IN THE

SUPREME COURT OF THE STATE OF ARIZONA

BRUSH & NIB STUDIO, LC, ET AL.,

Plaintiffs/Appellants/Cross-Appellees,

V.

CITY OF PHOENIX,

Defendant/Appellee/Cross-Appellant.

No. CV-18-0176-PR

Filed September 16, 2019

Appeal from the Superior Court in Maricopa County

The Honorable Karen A. Mullins, Judge

No. CV2016-052251

REVERSED IN PART

Opinion of the Court of Appeals, Division One

244 Ariz. 59 (App. 2018)

VACATED IN PART

COUNSEL:

Jeremy D. Tedesco, Jonathan A. Scruggs (argued), Samuel D. Green, Kristen 

K. Waggoner, John J. Bursch, Alliance Defending Freedom, Scottsdale,

Attorneys for Brush & Nib Studio, LC, Breanna Koski and Joanna Duka

Colin F. Campbell, Eric M. Fraser (argued), Joshua D. Bendor, Osborn 

Maledon, P.A., Phoenix; Cris Meyer, Phoenix City Attorney, Heidi E. 

Gilbert, Assistant Chief Counsel, Brad Holm, Phoenix Aviation Department 

General Counsel, Phoenix, Attorneys for City of Phoenix

Nathan W. Kellum, Center for Religious Expression, Memphis, TN and 

Samuel J. Doncaster, Doncaster Law, PLLC, Phoenix, Attorneys for Amicus 

Curiae Center for Religious Expression

Joshua Carden, Joshua Carden Law Firm, PC, Scottsdale Attorney for 

Amicus Curiae Jewish Coalition for Religious Liberty
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

2

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.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

3

Stewart Salwin, Statecraft PLLC, Phoenix, Attorney for Amicus Curiae 

National Center for Law and Policy

Daniel C. Barr, Barry G. Stratford, Randal B. McDonald, Katherine E. May, 

Lindsey M. Huang, Perkins Coie LLP, Phoenix, Attorneys for Amicus 

Curiae First Amendment Scholars

Jessica M. Hernandez, MayesTelles PLLC, Phoenix and Jennifer C. Pizer, 

Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, 

Attorneys for Amicus Curiae Lambda Legal Defense and Education Fund, 

Inc.

Kenneth W. Schutt, Jr., Schutt Law Firm, P.L.C., Scottsdale, Attorneys for 

Amicus Curiae The C12 Group, LLC

Amanda Salvione, Greenspoon Marder LLP, Phoenix, Attorney for Amicus 

Curiae ONE Community Media, LLC d/b/a ONE Community

JUSTICE GOULD authored the opinion of the Court, in which JUSTICES 

BOLICK, LOPEZ, and PELANDER (RETIRED) joined. JUSTICE BOLICK 

filed a concurring opinion. JUSTICE BALES (RETIRED), joined by VICE 

CHIEF JUSTICE TIMMER and JUDGE STARING,∗ dissented. VICE CHIEF 

JUSTICE TIMMER filed a dissenting opinion. JUDGE STARING filed a 

dissenting opinion.

JUSTICE GOULD, opinion of the Court:

¶1 The rights of free speech and free exercise, so precious to this 

nation since its founding, are not limited to soft murmurings behind the 

doors of a person’s home or church, or private conversations with like–

minded friends and family. These guarantees protect the right of every 

 

*Chief Justice Robert M. Brutinel has recused himself from this case. 

Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable 

Christopher P. Staring, Judge of the Arizona Court of Appeals, Division 

Two, was designated to sit in this matter.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

4

American to express their beliefs in public. This includes the right to create 

and sell words, paintings, and art that express a person’s sincere religious 

beliefs. 

¶2 With these fundamental principles in mind, today we hold 

that the City of Phoenix (the “City”) cannot apply its Human Relations 

Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski, 

owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom 

wedding invitations celebrating same-sex wedding ceremonies in violation 

of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib 

(“Plaintiffs”) have the right to refuse to express such messages under article 

2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise 

of Religion Act (“FERA”), A.R.S. § 41-1493.01. 

¶3 Our holding is limited to Plaintiffs’ creation of custom 

wedding invitations that are materially similar to those contained in the 

record. See Appendix 1. We do not recognize a blanket exemption from the 

Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on 

jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of 

other wedding products may be exempt from the Ordinance. See Appendix 

2. 

¶4 Duka and Koski’s beliefs about same-sex marriage may seem 

old-fashioned, or even offensive to some. But the guarantees of free speech 

and freedom of religion are not only for those who are deemed sufficiently 

enlightened, advanced, or progressive. They are for everyone. After all, 

while our own ideas may be popular today, they may not be tomorrow. 

Indeed, “[w]e can have intellectual individualism” and “rich cultural 

diversities . . . only at the price” of allowing others to express beliefs that 

we may find offensive or irrational. West Virginia State Board of Education v. 

Barnette, 319 U.S. 624, 641–42 (1943). This “freedom to differ is not limited 

to things that do not matter much . . . [t]he test of its substance is the right 

to differ as to things that touch the heart of the existing order.” Id. at 642. 

¶5 Given this reality, the government “must not be allowed to 

force persons to express a message contrary to their deepest convictions.” 

Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361, 2379 

(2018) (Kennedy, J., concurring). Rather, Plaintiffs are entitled to 

continue to advocate with utmost, sincere conviction that, by 

divine precepts, same-sex marriage should not be condoned. 

The First Amendment ensures that religious organizations 

and persons are given proper protection as they seek to teach 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

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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, 135 S. Ct. 2584, 2607 (2015). 

¶6 Although this case is about freedom of speech and religion, it 

suits the preferred analysis of our dissenting colleagues to reframe it as one 

involving discriminatory conduct based on a customer’s sexual orientation. 

