Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brush & Nib Studio, LC v. City of Phoenix

Supreme Court of Arizona

September 16, 2019

Brush & Nib Studio, LC, et al., Plaintiffs/Appellants/Cross-Appellees,
City of Phoenix, Defendant/Appellee/Cross-Appellant.

          Appeal from the Superior Court in Maricopa County The Honorable Karen A. Mullins, Judge No. CV2016-052251

         Opinion of the Court of Appeals, Division One 244 Ariz. 59 (App. 2018)

          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 (Retired) joined. JUSTICE BOLICK filed a concurring opinion. JUSTICE BALES (Retired), joined by VICE CHIEF JUSTICE TIMMER and JUDGE STARING, [*] dissented.


          GOULD, JUSTICE.

         ¶1 The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person's home or church, or private conversations with like- minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person's sincere religious beliefs.

         ¶2 With these fundamental principles in mind, today we hold that the City of Phoenix (the "City") cannot apply its Human Relations Ordinance (the "Ordinance") to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC ("Brush & Nib"), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib ("Plaintiffs") have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona's Free Exercise of Religion Act ("FERA"), A.R.S. § 41-1493.01.

         ¶3 Our holding is limited to Plaintiffs' creation of custom wedding invitations that are materially similar to those contained in the record. See Appendix 1. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs' business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs' creation of other wedding products may be exempt from the Ordinance. See Appendix 2.

         ¶4 Duka and Koski's beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, "[w]e can have intellectual individualism" and "rich cultural diversities . . . only at the price" of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-42 (1943). This "freedom to differ is not limited to things that do not matter much . . . [t]he test of its substance is the right to differ as to things that touch the heart of the existing order." Id. at 642.

         ¶5 Given this reality, the government "must not be allowed to force persons to express a message contrary to their deepest convictions." Natl Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S.Ct. 2361, 2379 (2018) (Kennedy, J., concurring). Rather, Plaintiffs are entitled to

continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Obergefell v. Hodges, 135 S.Ct. 2584, 2607 (2015).

         ¶6 Although this case is about freedom of speech and religion, it suits the preferred analysis of our dissenting colleagues to reframe it as one involving discriminatory conduct based on a customer's sexual orientation. This mischaracterization reflects neither Plaintiffs' position nor our holding. Literally none of the examples of invidious, status-based discrimination the dissent invokes, see infra ¶ 217-18, would even be remotely permitted under our holding today. Plaintiffs must, and they do, serve all customers regardless of their sexual orientation. However, by focusing solely on the anti-discrimination purpose of the Ordinance, the dissent engages in a one-sided analysis that effectively deprives Plaintiffs of their fundamental right to express their beliefs. But no law, including a public accommodations law, is immune from the protections of free speech and free exercise. Rather, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Barnette, 319 U.S. at 642.

         ¶7 The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs' right to express their beliefs about same-sex marriage by telling them what they can and cannot say. And to justify this action, both the City and the primary dissent claim that if we dare to allow Plaintiffs to express their beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the Old South.

         ¶8 But casting Plaintiffs' free speech and exercise rights in such a cynical light does grave harm to a society. As Justice Jackson observed in Barnette, "[s]truggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men," but, inevitably "those bent on its accomplishment must resort to an ever-increasing severity." Barnette, 319 U.S. at 640. We would be wise to heed his warning about government efforts to compel uniformity of beliefs and ideas:

[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.


         ¶9 Duka and Koski are the sole member-owners of Brush & Nib, a for-profit limited liability company. Duka and Koski operate Brush & Nib as an "art studio" specializing in creating custom artwork for weddings, events, special occasions, home décor, and businesses. Duka and Koski work out of Koski's home and personally design and create their products. In addition to custom-designed products, Brush & Nib sells some pre-made products. Duka and Koski do not maintain Brush & Nib as a brick-and-mortar store but instead sell their products online through various media platforms.

         ¶10 Apart from Plaintiffs' custom wedding invitations, the record contains only a few examples of their products. In contrast, there are numerous examples of Plaintiffs' custom wedding invitations. See Appendix 1. All these custom invitations feature Plaintiffs' hand-drawn images and paintings, custom lettering and calligraphy, as well as their original artwork. Additionally, the names of a female bride and a male groom are prominently displayed in every custom invitation.

