Brush & Nib Studio, LC, et al., Plaintiffs/Appellants/Cross-Appellees,
City of Phoenix, Defendant/Appellee/Cross-Appellant.
from the Superior Court in Maricopa County The Honorable
Karen A. Mullins, Judge No. CV2016-052251
of the Court of Appeals, Division One 244 Ariz. 59 (App.
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
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
W. Kellum, Center for Religious Expression, Memphis, TN and
Samuel J. Doncaster, Doncaster Law, PLLC, Phoenix, Attorneys
for Amicus Curiae Center for Religious Expression
Carden, Joshua Carden Law Firm, PC, Scottsdale Attorney for
Amicus Curiae Jewish Coalition for Religious Liberty
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.
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.
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.
E. Moll, The Law Firm of Bert E. Moll, P.C., Chandler,
Attorneys for Amicus Curiae Tyndale House Publishers, et al.
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.
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
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
Salvione, Greenspoon Marder LLP, Phoenix, Attorney for Amicus
Curiae ONE Community Media, LLC d/b/a ONE Community
JUSTICE GOULD authored the opinion of the Court, in which
JUSTICES BOLICK, LOPEZ, and PELANDER (Retired) joined.
JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES
(Retired), joined by VICE CHIEF JUSTICE TIMMER and JUDGE
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 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 that
the City of Phoenix (the "City") cannot apply its
Human Relations Ordinance (the "Ordinance") to
force Joanna Duka and Breanna Koski, owners of Brush &
Nib Studios, LC ("Brush & Nib"), to create
custom wedding invitations celebrating same-sex wedding
ceremonies in violation of their sincerely held religious
beliefs. Duka, Koski, and Brush & Nib
("Plaintiffs") have the right to refuse to express
such messages under article 2, section 6 of the Arizona
Constitution, as well as Arizona's Free Exercise of
Religion Act ("FERA"), A.R.S. § 41-1493.01.
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, 319 U.S. 624, 641-42 (1943). This
"freedom to differ is not limited to things that do not
matter much . . . [t]he test of its substance is the right to
differ as to things that touch the heart of the existing
order." Id. at 642.
Given this reality, the government "must not be allowed
to force persons to express a message contrary to their
deepest convictions." Natl Inst. of Family &
Life Advocates v. Becerra (NIFLA), 138 S.Ct. 2361, 2379
(2018) (Kennedy, J., concurring). Rather, Plaintiffs are
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 the
principles that are so fulfilling and so central to their
lives and faiths, and to their own deep aspirations to
continue the family structure they have long revered.
Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015).
Although this case is about freedom of speech and religion,
it suits the preferred analysis of our dissenting colleagues
to reframe it as one involving discriminatory conduct based
on a customer's sexual orientation. This
mischaracterization reflects neither Plaintiffs' position
nor our holding. Literally none of the examples of invidious,
status-based discrimination the dissent invokes, see
infra ¶ 217-18, would even be remotely permitted
under our holding today. Plaintiffs must, and they do, serve
all customers regardless of their sexual orientation.
However, by focusing solely on the anti-discrimination
purpose of the Ordinance, the dissent engages in a one-sided
analysis that effectively deprives Plaintiffs of their
fundamental right to express their beliefs. But no law,
including a public accommodations law, is immune from the
protections of free speech and free exercise. Rather,
"[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to
confess by word or act their faith therein."
Barnette, 319 U.S. at 642.
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.
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.)
Plaintiffs closely collaborate with each client in creating
their custom wedding invitations. The client provides the
names of the bride and groom, as well as the location and
date of the wedding. A client may also share preferences
regarding the colors and style of the invitation. Plaintiffs,
in turn, propose their artistic ideas for the invitation,
including colors, artwork, text, and phrasing. As part of
this process, Plaintiffs "frequently suggest the
particular words to use" in the invitation.