This mischaracterization reflects neither Plaintiffs’ position nor our 

holding. Literally none of the examples of invidious, status-based 

discrimination the dissent invokes, see infra ¶ 217-18, would even be 

remotely permitted under our holding today. Plaintiffs must, and they do, 

serve all customers regardless of their sexual orientation. However, by 

focusing solely on the anti-discrimination purpose of the Ordinance, the 

dissent engages in a one–sided analysis that effectively deprives Plaintiffs 

of their fundamental right to express their beliefs. But no law, including a 

public accommodations law, is immune from the protections of free speech 

and free exercise. Rather, “[i]f there is any fixed star in our constitutional 

constellation, it is that no official, high or petty, can prescribe what shall be 

orthodox in politics, nationalism, religion, or other matters of opinion or 

force citizens to confess by word or act their faith therein.” Barnette, 319 

U.S. at 642.

¶7 The enduring strength of the First Amendment is that it 

allows people to speak their minds and express their beliefs without 

government interference. But here, the City effectively cuts off Plaintiffs’ 

right to express their beliefs about same–sex marriage by telling them what 

they can and cannot say. And to justify this action, both the City and the 

primary dissent claim that if we dare to allow Plaintiffs to express their 

beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the 

Old South.

¶8 But casting Plaintiffs’ free speech and exercise rights in such 

a cynical light does grave harm to a society. As Justice Jackson observed in 

Barnette, “[s]truggles to coerce uniformity of sentiment in support of some 

end thought essential to their time and country have been waged by many 

good as well as by evil men,” but, inevitably “those bent on its 

accomplishment must resort to an ever-increasing severity.” Barnette, 319 

U.S. at 640. We would be wise to heed his warning about government 

efforts to compel uniformity of beliefs and ideas: 
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6

[a]s governmental pressure toward unity becomes greater, so 

strife becomes more bitter as to whose unity it shall 

be. . . . . Ultimate futility of such attempts to compel 

coherence is the lesson of every such effort from the Roman 

drive to stamp out Christianity as a disturber of its pagan 

unity, the Inquisition, as a means to religious and dynastic 

unity, the Siberian exiles as a means to Russian unity, down 

to the fast failing efforts of our present totalitarian enemies. 

Those who begin coercive elimination of dissent soon find 

themselves exterminating dissenters. Compulsory unification 

of opinion achieves only the unanimity of the graveyard.

Id. at 641. 

I.

¶9 Duka and Koski are the sole member-owners of Brush & Nib, 

a for-profit limited liability company. Duka and Koski operate Brush & Nib 

as an “art studio” specializing in creating custom artwork for weddings, 

events, special occasions, home décor, and businesses. Duka and Koski

work out of Koski’s home and personally design and create their products. 

In addition to custom-designed products, Brush & Nib sells some pre-made

products. Duka and Koski do not maintain Brush & Nib as a brick-andmortar store but instead sell their products online through various media 

platforms.

¶10 Apart from Plaintiffs’ custom wedding invitations, the record 

contains only a few examples of their products. In contrast, there are 

numerous examples of Plaintiffs’ custom wedding invitations. See

Appendix 1. All these custom invitations feature Plaintiffs’ hand-drawn 

images and paintings, custom lettering and calligraphy, as well as their 

original artwork. Additionally, the names of a female bride and a male 

groom are prominently displayed in every custom invitation.

¶11 The City concedes that “[a]ll the custom wedding invitations 

Brush & Nib creates include language that is celebratory of the wedding.” 

Specifically, Plaintiffs create and write celebratory statements in every 

custom invitation, including such statements as “[the couple or their 

parents] request the pleasure of your company at the celebration of their 

marriage,” “request the honor of your presence,” “invite you to the 

celebration of their marriage,” or “invite you to share in the joy of their 

marriage.” (Emphasis added.) 
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¶12 Plaintiffs closely collaborate with each client in creating their

custom wedding invitations. The client provides the names of the bride 

and groom, as well as the location and date of the wedding. A client may 

also share preferences regarding the colors and style of the invitation. 

Plaintiffs, in turn, propose their artistic ideas for the invitation, including 

colors, artwork, text, and phrasing. As part of this process, Plaintiffs

“frequently suggest the particular words to use” in the invitation.

¶13 Once a client signs a contract for their services, Plaintiffs 

design and create the invitations. Although a client may ultimately reject 

Plaintiffs’ work, the contract states that Brush & Nib “retains complete 

artistic freedom with respect to every aspect of the design’s and artwork’s 

creation.” The contract provides that the client’s requested design and

artwork must “express[] messages that promote [Brush & Nib’s] religious 

or artistic beliefs, or at least are not inconsistent with these beliefs.” Further, 

Brush & Nib “reserves the right to terminate” the contract if it subsequently 

determines, in its “sole discretion, that the requested design or artwork 

communicates ideas or messages . . . that are inconsistent with [Brush & 

Nib’s] religious or artistic beliefs.”

¶14 Duka and Koski are Christians. Based on their faith, they do 

not believe they can do anything, either in their business or personal lives, 

that “violates their religious beliefs or dishonors God.” Thus, in addition 

to making a profit, Duka and Koski seek to operate Brush & Nib consistent 

with their religious beliefs. For example, Brush & Nib’s Operating 

Agreement (the “Agreement”) states that Brush & Nib is a “for-profit 

limited liability company” that “is owned solely by Christian artists who 

operate [Brush & Nib] as an extension of and in accordance with their 

artistic and religious beliefs.” The Agreement sets forth Brush & Nib’s

“Core Beliefs” and provides that “Brush & Nib is unwilling to use its artistic 

process” or “create art” that contradicts its religious “beliefs and message.”

The Agreement further provides that Brush & Nib “reserves the right to 

deny any request for action or artwork that violates its artistic and religious 

beliefs.” As examples of such objectionable artwork, the Agreement states 

that Brush & Nib will refuse to create “custom artwork that communicates 

ideas or messages . . . that contradict biblical truth, demean others, endorse 

racism, incite violence, or promote any marriage besides marriage between 

one man and one woman, such as same-sex marriage.”

