *59 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE
S TARING , 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
,
A. Our analysis should begin by recognizing how this case ¶184 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
,
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
,
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.
,
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 *60 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , 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. Brush & Nib and its owners seek to refuse to provide services
¶188
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
,
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. 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). 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 *61 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , 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. We should instead recognize that the City’s interest in this
¶192
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
,
B. 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. 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
,
“have followed . . . interpretations of the United States Constitution.”
State
v. Stummer
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE
S TARING , Dissenting
state constitution.
See State v. Jean
,
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 applicаble laws.
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
,
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. *63 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , Dissenting 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)). 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[].”
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 . 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
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE
S TARING , Dissenting
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
,
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.
,
King & Spalding
,
Civil Rights Comm’n
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , 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.”). 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 thе 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. 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). 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
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , Dissenting a compelling governmental interest and is the least restrictive means of furthering that interest. See id. On this record, there is no dispute that Brush & Nib’s owners,
¶206 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. 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.
,
2008) (adopting similar standard for federal Religious Freedom Restoration Act (RFRA)). 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. 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; *67 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE
S TARING , Dissenting
nor was such reasoning adopted by the court of appeals.
See Brush & Nib
,
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
,
Arlene’s Flowers, Inc.
,
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
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , Dissenting 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
,
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.
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
,
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE
S TARING , Dissenting
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
,
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. 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 *70 ET
J USTICE B ALES (R .), joined by V ICE C HIEF J USTICE T IMMER AND J UDGE S TARING , 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. 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). 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. 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.
V ICE C HIEF J USTICE T IMMER , Dissenting TIMMER, V.C.J., dissenting. 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
,
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. 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.
V ICE C HIEF J USTICE T IMMER , 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.
,
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. 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
V ICE C HIEF J USTICE T IMMER , 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 demоnstrating 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). 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
,
Hobby Lobby Stores, Inc.
,
. . to read out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement.” (citation omitted)). 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
V ICE C HIEF J USTICE T IMMER , 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. 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
,
205, 218 (1972). A court’s inquiry should focus on “thе 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). 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
V ICE C HIEF J USTICE T IMMER , 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
,
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). 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
V ICE C HIEF J USTICE T IMMER , 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. 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.
J UDGE S TARING , Dissenting STARING, J., dissenting. I respectfully dissent, joining Justice Bales’s dissent. I write
separately to briefly address the following points. 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
,
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.
J UDGE S TARING , Dissenting Justice Bales correctly analyzes those elements in his dissent, which, as noted, I join.
APPENDIX 1 *86 App. 269
App. 272
APPENDIX 2
Notes
[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
,
[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).