         ¶11 The City concedes that "[a]ll the custom wedding invitations Brush & Nib creates include language that is celebratory of the wedding." Specifically, Plaintiffs create and write celebratory statements in every custom invitation, including such statements as "[the couple or their parents] request the pleasure of your company at the celebration of their marriage," "request the honor of your presence," "invite you to the celebration of their marriage," or "invite you to share in the joy of their marriage." (Emphasis added.)

         ¶12 Plaintiffs closely collaborate with each client in creating their custom wedding invitations. The client provides the names of the bride and groom, as well as the location and date of the wedding. A client may also share preferences regarding the colors and style of the invitation. Plaintiffs, in turn, propose their artistic ideas for the invitation, including colors, artwork, text, and phrasing. As part of this process, Plaintiffs "frequently suggest the particular words to use" in the invitation.

         ¶13 Once a client signs a contract for their services, Plaintiffs design and create the invitations. Although a client may ultimately reject Plaintiffs' work, the contract states that Brush & Nib "retains complete artistic freedom with respect to every aspect of the design's and artwork's creation." The contract provides that the client's requested design and artwork must "express[] messages that promote [Brush & Nib's] religious or artistic beliefs, or at least are not inconsistent with these beliefs." Further, Brush & Nib "reserves the right to terminate" the contract if it subsequently determines, in its "sole discretion, that the requested design or artwork communicates ideas or messages . . . that are inconsistent with [Brush & Nib's] religious or artistic beliefs."

         ¶14 Duka and Koski are Christians. Based on their faith, they do not believe they can do anything, either in their business or personal lives, that "violates their religious beliefs or dishonors God." Thus, in addition to making a profit, Duka and Koski seek to operate Brush & Nib consistent with their religious beliefs. For example, Brush & Nib's Operating Agreement (the "Agreement") states that Brush & Nib is a "for-profit limited liability company" that "is owned solely by Christian artists who operate [Brush & Nib] as an extension of and in accordance with their artistic and religious beliefs." The Agreement sets forth Brush & Nib's "Core Beliefs" and provides that "Brush & Nib is unwilling to use its artistic process" or "create art" that contradicts its religious "beliefs and message." The Agreement further provides that Brush & Nib "reserves the right to deny any request for action or artwork that violates its artistic and religious beliefs." As examples of such objectionable artwork, the Agreement states that Brush & Nib will refuse to create "custom artwork that communicates ideas or messages . . . that contradict biblical truth, demean others, endorse racism, incite violence, or promote any marriage besides marriage between one man and one woman, such as same-sex marriage."

         ¶15 Duka and Koski hold traditional Christian beliefs about marriage. They believe that "God created two distinct genders in His image," and that only a man and a woman can be joined in marriage. This belief is based on the Bible; thus, for example, Plaintiffs cite Matthew 19:4- 5, which states that God "made them male and female, and said, [f]or this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one." (Internal quotation marks omitted.) Duka testified that she believes that marriage reflects God's glory and presents a picture of "Christ and his love for the church."

         ¶16 As a tenet of their faith, Duka and Koski do not believe that two people of the same sex can be married. Plaintiffs stress that they will create custom artwork for, and sell pre-made artwork to, any customers regardless of their sexual orientation. However, they believe that creating a custom wedding invitation that conveys a message celebrating same-sex marriage, for any customer regardless of sexual orientation, violates their sincerely held religious convictions.

         A. The Ordinance

         ¶17 The City of Phoenix's Ordinance, as amended in 2013, prohibits public accommodations from discriminating against persons based on their status in a "protected" group, which includes a person's sexual orientation. Phx., Ariz., City Code ("PCC") § 18-4(B). In contrast, neither Arizona's public accommodations law nor the federal civil rights public accommodations statute lists sexual orientation as a legally protected status. See A.R.S. § 41-1442(A); 42 U.S.C. § 2000a(a).