Once a client signs a contract for their services, Plaintiffs
design and create the invitations. Although a client may
ultimately reject Plaintiffs' work, the contract states
that Brush & Nib "retains complete artistic freedom
with respect to every aspect of the design's and
artwork's creation." The contract provides that the
client's requested design and artwork must
"express messages that promote [Brush & Nib's]
religious or artistic beliefs, or at least are not
inconsistent with these beliefs." Further, Brush &
Nib "reserves the right to terminate" the contract
if it subsequently determines, in its "sole discretion,
that the requested design or artwork communicates ideas or
messages . . . that are inconsistent with [Brush &
Nib's] religious or artistic beliefs."
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- 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
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
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. §
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 §
Section 18-4(B)(3) also makes it unlawful for a public
accommodation "to directly or indirectly display,
circulate, publicize or mail any advertisement, notice or
communication which states or implies that any facility or
service shall be refused or restricted because of" a
person's status. This subsection also prohibits displays
or publications that state or imply that based on a
person's status they "would be unwelcome,
objectionable, unacceptable, undesirable or not
Complaints regarding violations of the Ordinance are
initially handled by the City's Equal Opportunity
Department (the "Department"). PCC § 18-5(A).
If the Department determines that there is reasonable cause
to believe that a violation has occurred, it must first
attempt to resolve the violation though "informal
methods," such as conciliation and mediation.
Id. § 18-5(D)(2), (E), (G). However, if the
Department finds no reasonable cause, the complainant may
"request that the City Attorney file a criminal
complaint." Id. § 18-5(D)(1). Further, if
the business owner refuses to correct the violation through
informal means, the Department may refer the matter to the
City Attorney for criminal prosecution. Id. §
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.
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
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 and therefore had not
violated the Ordinance. The trial court denied the motion.
After an evidentiary hearing, the court denied
Plaintiffs' motion for a preliminary injunction.
Following the hearing, each party moved for summary judgment.
The trial court denied Plaintiffs' motion but granted the
City's motion. In its ruling, the court concluded that
the Ordinance did not violate Plaintiffs' rights to free
speech or free exercise of religion under FERA.
The court of appeals affirmed both the trial court's
denial of the City's motion to dismiss and its grant of
summary judgment in favor of the City. Brush & Nib
Studio, LC v. City of Phoenix, 244 Ariz. 59, 68-69
¶ 16, 78 ¶ 55 (App. 2018). The court held that the
Ordinance did not violate Plaintiffs' freedom of speech
or substantially burden their free exercise rights under
FERA. Id. at 72 ¶ 29, 73 ¶ 32, 77
¶ 49. However, the court struck down as
unconstitutionally vague the provision in § 18-4(B)(3)
prohibiting displays or publications stating or implying that
a person in a protected group "would be unwelcome,
objectionable, unacceptable, undesirable or not
solicited." Id. at 75-76 ¶¶ 43-45
& n.12. The court severed this provision from the
Ordinance, concluding that the remainder of § 18-4(B)(3)
"operates independently and is enforceable."
Id. at 76 ¶ 44.
We granted review because this case involves constitutional
and statutory issues of statewide importance. We have
jurisdiction pursuant to article 6, section 5(3) of the
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
We review the trial court's rulings on the motions for
summary judgment de novo. Jackson v. Eagle KMC
L.L.C., 245 Ariz. 544, 545 ¶ 7 (2019). We review
statutory, constitutional, and mixed questions of law and
fact de novo. City of Surprise v. Ariz. Corp.
Comm'n, 246 Ariz. 206, 210 ¶ 10 (2019)
(statutes); Gallardo v. State, 236 Ariz. 84, 87
¶ 8 (2014) (constitutional questions); Valley Med.
Specialists v. Farber, 194 Ariz. 363, 366 ¶ 10
(1999) (mixed questions of law and fact).
Plaintiffs concede Brush & Nib is a public accommodation
as defined by PCC § 18-3. However, they argue that the
Ordinance, as applied by the City, compels them to use their
artistic talents and personal expression to create custom
invitations celebrating same-sex weddings in violation of
their free speech rights under article 2, section 6 of the
Arizona Constitution and their free exercise rights under
FERA. Plaintiffs assert they will serve all customers,
regardless of their sexual orientation. However, they refuse
to create or express certain messages, regardless of
who makes the request. This includes creating custom
invitations that celebrate a same-sex marriage ceremony.