¶15 Duka and Koski hold traditional Christian beliefs about 

marriage. They believe that “God created two distinct genders in His 

image,” and that only a man and a woman can be joined in marriage. This 

belief is based on the Bible; thus, for example, Plaintiffs cite Matthew 19:4–
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5, which states that God “made them male and female, and said, [f]or this 

reason a man shall leave his father and mother and be joined to his wife, 

and the two shall become one.” (Internal quotation marks omitted.) Duka 

testified that she believes that marriage reflects God’s glory and presents a 

picture of “Christ and his love for the church.” 

¶16 As a tenet of their faith, Duka and Koski do not believe that 

two people of the same sex can be married. Plaintiffs stress that they will 

create custom artwork for, and sell pre-made artwork to, any customers

regardless of their sexual orientation. However, they believe that creating 

a custom wedding invitation that conveys a message celebrating same-sex 

marriage, for any customer regardless of sexual orientation, violates their 

sincerely held religious convictions. 

A. The Ordinance

¶17 The City of Phoenix’s Ordinance, as amended in 2013, 

prohibits public accommodations from discriminating against persons 

based on their status in a “protected” group, which includes a person’s 

sexual orientation. Phx., Ariz., City Code (“PCC”) § 18-4(B). In contrast, 

neither Arizona’s public accommodations law nor the federal civil rights 

public accommodations statute lists sexual orientation as a legally

protected status. See A.R.S. § 41-1442(A); 42 U.S.C. § 2000a(a).

¶18 Under the Ordinance, public accommodations include “all 

establishments offering their services, facilities or goods to or soliciting 

patronage from the members of the general public.” PCC § 18-3. Section 

18-4(B)(2) makes it unlawful for any business operating as a public 

accommodation to “directly or indirectly[] refuse, withhold from, or deny 

to any person . . . accommodations, advantages, facilities or 

privileges . . . because of” a person’s status in a protected group. 

Additionally, the Ordinance forbids such businesses from making any 

“distinction . . . with respect to any person based on” status with respect to 

“the price or quality of any item, goods or services offered.” PCC § 18-

4(B)(2).

¶19 Section 18-4(B)(3) also makes it unlawful for a public 

accommodation “to directly or indirectly display, circulate, publicize or 

mail any advertisement, notice or communication which states or implies 

that any facility or service shall be refused or restricted because of” a 

person’s status. This subsection also prohibits displays or publications that 

state or imply that based on a person’s status they “would be unwelcome, 

objectionable, unacceptable, undesirable or not solicited.” Id.
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¶20 Complaints regarding violations of the Ordinance are initially 

handled by the City’s Equal Opportunity Department (the “Department”).

PCC § 18-5(A). If the Department determines that there is reasonable cause 

to believe that a violation has occurred, it must first attempt to resolve the 

violation though “informal methods,” such as conciliation and mediation. 

Id. § 18-5(D)(2), (E), (G). However, if the Department finds no reasonable 

cause, the complainant may “request that the City Attorney file a criminal 

complaint.” Id. § 18-5(D)(1). Further, if the business owner refuses to 

correct the violation through informal means, the Department may refer the 

matter to the City Attorney for criminal prosecution. Id. § 18-6. 

¶21 Pursuant to § 18-7(A), any person convicted of violating the 

Ordinance is guilty of a class 1 misdemeanor. As punishment, a violator 

may be ordered to serve up to six months in jail or three years’ probation, 

or pay a maximum fine of $2,500, or any combination of jail, fines, and 

probation. Id. § 1-5. Section 1-5 also provides that “[e]ach day any 

violation” continues “shall constitute a separate offense.” Continuing 

violations may also “be deemed a public nuisance” and “abated as 

provided by law.” Id.

B. Procedural Background

¶22 To date, the City has not cited Plaintiffs for violating the 

Ordinance. Plaintiffs filed this action to enjoin the City from enforcing the 

Ordinance against them in the future, as well as to obtain a declaration that 

the Ordinance violates their right to free speech under article 2, section 6 of 

the Arizona Constitution, and their free exercise right under FERA, § 41-

1493.01. As part of their requested declaratory relief, Plaintiffs request an 

order allowing them to post a proposed statement (the “Statement”) on 

Brush & Nib’s website announcing their intention to refuse requests to 

create custom artwork for same-sex weddings. The Statement explains that 

Brush & Nib will not “create any artwork that violates our vision as defined 

by our religious and artistic beliefs and identity.” It lists several examples 

of objectionable artwork, including artwork promoting businesses that 

“exploit women or sexually objectify the female body,” exploits the 

environment, or “any custom artwork that demeans others, endorses 

racism, incites violence, contradicts our Christian faith, or promotes any 

marriage except marriage between one man and one woman,” such as 

“wedding invitations[] for same-sex wedding ceremonies.” 

¶23 The City filed a motion to dismiss, arguing that Plaintiffs 

lacked standing to bring this action. Specifically, the City asserted that 

Plaintiffs had not yet refused to create any products for a same-sex wedding 
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and therefore had not violated the Ordinance. The trial court denied the 

motion.

¶24 After an evidentiary hearing, the court denied Plaintiffs’ 

motion for a preliminary injunction. Following the hearing, each party 

moved for summary judgment. The trial court denied Plaintiffs’ motion

but granted the City’s motion. In its ruling, the court concluded that the 

Ordinance did not violate Plaintiffs’ rights to free speech or free exercise of 

religion under FERA. 

¶25 The court of appeals affirmed both the trial court’s denial of 

the City’s motion to dismiss and its grant of summary judgment in favor of 

the City. Brush & Nib Studio, LC v. City of Phoenix, 244 Ariz. 59, 68–69 ¶ 16, 

78 ¶ 55 (App. 2018). The court held that the Ordinance did not violate

Plaintiffs’ freedom of speech or substantially burden their free exercise 

rights under FERA. Id. at 72 ¶ 29, 73 ¶ 32, 77 ¶ 49. However, the court 

struck down as unconstitutionally vague the provision in § 18-4(B)(3) 

prohibiting displays or publications stating or implying that a person in a 

protected group “would be unwelcome, objectionable, unacceptable, 

undesirable or not solicited.” Id. at 75–76 ¶¶ 43–45 & n.12. The court 

severed this provision from the Ordinance, concluding that the remainder 

of § 18-4(B)(3) “operates independently and is enforceable.” Id. at 76 ¶ 44. 