         ¶18 Under the Ordinance, public accommodations include "all establishments offering their services, facilities or goods to or soliciting patronage from the members of the general public." PCC § 18-3. Section 18-4(B)(2) makes it unlawful for any business operating as a public accommodation to "directly or indirectly[] refuse, withhold from, or deny to any person . . . accommodations, advantages, facilities or privileges . . . because of" a person's status in a protected group. Additionally, the Ordinance forbids such businesses from making any "distinction . . . with respect to any person based on" status with respect to "the price or quality of any item, goods or services offered." PCC § 18-4(B)(2).

         ¶19 Section 18-4(B)(3) also makes it unlawful for a public accommodation "to directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of" a person's status. This subsection also prohibits displays or publications that state or imply that based on a person's status they "would be unwelcome, objectionable, unacceptable, undesirable or not solicited." Id.

         ¶20 Complaints regarding violations of the Ordinance are initially handled by the City's Equal Opportunity Department (the "Department"). PCC § 18-5(A). If the Department determines that there is reasonable cause to believe that a violation has occurred, it must first attempt to resolve the violation though "informal methods," such as conciliation and mediation. Id. § 18-5(D)(2), (E), (G). However, if the Department finds no reasonable cause, the complainant may "request that the City Attorney file a criminal complaint." Id. § 18-5(D)(1). Further, if the business owner refuses to correct the violation through informal means, the Department may refer the matter to the City Attorney for criminal prosecution. Id. § 18-6.

         ¶21 Pursuant to § 18-7(A), any person convicted of violating the Ordinance is guilty of a class 1 misdemeanor. As punishment, a violator may be ordered to serve up to six months in jail or three years' probation, or pay a maximum fine of $2, 500, or any combination of jail, fines, and probation. Id. § 1-5. Section 1-5 also provides that "[e]ach day any violation" continues "shall constitute a separate offense." Continuing violations may also "be deemed a public nuisance" and "abated as provided by law." Id.

         B. Procedural Background

         ¶22 To date, the City has not cited Plaintiffs for violating the Ordinance. Plaintiffs filed this action to enjoin the City from enforcing the Ordinance against them in the future, as well as to obtain a declaration that the Ordinance violates their right to free speech under article 2, section 6 of the Arizona Constitution, and their free exercise right under FERA, § 41-1493.01. As part of their requested declaratory relief, Plaintiffs request an order allowing them to post a proposed statement (the "Statement") on Brush & Nib's website announcing their intention to refuse requests to create custom artwork for same-sex weddings. The Statement explains that Brush & Nib will not "create any artwork that violates our vision as defined by our religious and artistic beliefs and identity." It lists several examples of objectionable artwork, including artwork promoting businesses that "exploit women or sexually objectify the female body," exploits the environment, or "any custom artwork that demeans others, endorses racism, incites violence, contradicts our Christian faith, or promotes any marriage except marriage between one man and one woman," such as "wedding invitations[] for same-sex wedding ceremonies."

         ¶23 The City filed a motion to dismiss, arguing that Plaintiffs lacked standing to bring this action. Specifically, the City asserted that Plaintiffs had not yet refused to create any products for a same-sex wedding and therefore had not violated the Ordinance. The trial court denied the motion.

         ¶24 After an evidentiary hearing, the court denied Plaintiffs' motion for a preliminary injunction. Following the hearing, each party moved for summary judgment. The trial court denied Plaintiffs' motion but granted the City's motion. In its ruling, the court concluded that the Ordinance did not violate Plaintiffs' rights to free speech or free exercise of religion under FERA.

         ¶25 The court of appeals affirmed both the trial court's denial of the City's motion to dismiss and its grant of summary judgment in favor of the City. Brush & Nib Studio, LC v. City of Phoenix, 244 Ariz. 59, 68-69 ¶ 16, 78 ¶ 55 (App. 2018). The court held that the Ordinance did not violate Plaintiffs' freedom of speech or substantially burden their free exercise rights under FERA. Id. at 72 ¶ 29, 73 ¶ 32, 77 ¶ 49. However, the court struck down as unconstitutionally vague the provision in § 18-4(B)(3) prohibiting displays or publications stating or implying that a person in a protected group "would be unwelcome, objectionable, unacceptable, undesirable or not solicited." Id. at 75-76 ¶¶ 43-45 & n.12. The court severed this provision from the Ordinance, concluding that the remainder of § 18-4(B)(3) "operates independently and is enforceable." Id. at 76 ¶ 44.