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,
244 Ariz. at 75-76 ¶¶ 43-45 & n.12. Thus, we
need not consider the general validity of the Ordinance or
the Ordinance's application to other individuals or
businesses that are not before this Court. See Boddie v.
Connecticut, 401 U.S. 371, 379 (1971) (stating that
"a statute or a rule may be held constitutionally
invalid as applied when it operates to deprive an individual
of a protected right although its general validity . . . is
beyond question," and that "in cases involving
religious freedom, free speech or assembly, this Court has
often held that a valid statute was unconstitutionally
applied in particular circumstances because it interfered
with an individual's exercise of those rights").
The City argues the trial court erred in denying its motion
to dismiss based on Plaintiffs' lack of standing.
Specifically, the City asserts that because Plaintiffs filed
this action "before any same-sex couple had requested
custom wedding products," their lawsuit is based on
speculative claims about how the Ordinance might apply to
hypothetical customer requests involving Plaintiffs'
entire range of custom products. Because none of these
abstract legal claims may ever arise, the City contends that
Plaintiffs' action challenging PCC § 18-4(B)(2) is
not ripe and should be dismissed.
We ordinarily review a trial court's ruling on a motion
to dismiss for an abuse of discretion, Legacy Foundation
Action Fund v. Citizens Clean Elections Commission, 243
Ariz. 404, 405 ¶ 6 (2018), but questions of standing and
ripeness are reviewed de novo, In re Estate of
Stewart, 230 Ariz. 480, 483-84 ¶ 11 (App. 2012)
(ripeness); Aegis of Ariz., L.L.C. v. Town of
Marana, 206 Ariz. 557, 562 ¶ 16 (App. 2003)
Although the Arizona Constitution does not have a case or
controversy requirement like the Federal Constitution, we do
apply the doctrines of standing and ripeness "as a
matter of sound judicial policy." Bennett v.
Napolitano, 206 Ariz. 520, 524 ¶ 16 (2003). Because
in this case the underlying concerns for standing and
ripeness are the same, we simply use the term
"ripeness" to apply to both doctrines here. See
Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d
1134, 1138 (9th Cir. 2000) ("The constitutional
component of the ripeness inquiry is often treated under the
rubric of standing and, in many cases, ripeness coincides
squarely with standing's injury in fact prong.");
Town of Gilbert v. Maricopa Cty., 213 Ariz. 241, 244
¶ 8 (App. 2006) (stating that "[r]ipeness is
analogous to standing").
Ripeness is a prudential doctrine that prevents a court from
rendering a premature decision on an issue that may never
arise. Winkle v. City of Tucson, 190 Ariz. 413, 415
(1997). Though federal justiciability jurisprudence is not
binding on Arizona courts, the factors federal courts use to
determine whether a case is justiciable are instructive.
See Bennett, 206 Ariz. at 525 ¶ 22. Thus, as a
general matter, if the plaintiff has incurred an injury, the
case is ripe. See Brewer v. Burns, 222 Ariz. 234,
238 ¶ 15 (2009). A case is also ripe if there is an
actual controversy between the parties. Estate of
Stewart, 230 Ariz. at 484 ¶ 12; see Planned
Parenthood Ctr. of Tucson, Inc. v. Marks, 17
Ariz.App. 308, 312-13 (1972) (stating that challengers of
statute forbidding abortions under certain circumstances were
not required to wait for criminal prosecution because that
statute allegedly chilled their constitutional rights and
therefore constituted an actual controversy).
Here, we need not speculate about how the Ordinance might
apply to customer requests for Plaintiffs' custom wedding
invitations. While it is true that, for most of
Plaintiffs' products, the factual record is not
sufficiently developed, that is not the case with respect to
the custom invitations. The record, as reflected by the
exhibits contained in Appendix 1, contains numerous examples
of Plaintiffs' custom wedding invitations. All of these
invitations contain detailed examples of Plaintiffs'
words, drawings, paintings, and original artwork, and Duka
and Koski have testified about their process of designing and
creating these custom invitations. Supra
¶¶ 9-14. Additionally, in their briefs,
the parties have analyzed, in detail, the legal claims and
arguments based on these custom invitations.