¶26 We granted review because this case involves constitutional 

and statutory issues of statewide importance. We have jurisdiction 

pursuant to article 6, section 5(3) of the Arizona Constitution.

II.

¶27 Plaintiffs contest the trial court’s denial of their motion for a 

preliminary injunction, as well as the court’s denial of their motion for 

summary judgment and grant of summary judgment in favor of the City. 

However, we need not review the trial court’s denial of Plaintiffs’ motion 

for a preliminary injunction because its rulings on the parties’ summary 

judgment motions are dispositive here. 

¶28 We review the trial court’s rulings on the motions for

summary judgment de novo. Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545

¶ 7 (2019). We review statutory, constitutional, and mixed questions of law 

and fact de novo. City of Surprise v. Ariz. Corp. Comm’n, 246 Ariz. 206, 210 

¶ 10 (2019) (statutes); Gallardo v. State, 236 Ariz. 84, 87 ¶ 8 (2014) 

(constitutional questions); Valley Med. Specialists v. Farber, 194 Ariz. 363, 366 

¶ 10 (1999) (mixed questions of law and fact).
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¶29 Plaintiffs concede Brush & Nib is a public accommodation as 

defined by PCC § 18-3. However, they argue that the Ordinance, as applied 

by the City, compels them to use their artistic talents and personal 

expression to create custom invitations celebrating same-sex weddings in 

violation of their free speech rights under article 2, section 6 of the Arizona 

Constitution and their free exercise rights under FERA. Plaintiffs assert 

they will serve all customers, regardless of their sexual orientation. 

However, they refuse to create or express certain messages, regardless of 

who makes the request. This includes creating custom invitations that 

celebrate a same-sex marriage ceremony.

¶30 The City concedes that the Ordinance does not require Duka 

and Koski to express any messages condoning or celebrating same-sex 

marriage. Thus, for example, the City agrees that the Ordinance does not 

require Duka and Koski to create a custom invitation containing the 

statement, “support gay marriage,” or symbols, such as the equal sign of 

the Human Rights Campaign, that would be recognized by a third-party 

observer as expressly endorsing same-sex marriage. The City argues, 

however, that the Ordinance, as applied to Plaintiffs’ custom wedding 

invitations, regulates conduct, not speech. Thus, by refusing to create or 

sell such invitations for use in same-sex weddings, the City contends that 

Plaintiffs are engaging in discriminatory conduct prohibited by the 

Ordinance. 

¶31 For their remedy, Plaintiffs generally seek relief permitting 

them to (1) refuse requests to create custom-made wedding products for 

same-sex weddings, and (2) post their Statement regarding their intention 

to refuse such services. Alternatively, Plaintiffs seek partial relief limited to 

their creation of custom wedding invitations that are “materially similar” 

to the invitations contained in the record.

¶32 Plaintiffs originally raised both facial and as-applied 

challenges to the constitutionality of the Ordinance. However, because 

Plaintiffs’ facial challenge was limited to the provision struck down by the 

court of appeals (a ruling neither party challenges here), only Plaintiffs’ asapplied challenge remains. See Brush & Nib, 244 Ariz. at 75–76 ¶¶ 43–45 & 

n.12. Thus, we need not consider the general validity of the Ordinance or 

the Ordinance’s application to other individuals or businesses that are not 

before this Court. See Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (stating 

that “a statute or a rule may be held constitutionally invalid as applied 

when it operates to deprive an individual of a protected right although its 

general validity . . . is beyond question,” and that “in cases involving 

religious freedom, free speech or assembly, this Court has often held that a 
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12

valid statute was unconstitutionally applied in particular circumstances 

because it interfered with an individual’s exercise of those rights”).

III.

¶33 The City argues the trial court erred in denying its motion to 

dismiss based on Plaintiffs’ lack of standing. Specifically, the City asserts

that because Plaintiffs filed this action “before any same-sex couple had 

requested custom wedding products,” their lawsuit is based on speculative 

claims about how the Ordinance might apply to hypothetical customer 

requests involving Plaintiffs’ entire range of custom products. Because 

none of these abstract legal claims may ever arise, the City contends that 

Plaintiffs’ action challenging PCC § 18-4(B)(2) is not ripe and should be 

dismissed. 

¶34 We ordinarily review a trial court’s ruling on a motion to 

dismiss for an abuse of discretion, Legacy Foundation Action Fund v. Citizens 

Clean Elections Commission, 243 Ariz. 404, 405 ¶ 6 (2018), but questions of 

standing and ripeness are reviewed de novo, In re Estate of Stewart, 230 Ariz. 

480, 483–84 ¶ 11 (App. 2012) (ripeness); Aegis of Ariz., L.L.C. v. Town of 

Marana, 206 Ariz. 557, 562 ¶ 16 (App. 2003) (standing).

¶35 Although the Arizona Constitution does not have a case or 

controversy requirement like the Federal Constitution, we do apply the 

doctrines of standing and ripeness “as a matter of sound judicial policy.” 

Bennett v. Napolitano, 206 Ariz. 520, 524 ¶ 16 (2003). Because in this case the 

underlying concerns for standing and ripeness are the same, we simply use 

the term “ripeness” to apply to both doctrines here. See Thomas v. Anchorage 

Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (“The constitutional 

component of the ripeness inquiry is often treated under the rubric of 

standing and, in many cases, ripeness coincides squarely with standing’s 

injury in fact prong.”); Town of Gilbert v. Maricopa Cty., 213 Ariz. 241, 244 ¶ 8 

(App. 2006) (stating that “[r]ipeness is analogous to standing”).

¶36 Ripeness is a prudential doctrine that prevents a court from 

rendering a premature decision on an issue that may never arise. Winkle v. 

City of Tucson, 190 Ariz. 413, 415 (1997). Though federal justiciability 

jurisprudence is not binding on Arizona courts, the factors federal courts 

use to determine whether a case is justiciable are instructive. See Bennett, 

206 Ariz. at 525 ¶ 22. Thus, as a general matter, if the plaintiff has incurred 

an injury, the case is ripe. See Brewer v. Burns, 222 Ariz. 234, 238 ¶ 15 (2009). 