         ¶26 We granted review because this case involves constitutional and statutory issues of statewide importance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution.


         ¶27 Plaintiffs contest the trial court's denial of their motion for a preliminary injunction, as well as the court's denial of their motion for summary judgment and grant of summary judgment in favor of the City. However, we need not review the trial court's denial of Plaintiffs' motion for a preliminary injunction because its rulings on the parties' summary judgment motions are dispositive here.

         ¶28 We review the trial court's rulings on the motions for summary judgment de novo. Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545 ¶ 7 (2019). We review statutory, constitutional, and mixed questions of law and fact de novo. City of Surprise v. Ariz. Corp. Comm'n, 246 Ariz. 206, 210 ¶ 10 (2019) (statutes); Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014) (constitutional questions); Valley Med. Specialists v. Farber, 194 Ariz. 363, 366 ¶ 10 (1999) (mixed questions of law and fact).

         ¶29 Plaintiffs concede Brush & Nib is a public accommodation as defined by PCC § 18-3. However, they argue that the Ordinance, as applied by the City, compels them to use their artistic talents and personal expression to create custom invitations celebrating same-sex weddings in violation of their free speech rights under article 2, section 6 of the Arizona Constitution and their free exercise rights under FERA. Plaintiffs assert they will serve all customers, regardless of their sexual orientation. However, they refuse to create or express certain messages, regardless of who makes the request. This includes creating custom invitations that celebrate a same-sex marriage ceremony.

         ¶30 The City concedes that the Ordinance does not require Duka and Koski to express any messages condoning or celebrating same-sex marriage. Thus, for example, the City agrees that the Ordinance does not require Duka and Koski to create a custom invitation containing the statement, "support gay marriage," or symbols, such as the equal sign of the Human Rights Campaign, that would be recognized by a third-party observer as expressly endorsing same-sex marriage. The City argues, however, that the Ordinance, as applied to Plaintiffs' custom wedding invitations, regulates conduct, not speech. Thus, by refusing to create or sell such invitations for use in same-sex weddings, the City contends that Plaintiffs are engaging in discriminatory conduct prohibited by the Ordinance.

         ¶31 For their remedy, Plaintiffs generally seek relief permitting them to (1) refuse requests to create custom-made wedding products for same-sex weddings, and (2) post their Statement regarding their intention to refuse such services. Alternatively, Plaintiffs seek partial relief limited to their creation of custom wedding invitations that are "materially similar" to the invitations contained in the record.

         ¶32 Plaintiffs originally raised both facial and as-applied challenges to the constitutionality of the Ordinance. However, because Plaintiffs' facial challenge was limited to the provision struck down by the court of appeals (a ruling neither party challenges here), only Plaintiffs' as-applied challenge remains. See Brush & Nib, 244 Ariz. at 75-76 ¶¶ 43-45 & n.12. Thus, we need not consider the general validity of the Ordinance or the Ordinance's application to other individuals or businesses that are not before this Court. See Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (stating that "a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity . . . is beyond question," and that "in cases involving religious freedom, free speech or assembly, this Court has often held that a valid statute was unconstitutionally applied in particular circumstances because it interfered with an individual's exercise of those rights").


         ¶33 The City argues the trial court erred in denying its motion to dismiss based on Plaintiffs' lack of standing. Specifically, the City asserts that because Plaintiffs filed this action "before any same-sex couple had requested custom wedding products," their lawsuit is based on speculative claims about how the Ordinance might apply to hypothetical customer requests involving Plaintiffs' entire range of custom products. Because none of these abstract legal claims may ever arise, the City contends that Plaintiffs' action challenging PCC § 18-4(B)(2) is not ripe and should be dismissed.

         ¶34 We ordinarily review a trial court's ruling on a motion to dismiss for an abuse of discretion, Legacy Foundation Action Fund v. Citizens Clean Elections Commission, 243 Ariz. 404, 405 ¶ 6 (2018), but questions of standing and ripeness are reviewed de novo, In re Estate of Stewart, 230 Ariz. 480, 483-84 ¶ 11 (App. 2012) (ripeness); Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 562 ¶ 16 (App. 2003) (standing).