Finally, because Plaintiffs have specifically asked this
Court, as an alternative form of relief, to limit our
decision to custom wedding invitations that are materially
similar to the invitations contained in the record,
supra ¶ 31, we may limit our analysis and
holding to Plaintiffs' creation of this specific product.
See A.R.S. § 41-1493.01(D) (permitting FERA
claimants to "obtain appropriate relief against
a government" (emphasis added)); Califano v.
Yamasaki, 442 U.S. 682, 702 (1979) (stating that
"the scope of injunctive relief is dictated by the
extent of the violation established").
Thus, we conclude there is an actual case and controversy
that exists regarding Plaintiffs' creation of custom
wedding invitations that are materially similar to those in
the record. Duka and Koski face a real threat of being
prosecuted for violating the Ordinance by refusing to create
such invitations for a same-sex wedding. See Babbitt v.
United Farm Workers Natl Union, 442 U.S. 289, 298,
300-01 (1979) (finding standing despite the lack of a
concrete factual situation or criminal enforcement of the
statute against the challenger because the threshold issue,
whether the challengers' activity was protected as free
speech, was justiciable); see also A.R.S. §
12-1832 (authorizing any person "whose rights . . . are
affected by a . . . municipal ordinance" to seek
declaratory relief on the validity of the ordinance and
"obtain a declaration of rights, status or other legal
relations thereunder"). In contrast, Plaintiffs'
sweeping challenge to the Ordinance as applied to all of
Brush & Nib's remaining custom wedding products (as
reflected in Appendix 2) implicates a multitude of possible
factual scenarios too "imaginary" or
"speculative" to be ripe. Thomas, 220 F.3d
at 1139 (quoting Babbitt, 442 U.S. at 298).
Additionally, given the City's assertion that it can
apply the Ordinance to Plaintiffs' custom wedding
invitations, which includes the threat of criminal
prosecution and significant penalties, Plaintiffs have
suffered an injury through the chilling of their free speech
and free exercise rights. Virginia v. Am. Booksellers
Ass'n, 484 U.S. 383, 392-93 (1988) (holding there
was an injury to challenger's speech rights prior to a
challenged criminal statute becoming effective, where the
state never stated it would not enforce the statute).
Accordingly, we agree with the trial court and the court of
appeals that, to the extent Plaintiffs' action is based
on their custom wedding invitations, it is justiciable. We
therefore affirm the trial court and the court of
appeals' denial of the City's motion to dismiss as to
Plaintiffs' custom wedding invitations. Brush &
Nib, 244 Ariz. at 68-69 ¶ 16. However,
Plaintiffs' claims based on their remaining custom
products are not ripe, and we therefore reverse and grant the
City's motion to dismiss as to these products.
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
Generally, "[w]e will not reach a constitutional
question if a case can be fairly decided on
non[-]constitutional grounds." R.L. Augustine
Constr. Co., Inc. v. Peoria Unified Sch. Dist. No. 11,
188 Ariz. 368, 370 (1997). However, when constitutional and
non-constitutional issues are intertwined in a case, we must
address the constitutional issue. See State v.
Church, 109 Ariz. 39, 41 (1973); Katherine S. v.
Foreman, 197 Ariz. 371, 378 ¶ 16 (App. 1999)
(deciding constitutional issue because the issue was
"intertwined" with non-constitutional issue and
citing Church for the proposition that the
"fact that constitutional and non-constitutional issues
are interwoven justifies addressing all issues").
Here, because Plaintiffs' FERA claim is closely
intertwined with their free speech claim, we find it
necessary to address the constitutional issue in this case.
Katherine S., 197 Ariz. at 378 ¶ 16; see
also Watchtower Bible & Tract Soc'y of N.Y., Inc. v.