A case is also ripe if there is an actual controversy between the parties. 

Estate of Stewart, 230 Ariz. at 484 ¶ 12; see Planned Parenthood Ctr. of Tucson, 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

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13

Inc. v. Marks, 17 Ariz. App. 308, 312–13 (1972) (stating that challengers of 

statute forbidding abortions under certain circumstances were not required 

to wait for criminal prosecution because that statute allegedly chilled their 

constitutional rights and therefore constituted an actual controversy). 

¶37 Here, we need not speculate about how the Ordinance might 

apply to customer requests for Plaintiffs’ custom wedding invitations. 

While it is true that, for most of Plaintiffs’ products, the factual record is not 

sufficiently developed, that is not the case with respect to the custom 

invitations. The record, as reflected by the exhibits contained in Appendix 

1, contains numerous examples of Plaintiffs’ custom wedding invitations. 

All of these invitations contain detailed examples of Plaintiffs’ words, 

drawings, paintings, and original artwork, and Duka and Koski have 

testified about their process of designing and creating these custom 

invitations. Supra ¶¶ 9–14. Additionally, in their briefs, the parties have 

analyzed, in detail, the legal claims and arguments based on these custom

invitations. 

¶38 Finally, because Plaintiffs have specifically asked this Court, 

as an alternative form of relief, to limit our decision to custom wedding 

invitations that are materially similar to the invitations contained in the 

record, supra ¶ 31, we may limit our analysis and holding to Plaintiffs’ 

creation of this specific product. See A.R.S. § 41-1493.01(D) (permitting 

FERA claimants to “obtain appropriate relief against a government” 

(emphasis added)); Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (stating that 

“the scope of injunctive relief is dictated by the extent of the violation 

established”). 

¶39 Thus, we conclude there is an actual case and controversy that 

exists regarding Plaintiffs’ creation of custom wedding invitations that are 

materially similar to those in the record. Duka and Koski face a real threat 

of being prosecuted for violating the Ordinance by refusing to create such 

invitations for a same-sex wedding. See Babbitt v. United Farm Workers Nat’l 

Union, 442 U.S. 289, 298, 300–01 (1979) (finding standing despite the lack of 

a concrete factual situation or criminal enforcement of the statute against 

the challenger because the threshold issue, whether the challengers’ activity 

was protected as free speech, was justiciable); see also A.R.S. § 12-1832 

(authorizing any person “whose rights . . . are affected by a . . . municipal 

ordinance” to seek declaratory relief on the validity of the ordinance and 

“obtain a declaration of rights, status or other legal relations thereunder”). 

In contrast, Plaintiffs’ sweeping challenge to the Ordinance as applied to all

of Brush & Nib’s remaining custom wedding products (as reflected in 

Appendix 2) implicates a multitude of possible factual scenarios too 
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Opinion of the Court

14

“imaginary” or “speculative” to be ripe. Thomas, 220 F.3d at 1139 (quoting 

Babbitt, 442 U.S. at 298). 

¶40 Additionally, given the City’s assertion that it can apply the 

Ordinance to Plaintiffs’ custom wedding invitations, which includes the 

threat of criminal prosecution and significant penalties, Plaintiffs have 

suffered an injury through the chilling of their free speech and free exercise 

rights. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (holding 

there was an injury to challenger’s speech rights prior to a challenged 

criminal statute becoming effective, where the state never stated it would 

not enforce the statute).

¶41 Accordingly, we agree with the trial court and the court of 

appeals that, to the extent Plaintiffs’ action is based on their custom 

wedding invitations, it is justiciable. We therefore affirm the trial court and 

the court of appeals’ denial of the City’s motion to dismiss as to Plaintiffs’ 

custom wedding invitations. Brush & Nib, 244 Ariz. at 68–69 ¶ 16. 

However, Plaintiffs’ claims based on their remaining custom products are 

not ripe, and we therefore reverse and grant the City’s motion to dismiss as 

to these products. 

IV. 

¶42 Plaintiffs allege that the Ordinance, as applied by the City, 

compels them to create custom wedding invitations celebrating same-sex 

marriage in violation of Arizona’s free speech clause. See Ariz. Const. art. 

2, § 6 (stating that “[e]very person may freely speak, write, and publish on 

all subjects, being responsible for the abuse of that right”).

¶43 Generally, “[w]e will not reach a constitutional question if a 

case can be fairly decided on non[-]constitutional grounds.” R.L. Augustine 

Constr. Co., Inc. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368, 370 (1997). 

However, when constitutional and non-constitutional issues are 

intertwined in a case, we must address the constitutional issue. See State v. 

Church, 109 Ariz. 39, 41 (1973); Katherine S. v. Foreman, 197 Ariz. 371, 378 

¶ 16 (App. 1999) (deciding constitutional issue because the issue was 

“intertwined” with non-constitutional issue and citing Church for the 

proposition that the “fact that constitutional and non-constitutional issues 

are interwoven justifies addressing all issues”). 

¶44 Here, because Plaintiffs’ FERA claim is closely intertwined 

with their free speech claim, we find it necessary to address the 

constitutional issue in this case. Katherine S., 197 Ariz. at 378 ¶ 16; see also 

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 
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15

160-69 (2002) (discussing both freedom of speech and free exercise as the 

plaintiff’s exercise of both rights were affected by challenged law); cf. 

Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) (collecting cases 

analyzing both freedom of speech and free exercise); Masterpiece Cakeshop, 

Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1740–48 (2018) (Thomas, J., 

concurring) (analyzing free speech issue despite concluding that 

challengers’ free exercise rights were violated). The legal and factual 

questions underlying Plaintiffs’ free speech and FERA claims require us to 

address the same basic issues: (1) whether the Ordinance, as applied by the 

City, compels Plaintiffs to express a message that violates their religious 

convictions, and (2) if so, whether Plaintiffs have a protected right to refuse 

to express that message in the operation of their business. 