         ¶35 Although the Arizona Constitution does not have a case or controversy requirement like the Federal Constitution, we do apply the doctrines of standing and ripeness "as a matter of sound judicial policy." Bennett v. Napolitano, 206 Ariz. 520, 524 ¶ 16 (2003). Because in this case the underlying concerns for standing and ripeness are the same, we simply use the term "ripeness" to apply to both doctrines here. See Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) ("The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong."); Town of Gilbert v. Maricopa Cty., 213 Ariz. 241, 244 ¶ 8 (App. 2006) (stating that "[r]ipeness is analogous to standing").

         ¶36 Ripeness is a prudential doctrine that prevents a court from rendering a premature decision on an issue that may never arise. Winkle v. City of Tucson, 190 Ariz. 413, 415 (1997). Though federal justiciability jurisprudence is not binding on Arizona courts, the factors federal courts use to determine whether a case is justiciable are instructive. See Bennett, 206 Ariz. at 525 ¶ 22. Thus, as a general matter, if the plaintiff has incurred an injury, the case is ripe. See Brewer v. Burns, 222 Ariz. 234, 238 ¶ 15 (2009). A case is also ripe if there is an actual controversy between the parties. Estate of Stewart, 230 Ariz. at 484 ¶ 12; see Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17 Ariz.App. 308, 312-13 (1972) (stating that challengers of statute forbidding abortions under certain circumstances were not required to wait for criminal prosecution because that statute allegedly chilled their constitutional rights and therefore constituted an actual controversy).

         ¶37 Here, we need not speculate about how the Ordinance might apply to customer requests for Plaintiffs' custom wedding invitations. While it is true that, for most of Plaintiffs' products, the factual record is not sufficiently developed, that is not the case with respect to the custom invitations. The record, as reflected by the exhibits contained in Appendix 1, contains numerous examples of Plaintiffs' custom wedding invitations. All of these invitations contain detailed examples of Plaintiffs' words, drawings, paintings, and original artwork, and Duka and Koski have testified about their process of designing and creating these custom invitations. Supra ¶¶ 9-14. Additionally, in their briefs, the parties have analyzed, in detail, the legal claims and arguments based on these custom invitations.

         ¶38 Finally, because Plaintiffs have specifically asked this Court, as an alternative form of relief, to limit our decision to custom wedding invitations that are materially similar to the invitations contained in the record, supra ¶ 31, we may limit our analysis and holding to Plaintiffs' creation of this specific product. See A.R.S. § 41-1493.01(D) (permitting FERA claimants to "obtain appropriate relief against a government" (emphasis added)); Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (stating that "the scope of injunctive relief is dictated by the extent of the violation established").

         ¶39 Thus, we conclude there is an actual case and controversy that exists regarding Plaintiffs' creation of custom wedding invitations that are materially similar to those in the record. Duka and Koski face a real threat of being prosecuted for violating the Ordinance by refusing to create such invitations for a same-sex wedding. See Babbitt v. United Farm Workers 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).

         ¶40 Additionally, given the City's assertion that it can apply the Ordinance to Plaintiffs' custom wedding invitations, which includes the threat of criminal prosecution and significant penalties, Plaintiffs have suffered an injury through the chilling of their free speech and free exercise rights. Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 392-93 (1988) (holding there was an injury to challenger's speech rights prior to a challenged criminal statute becoming effective, where the state never stated it would not enforce the statute).

         ¶41 Accordingly, we agree with the trial court and the court of appeals that, to the extent Plaintiffs' action is based on their custom wedding invitations, it is justiciable. We therefore affirm the trial court and the court of appeals' denial of the City's motion to dismiss as to Plaintiffs' custom wedding invitations. Brush & Nib, 244 Ariz. at 68-69 ¶ 16. However, Plaintiffs' claims based on their remaining custom products are not ripe, and we therefore reverse and grant the City's motion to dismiss as to these products.