Village of Stratton, 536 U.S. 150, 160-69 (2002)
(discussing both freedom of speech and free exercise as the
plaintiffs exercise of both rights were affected by
challenged law); cf. Employment Div. v. Smith, 494
U.S. 872, 881-82 (1990) (collecting cases analyzing both
freedom of speech and free exercise); Masterpiece
Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138
S.Ct. 1719, 1740-48 (2018) (Thomas, J., concurring)
(analyzing free speech issue despite concluding that
challengers' free exercise rights were violated). The
legal and factual questions underlying Plaintiffs' free
speech and FERA claims require us to address the same basic
issues: (1) whether the Ordinance, as applied by the City,
compels Plaintiffs to express a message that violates their
religious convictions, and (2) if so, whether Plaintiffs have
a protected right to refuse to express that message in the
operation of their business.
In examining the text of Arizona's free speech clause, we
first observe that whereas the First Amendment is phrased as
a constraint on government, U.S. Const. amend. I
("Congress shall make no law . . . abridging the freedom
of speech."), our state's provision, by contrast, is
a guarantee of the individual right to "freely speak,
write, and publish," subject only to constraint for the
abuse of that right. See State v. Stummer, 219 Ariz.
137, 142 ¶ 14 (2008); see also id. ¶ 15
("The encompassing text of [a]rticle 2, [s]ection 6
indicates the Arizona framers' intent to rigorously
protect freedom of speech."). Thus, by its terms, the
Arizona Constitution provides broader protections for free
speech than the First Amendment. See, e.g., Coleman v.
City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012)
(stating that article 2, section 6 "is in some respects
more protective of free speech rights than the First
Amendment"); Stummer, 219 Ariz. at 143 ¶
17 ("We have also stated that [a]rticle 2, [s]ection 6
has 'greater scope than the [F]irst
[A]mendment.'" (citation omitted)); Mountain
States Tel. & Tel, Co. v. Ariz. Corp. Comm'n,
160 Ariz. 350, 356 (1989) ("[W]e apply here the broader
freedom of speech clause of the Arizona Constitution.").
However, although article 2, section 6 does, by its terms,
provide greater speech protection than the First Amendment,
we have rarely explored the contours of that right. Rather,
we have often relied on federal case law in addressing free
speech claims under the Arizona Constitution.
Stummer, 219 Ariz. at 142 ¶ 16 (stating that
"Arizona courts have had few opportunities to develop
Arizona's free speech jurisprudence," and in
"construing [a]rticle 2, [s]ection 6 have followed
federal interpretations of the United States
Constitution"); Mountain States, 160 Ariz. at
358 (looking to First Amendment precedent in determining that
a government regulation violated Arizona's free speech
clause). Here, while Plaintiffs generally assert
that their compelled speech claim, see infra Section
IV(A)-(D), is based on the Arizona Constitution, in arguing
that claim they rely almost exclusively on federal cases
construing the First Amendment.
This, however, presents no difficulty for us in resolving
Plaintiffs' compelled speech claim. Specifically, because
federal precedent conclusively resolves Plaintiffs'
claim, we can adequately address it under First Amendment
jurisprudence. And, because a violation of First Amendment
principles "necessarily implies" a violation of the
broader protections of article 2, section 6 of the Arizona
Constitution, by applying First Amendment jurisprudence, we
therefore address Plaintiffs' state claim.
Coleman, 230 Ariz. at 361 ¶ 36 n.5 (noting that
because plaintiffs had adequately stated a claim under the
First Amendment, this "necessarily implie[d] that they
ha[d] also stated claims under [a]rticle 2, [s]ection 6 of
Arizona's Constitution," and thus there was no need
to address whether Arizona's free speech clause
"might afford greater protection . . . than applies
under the First Amendment"); see also Mountain
States, 160 Ariz. at 358 ("As we have already
determined that 'narrow specificity' is a requirement
of a time, place, and manner regulation under the [F]irst
[A]mendment, we must hold the same under the more stringent
protections of the Arizona Constitution.").
The compelled speech doctrine is grounded on the principle
that freedom of speech "includes both the right to speak
freely and the right to refrain from speaking at all."
Wooley v. Maynard, 430 U.S. 705, 714 (1977); see
also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 573 (1995) (" [O]ne important
manifestation of the principle of free speech is that one who
chooses to speak may also decide what not to say."