¶45 In examining the text of Arizona’s free speech clause, we first 

observe that whereas the First Amendment is phrased as a constraint on 

government, U.S. Const. amend. I (“Congress shall make no law . . . 

abridging the freedom of speech.”), our state’s provision, by contrast, is a 

guarantee of the individual right to “freely speak, write, and publish,”

subject only to constraint for the abuse of that right. See State v. Stummer, 

219 Ariz. 137, 142 ¶ 14 (2008); see also id. ¶ 15 (“The encompassing text of 

[a]rticle 2, [s]ection 6 indicates the Arizona framers’ intent to rigorously 

protect freedom of speech.”). Thus, by its terms, the Arizona Constitution

provides broader protections for free speech than the First Amendment. 

See, e.g., Coleman v. City of Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (stating 

that article 2, section 6 “is in some respects more protective of free speech 

rights than the First Amendment”); Stummer, 219 Ariz. at 143 ¶ 17 (“We 

have also stated that [a]rticle 2, [s]ection 6 has ‘greater scope than the [F]irst 

[A]mendment.’” (citation omitted)); Mountain States Tel. & Tel, Co. v. Ariz. 

Corp. Comm’n, 160 Ariz. 350, 356 (1989) (“[W]e apply here the broader 

freedom of speech clause of the Arizona Constitution.”). 

¶46 However, although article 2, section 6 does, by its terms, 

provide greater speech protection than the First Amendment, we have 

rarely explored the contours of that right. Rather, we have often relied on 

federal case law in addressing free speech claims under the Arizona 

Constitution. Stummer, 219 Ariz. at 142 ¶ 16 (stating that “Arizona courts 

have had few opportunities to develop Arizona’s free speech 

jurisprudence,” and in “construing [a]rticle 2, [s]ection 6 have followed 

federal interpretations of the United States Constitution”); Mountain States, 

160 Ariz. at 358 (looking to First Amendment precedent in determining that 

a government regulation violated Arizona’s free speech clause). Here, 

while Plaintiffs generally assert that their compelled speech claim, see infra 

Section IV(A)–(D), is based on the Arizona Constitution, in arguing that 
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Opinion of the Court

16

claim they rely almost exclusively on federal cases construing the First 

Amendment. 

¶47 This, however, presents no difficulty for us in resolving 

Plaintiffs’ compelled speech claim. Specifically, because federal precedent 

conclusively resolves Plaintiffs’ claim, we can adequately address it under 

First Amendment jurisprudence. And, because a violation of First 

Amendment principles “necessarily implies” a violation of the broader 

protections of article 2, section 6 of the Arizona Constitution, by applying 

First Amendment jurisprudence, we therefore address Plaintiffs’ state 

claim. Coleman, 230 Ariz. at 361 ¶ 36 n.5 (noting that because plaintiffs had 

adequately stated a claim under the First Amendment, this “necessarily 

implie[d] that they ha[d] also stated claims under [a]rticle 2, [s]ection 6 of 

Arizona’s Constitution,” and thus there was no need to address whether 

Arizona’s free speech clause “might afford greater protection . . . than 

applies under the First Amendment”); see also Mountain States, 160 Ariz. 

at 358 (“As we have already determined that ‘narrow specificity’ is a 

requirement of a time, place, and manner regulation under the [F]irst 

[A]mendment, we must hold the same under the more stringent protections 

of the Arizona Constitution.”). 

A. Compelled Speech 

¶48 The compelled speech doctrine is grounded on the principle

that freedom of speech “includes both the right to speak freely and the right 

to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977); 

see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 

573 (1995) (“[O]ne important manifestation of the principle of free speech is 

that one who chooses to speak may also decide what not to say.” (citation 

and internal quotation marks omitted)); Riley v. Nat’l Fed’n of the Blind of 

N.C., 487 U.S. 781, 796–97 (1988) (stating that the First Amendment 

guarantee of free speech necessarily includes the freedom of deciding “both 

what to say and what not to say”). 

¶49 The compelled speech doctrine was first articulated in 

Barnette. There, the Supreme Court addressed a state law requiring a child 

who was a Jehovah’s Witness to salute the American flag. 319 U.S. at 626–

29. For both the child and his parents, saluting the flag violated their 

religious beliefs. Id. at 629. The Court struck down the law as violating the 

First Amendment, stating that the government cannot compel any

individual “to utter what is not in his mind,” id. at 634, and that all citizens 

have autonomy over their “opinion[s] and personal attitude[s],” id. at 631, 

636; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (stating 
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Opinion of the Court

17

that “[a]t the heart of the First Amendment lies the principle that each 

person should decide for himself or herself the ideas and beliefs deserving 

of expression, consideration, and adherence,” and that any “[g]overnment 

action that . . . requires the utterance of a particular message favored by the 

Government[] contravenes this essential right”). 

¶50 There are, generally speaking, two lines of cases addressing 

compelled speech. The first involves regulations requiring an individual to 

express a prescribed government message. For example, in Wooley, the 

Court held that a law was unconstitutional because it forced a Jehovah’s 

Witness, in violation of his religious beliefs, to display the state motto “Live 

Free or Die” on his license plate. 430 U.S. at 707–08, 717; see also NIFLA, 138 

S. Ct. at 2368–69, 2378 (holding that plaintiffs were likely to succeed in their 

claim that a state law unconstitutionally compelled speech by requiring 

crisis pregnancy centers, which were established to prevent abortions, to 

disseminate prescribed government notices about public funding for 

abortion services).

¶51 A second line of compelled speech cases involves a 

government regulation that compels a person to host or accommodate 

another’s message. See, e.g., Hurley, 515 U.S. at 572–73, 581 (holding that a 

state public accommodations law could not be used to compel a parade 

sponsor to host or accommodate messages from parade participants the 

sponsor found to be objectionable). This line of cases includes government 

regulations compelling a person to engage in self-censorship to avoid 

hosting another’s message, as well as regulations forcing a person to 

respond to another’s speech when they would prefer to remain silent. See 

Pac. Gas & Elec. Co. v. Pub. Util. Comm’n, 475 U.S. 1, 5–7, 16–17, 21 (1986)

(plurality opinion) (holding that a regulation requiring a privately-owned 

utility to include, along with its monthly bills, an editorial newsletter 

published by a consumer group that was critical of its ratemaking practices

violated the utility’s free speech rights because the utility might “feel 

compelled to respond to arguments and allegations made by [the consumer 

group]”); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 244, 256–58 (1974)

(holding that a statute granting political candidates the right to reply to 

unfavorable newspaper articles violated the First Amendment because it 

forced newspapers to either respond to the candidates’ replies or engage in 

compelled self-censorship by forgoing printing any articles criticizing a 

candidate). 