         ¶42 Plaintiffs allege that the Ordinance, as applied by the City, compels them to create custom wedding invitations celebrating same-sex marriage in violation of Arizona's free speech clause. See Ariz. Const. art. 2, § 6 (stating that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right").

         ¶43 Generally, "[w]e will not reach a constitutional question if a case can be fairly decided on non[-]constitutional grounds." R.L. Augustine Constr. Co., Inc. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368, 370 (1997). However, when constitutional and non-constitutional issues are intertwined in a case, we must address the constitutional issue. See State v. Church, 109 Ariz. 39, 41 (1973); Katherine S. v. Foreman, 197 Ariz. 371, 378 ¶ 16 (App. 1999) (deciding constitutional issue because the issue was "intertwined" with non-constitutional issue and citing Church for the proposition that the "fact that constitutional and non-constitutional issues are interwoven justifies addressing all issues").

         ¶44 Here, because Plaintiffs' FERA claim is closely intertwined with their free speech claim, we find it necessary to address the constitutional issue in this case. Katherine S., 197 Ariz. at 378 ¶ 16; see also Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 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.

         ¶45 In examining the text of Arizona's free speech clause, we first observe that whereas the First Amendment is phrased as a constraint on government, U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom of speech."), our state's provision, by contrast, is a guarantee of the individual right to "freely speak, write, and publish," subject only to constraint for the abuse of that right. See State v. Stummer, 219 Ariz. 137, 142 ¶ 14 (2008); see also id. ¶ 15 ("The encompassing text of [a]rticle 2, [s]ection 6 indicates the Arizona framers' intent to rigorously protect freedom of speech."). Thus, by its terms, the Arizona Constitution provides broader protections for free speech than the First Amendment. See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (stating that article 2, section 6 "is in some respects more protective of free speech rights than the First Amendment"); Stummer, 219 Ariz. at 143 ¶ 17 ("We have also stated that [a]rticle 2, [s]ection 6 has 'greater scope than the [F]irst [A]mendment.'" (citation omitted)); Mountain States Tel. & Tel, Co. v. Ariz. Corp. Comm'n, 160 Ariz. 350, 356 (1989) ("[W]e apply here the broader freedom of speech clause of the Arizona Constitution.").

         ¶46 However, although article 2, section 6 does, by its terms, provide greater speech protection than the First Amendment, we have rarely explored the contours of that right. Rather, we have often relied on federal case law in addressing free speech claims under the Arizona Constitution. Stummer, 219 Ariz. at 142 ¶ 16 (stating that "Arizona courts have had few opportunities to develop Arizona's free speech jurisprudence," and in "construing [a]rticle 2, [s]ection 6 have followed federal interpretations of the United States Constitution"); Mountain States, 160 Ariz. at 358 (looking to First Amendment precedent in determining that a government regulation violated Arizona's free speech clause). Here, while Plaintiffs generally assert that their compelled speech claim, see infra Section IV(A)-(D), is based on the Arizona Constitution, in arguing that claim they rely almost exclusively on federal cases construing the First Amendment.

         ¶47 This, however, presents no difficulty for us in resolving Plaintiffs' compelled speech claim. Specifically, because federal precedent conclusively resolves Plaintiffs' claim, we can adequately address it under First Amendment jurisprudence. And, because a violation of First Amendment principles "necessarily implies" a violation of the broader protections of article 2, section 6 of the Arizona Constitution, by applying First Amendment jurisprudence, we therefore address Plaintiffs' state claim. Coleman, 230 Ariz. at 361 ¶ 36 n.5 (noting that because plaintiffs had adequately stated a claim under the First Amendment, this "necessarily implie[d] that they ha[d] also stated claims under [a]rticle 2, [s]ection 6 of Arizona's Constitution," and thus there was no need to address whether Arizona's free speech clause "might afford greater protection . . . than applies under the First Amendment"); see also Mountain States, 160 Ariz. at 358 ("As we have already determined that 'narrow specificity' is a requirement of a time, place, and manner regulation under the [F]irst [A]mendment, we must hold the same under the more stringent protections of the Arizona Constitution.").

         A. Compelled Speech

         ¶48 The compelled speech doctrine is grounded on the principle that freedom of speech "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995) (" [O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say." (citation and internal quotation marks omitted)); Riley v. 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").