(citation and internal quotation marks omitted)); Riley
v. Natl Fed'n of the Blind of N.C., 487 U.S. 781,
796-97 (1988) (stating that the First Amendment guarantee of
free speech necessarily includes the freedom of deciding
"both what to say and what not to say").
The compelled speech doctrine was first articulated in
Barnette. There, the Supreme Court addressed a state
law requiring a child who was a Jehovah's Witness to
salute the American flag. 319 U.S. at 626-29. For both the
child and his parents, saluting the flag violated their
religious beliefs. Id. at 629. The Court struck down
the law as violating the First Amendment, stating that the
government cannot compel any individual "to utter what
is not in his mind," id. at 634, and that all
citizens have autonomy over their "opinion[s] and
personal attitude[s]," id. at 631, 636; see
also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641
(1994) (stating that "[a]t the heart of the First
Amendment lies the principle that each person should decide
for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence," and that any
"[government action that . . . requires the utterance of
a particular message favored by the Government contravenes
this essential right").
There are, generally speaking, two lines of cases addressing
compelled speech. The first involves regulations requiring an
individual to express a prescribed government message. For
example, in Wooley, the Court held that a law was
unconstitutional because it forced a Jehovah's Witness,
in violation of his religious beliefs, to display the state
motto "Live Free or Die" on his license plate. 430
U.S. at 707-08, 717; see also NIFLA, 138 S.Ct. at
2368-69, 2378 (holding that plaintiffs were likely to succeed
in their claim that a state law unconstitutionally compelled
speech by requiring crisis pregnancy centers, which were
established to prevent abortions, to disseminate prescribed
government notices about public funding for abortion
A second line of compelled speech cases involves a government
regulation that compels a person to host or accommodate
another's message. See, e.g., Hurley, 515 U.S.
at 572-73, 581 (holding that a state public accommodations
law could not be used to compel a parade sponsor to host or
accommodate messages from parade participants the sponsor
found to be objectionable). This line of cases includes
government regulations compelling a person to engage in
self-censorship to avoid hosting another's message, as
well as regulations forcing a person to respond to
another's speech when they would prefer to remain silent.
See Pac. Gas & Elec. Co. v. Pub. Util.
Comm'n, 475 U.S. 1, 5-7, 16-17, 21 (1986) (plurality
opinion) (holding that a regulation requiring a
privately-owned utility to include, along with its monthly
bills, an editorial newsletter published by a consumer group
that was critical of its ratemaking practices violated the
utility's free speech rights because the utility might
"feel compelled to respond to arguments and allegations
made by [the consumer group]"); Miami Herald
Publ'g Co. v. Tornillo, 418 U.S. 241, 244, 256-58
(1974) (holding that a statute granting political candidates
the right to reply to unfavorable newspaper articles violated
the First Amendment because it forced newspapers to either
respond to the candidates' replies or engage in compelled
self-censorship by forgoing printing any articles criticizing
The fundamental principle underlying both lines of compelled
speech cases is that an individual has autonomy over his or
her speech and thus may not be forced to speak a message he
or she does not wish to say. Hurley is instructive
on this point. There, a private group of veterans (the
"Council") was granted a permit by the City of
Boston to sponsor a St. Patrick's Day parade.
Hurley, 515 U.S. at 560. However, the Council
refused to allow a group of gay, lesbian, and bisexual
descendants of Irish immigrants ("GLIB") to march
"behind a shamrock-strewn banner" stating,
"Irish American Gay, Lesbian and Bisexual Group of
Boston." Id. at 561, 570. The Supreme Judicial
Court of Massachusetts subsequently determined that the
Council's refusal violated the state public
accommodations law. Id. at 563-64.
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
The importance of protecting an individual's autonomy
over his or her speech was most recently addressed in
Janus v. American Federation of State, County, &
Municipal Employees, Council 31,138 S.Ct. 2448 (2018).
There, Janus, a nonunion employee, objected to paying
"agency fees" to a union. Id. at 2461-62.
The union claimed the agency fees were based on collective
bargaining activities benefiting both union and nonunion
employees. See id. at 2461. However, Janus objected
to paying any fees to the union because he disagreed with its