¶52 The fundamental principle underlying both lines of 

compelled speech cases is that an individual has autonomy over his or her 

speech and thus may not be forced to speak a message he or she does not 
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Opinion of the Court

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, 515 U.S. at 560. However, the 

Council refused to allow a group of gay, lesbian, and bisexual descendants 

of Irish immigrants (“GLIB”) to march “behind a shamrock-strewn banner”

stating, “Irish American Gay, Lesbian and Bisexual Group of Boston.” Id.

at 561, 570. The Supreme Judicial Court of Massachusetts subsequently 

determined that the Council’s refusal violated the state public 

accommodations law. Id. at 563–64.

¶53 The United States Supreme Court reversed, holding that 

because the parade was a form of protected speech under the First 

Amendment, the public accommodations law could not be used to compel 

the Council to host GLIB’s message. Id. at 568–69, 573. The Court stated 

that “whatever the [Council’s] reason” for keeping GLIB’s message out of 

the parade, “it boils down to the choice of a speaker not to propound a 

particular point of view, and that choice is presumed to lie beyond the 

government’s power to control.” Id. at 575. The Court held that compelling 

the Council to host GLIB’s message “violate[d] the fundamental rule of 

protection under the First Amendment, that a speaker has the autonomy to 

choose the content of his own message.” Id. at 573. Hurley further 

emphasized that “when dissemination of a view contrary to one’s own is 

forced upon a speaker intimately connected with the communication 

advanced, the speaker’s right to autonomy over the message is 

compromised.” Id. at 576; see also Wooley, 430 U.S. at 715 (“Here, as in 

Barnette, we are faced with a state measure which forces an individual . . . to 

be an instrument for fostering public adherence to an ideological point of 

view he finds unacceptable. In doing so, the State ‘invades the sphere of 

intellect and spirit which it is the purpose of the First Amendment to our 

Constitution to reserve from all official control.’” (quoting Barnette, 319 U.S. 

at 642)). 

¶54 The importance of protecting an individual’s autonomy over 

his or her speech was most recently addressed in Janus v. American

Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448

(2018). There, Janus, a nonunion employee, objected to paying “agency 

fees” to a union. Id. at 2461–62. The union claimed the agency fees were 

based on collective bargaining activities benefiting both union and 

nonunion employees. See id. at 2461. However, Janus objected to paying 

any fees to the union because he disagreed with its collective bargaining 

position, which he believed was having a negative effect on the state’s

“fiscal crises.” Id. at 2461–62. 
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Opinion of the Court

19

¶55 The Supreme Court concluded that requiring Janus to pay the 

agency fees violated his free speech rights because it compelled him to 

subsidize the union’s speech. Id. at 2466, 2486. The Court stated that 

“[c]ompelling individuals to mouth support for views they find 

objectionable violates” the “cardinal constitutional command” that 

individuals have autonomy over their speech. Id. at 2463. The Court 

explained that “[f]ree speech serves many ends,” and “[w]henever the 

Federal Government or a State prevents individuals from saying what they 

think on important matters or compels them to voice ideas with which they 

disagree, it undermines these ends.” Id. at 2464. The Court further 

explained that “[w]hen speech is compelled . . . additional damage is done” 

because it “forc[es] free and independent individuals to endorse ideas they 

find objectionable[, which] is always demeaning,” and coerces individuals 

“into betraying their convictions.” Id.

B. Protected Speech

¶56 To prevail on their compelled speech claim, Plaintiffs first 

must show that their custom wedding invitations are protected speech 

under the First Amendment. See Hurley, 515 U.S. at 568–70 (examining 

whether, as a threshold matter, a parade involves protected speech); see also 

Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (FAIR), 547 U.S. 47, 64 (2006)

(determining, as an initial matter, that access to law school interview rooms 

did not involve protected speech); Coleman, 230 Ariz. at 357 ¶ 18 (“To 

determine if the Colemans have stated a claim for a violation of their free 

speech rights, we must determine whether tattooing is constitutionally 

protected expression.”). 

¶57 Plaintiffs assert that their custom invitations are “pure 

speech,” and therefore fully protected. The City, however, contends that 

Plaintiffs’ invitations contain no constitutionally relevant speech 

component. Rather, according to the City, applying the Ordinance to 

require Duka and Koski to create custom invitations for same-sex weddings 

purely involves conduct, without implicating speech.

1. Pure Speech 

¶58 Pure speech is protected under both the Arizona Constitution 

and the First Amendment. Coleman, 230 Ariz. at 357–58 ¶¶ 18–19, 361 ¶ 36 

n.5; see also Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir. 

2010). Pure speech includes written and spoken words, as well as other 

media such as paintings, music, and film “that predominantly serve to 

express thoughts, emotions, or ideas.” Coleman, 230 Ariz. at 358 ¶ 18; see 
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Opinion of the Court

20

also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (stating that 

books, plays, films, and video games are protected pure speech); Hurley, 

515 U.S. at 569 (stating that music, painting, and poetry are examples of 

speech that are “unquestionably shielded” under the First Amendment);

Kaplan v. California, 413 U.S. 115, 119–20 (1973) (stating that “pictures, films, 

paintings, drawings, and engravings” enjoy First Amendment protection). 

Additionally, this Court has concluded that tattoos are pure speech. 

Coleman, 230 Ariz. at 358–59 ¶ 23 (citing Anderson, 621 F.3d at 1059–60 

(holding that tattoos are pure speech and thus “entitled to full First 

Amendment protection”)).