         ¶49 The compelled speech doctrine was first articulated in Barnette. There, the Supreme Court addressed a state law requiring a child who was a Jehovah's Witness to salute the American flag. 319 U.S. at 626-29. For both the child and his parents, saluting the flag violated their religious beliefs. Id. at 629. The Court struck down the law as violating the First Amendment, stating that the government cannot compel any individual "to utter what is not in his mind," id. at 634, and that all citizens have autonomy over their "opinion[s] and personal attitude[s]," id. at 631, 636; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (stating 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").

         ¶50 There are, generally speaking, two lines of cases addressing compelled speech. The first involves regulations requiring an individual to express a prescribed government message. For example, in Wooley, the Court held that a law was unconstitutional because it forced a Jehovah's Witness, in violation of his religious beliefs, to display the state motto "Live Free or Die" on his license plate. 430 U.S. at 707-08, 717; see also NIFLA, 138 S.Ct. at 2368-69, 2378 (holding that plaintiffs were likely to succeed in their claim that a state law unconstitutionally compelled speech by requiring crisis pregnancy centers, which were established to prevent abortions, to disseminate prescribed government notices about public funding for abortion services).

         ¶51 A second line of compelled speech cases involves a government regulation that compels a person to host or accommodate another's message. See, e.g., Hurley, 515 U.S. at 572-73, 581 (holding that a state public accommodations law could not be used to compel a parade sponsor to host or accommodate messages from parade participants the sponsor found to be objectionable). This line of cases includes government regulations compelling a person to engage in self-censorship to avoid hosting another's message, as well as regulations forcing a person to respond to another's speech when they would prefer to remain silent. See Pac. Gas & Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1, 5-7, 16-17, 21 (1986) (plurality opinion) (holding that a regulation requiring a privately-owned utility to include, along with its monthly bills, an editorial newsletter published by a consumer group that was critical of its ratemaking practices violated the utility's free speech rights because the utility might "feel compelled to respond to arguments and allegations made by [the consumer group]"); Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 244, 256-58 (1974) (holding that a statute granting political candidates the right to reply to unfavorable newspaper articles violated the First Amendment because it forced newspapers to either respond to the candidates' replies or engage in compelled self-censorship by forgoing printing any articles criticizing a candidate).

         ¶52 The fundamental principle underlying both lines of compelled speech cases is that an individual has autonomy over his or her speech and thus may not be forced to speak a message he or she does not wish to say. Hurley is instructive on this point. There, a private group of veterans (the "Council") was granted a permit by the City of Boston to sponsor a St. Patrick's Day parade. Hurley, 515 U.S. at 560. However, the Council refused to allow a group of gay, lesbian, and bisexual descendants of Irish immigrants ("GLIB") to march "behind a shamrock-strewn banner" stating, "Irish American Gay, Lesbian and Bisexual Group of Boston." Id. at 561, 570. The Supreme Judicial Court of Massachusetts subsequently determined that the Council's refusal violated the state public accommodations law. Id. at 563-64.

         ¶53 The United States Supreme Court reversed, holding that because the parade was a form of protected speech under the First Amendment, the public accommodations law could not be used to compel the Council to host GLIB's message. Id. at 568-69, 573. The Court stated that "whatever the [Council's] reason" for keeping GLIB's message out of the parade, "it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." Id. at 575. The Court held that compelling the Council to host GLIB's message "violate[d] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Id. at 573. Hurley further emphasized that "when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised." Id. at 576; see also Wooley, 430 U.S. at 715 ("Here, as in Barnette, we are faced with a state measure which forces an individual . . . to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State 'invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.'" (quoting Barnette, 319 U.S. at 642)).

         ¶54 The importance of protecting an individual's autonomy over his or her speech was most recently addressed in Janus v. American Federation of State, County, & Municipal Employees, Council 31,138 S.Ct. 2448 (2018). There, Janus, a nonunion employee, objected to paying "agency fees" to a union. Id. at 2461-62. The union claimed the agency fees were based on collective bargaining activities benefiting both union and nonunion employees. See id. at 2461. However, Janus objected to paying any fees to the union because he disagreed with its ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.