¶59 Pure speech also includes original artwork. See Cressman v. 

Thompson, 798 F.3d 938, 952 (10th Cir. 2015) (holding that paintings, 

drawings, and original artwork are protected pure speech); White v. City of 

Sparks, 500 F.3d 953, 955–56 (9th Cir. 2007) (stating that original artwork is 

protected speech); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir. 

2003) (same); Bery v. City of New York, 97 F.3d 689, 694–96 (2d Cir. 1996) 

(same). As one court has stated, the First Amendment protects “art for art’s 

sake.” Piarowski v. Ill. Cmty. Coll. Dist. 515, 759 F.2d 625, 628 (7th Cir. 1985); 

see also Jucha v. City of North Chicago, 63 F. Supp. 3d 820, 825 (N.D. Ill. 2014) 

(“There is no doubt that the First Amendment protects artistic 

expression.”). 

¶60 Protection for pure speech is not solely based on the medium 

itself. See Coleman, 230 Ariz. at 359 ¶ 24 (stating that “whether or not 

something is ‘speech’ protected by the First Amendment cannot focus upon 

the medium chosen for its expression” (citation and internal quotation 

marks omitted)). Rather, words, pictures, paintings, and films qualify as 

pure speech when they are used by a person as a means of self-expression. 

See Hurley, 515 U.S. at 576 (stating that self-expression exists where the 

speaker is “intimately connected with the communication advanced”);

Cressman, 798 F.3d at 954 (“Pure-speech treatment is only warranted for 

those images whose creation is itself an act of self-expression.”); Jucha, 63 F. 

Supp. 3d at 827 (stating that pure speech involves self-expression through 

art and other forms of “expressive media”). Thus, for example, a painting 

is pure speech when an artist paints it to express his personal “vision of 

movement and color.” White, 500 F.3d at 956.

¶61 In addition to pure speech, the First Amendment also protects 

conduct that is “sufficiently imbued with elements of communication.” 

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 

U.S. 405, 409 (1974)); see Coleman, 230 Ariz. at 358 ¶ 19. However, because 

“an apparently limitless variety of conduct can be labeled ‘speech,’” United 
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Opinion of the Court

21

States v. O’Brien, 391 U.S. 367, 376 (1968), an “interpretive step” is necessary 

to determine whether conduct contains an expressive element. Anderson, 

621 F.3d at 1061. To make this determination, the Supreme Court has 

formulated a two-part test (referred to as the “Spence-Johnson test”): (1) 

whether the speaker intends for the conduct to convey a “particularized 

message,” and (2) the “likelihood [is] great” that a reasonable third-party 

observer would understand the message. Spence, 418 U.S. at 410–11; see 

Johnson, 491 U.S. at 404; Coleman, 230 Ariz. at 358 ¶ 19 (discussing the SpenceJohnson test). 

¶62 Courts do not apply the Spence-Johnson test to pure speech. 

For example, in Hurley, the Court stated that “a narrow, succinctly 

articulable message is not a condition of constitutional protection” for 

expression such as the “painting of Jackson Pollock, music of Arnold 

Schöenberg, or Jabberwocky verse of Lewis Carroll.” 515 U.S. at 569; see 

also Anderson, 621 F.3d at 1060 (citing Hurley for the proposition that the 

Spence-Johnson test does not apply to pure speech); Coleman, 230 Ariz. at 359 

¶ 27 (citing Hurley for the proposition that the Spence-Johnson test “does not 

apply to paintings and music”); Klein v. Or. Bureau of Labor & Indus., 410 

P.3d 1051, 1069–70 (Or. Ct. App. 2017) (citing Hurley for the proposition that 

“a particularized, discernible message is not a prerequisite for First 

Amendment protection” for various forms of pure speech, such as art, 

music, and video games), vacated and remanded for further consideration, 139 

S. Ct. 2713 (2019) (mem.).

¶63 Likewise, in Coleman, we stated that “purely expressive 

activity,” or pure speech, “is entitled to full First Amendment protection,” 

but “conduct with an expressive component” is only protected if it satisfies 

the Spence-Johnson test. 230 Ariz. at 358 ¶ 19 (quoting Anderson, 621 F.3d 

at 1059); see also Anderson, 621 F.3d at 1060 (holding that pure speech is 

protected “without relying on the Spence[-Johnson] test”); Jucha, 63 F. Supp. 

3d at 827 (holding that “where the case involves purely expressive works 

of art or other expressive media, it is not appropriate to apply Spence”); cf. 

Klein, 410 P.3d at 1070 n.8 (stating that “as we understand the Supreme 

Court to have held[], because the creation of artwork and other inherently 

expressive acts are unquestionably undertaken for an expressive purpose, 

they need not express an articulable message to enjoy First Amendment 

protection”).

2. Business Activity

¶64 Generally, there is no free speech protection for nonexpressive business activities. See Coleman, 230 Ariz. at 360 ¶ 31 (stating 
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Opinion of the Court

22

that “generally applicable laws, such as taxes, health regulations, or 

nuisance ordinances, may apply to” expressive businesses); see also Citizen 

Publ’g Co. v. United States, 394 U.S. 131, 139–40 (1969) (holding that there is

no First Amendment protection for newspaper publishing companies that 

engage in specific monopolistic commercial practices that violate antitrust 

laws); Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 192–93 (1946) (holding 

that the Fair Labor Standards Act applies to all business and that there is no 

First Amendment exemption from the Act for newspaper publishing and 

distribution companies).

¶65 However, some businesses, like tattoo studios and video 

game companies, do create and sell products that are protected free speech. 

Brown, 564 U.S. at 790 (video games); Coleman, 230 Ariz. at 355 ¶ 2 (tattoos). 

For such products, both the finished product and the process of creating 

that product are protected speech. Coleman, 230 Ariz. at 360 ¶ 26 (holding 

that “the process of tattooing is expressive activity”).

¶66 A business does not forfeit the protections of the First 

Amendment because it sells its speech for profit. As we stated in Coleman, 

the “degree of First Amendment protection is not diminished merely 

because the [protected expression] is sold rather than given away.” 230 

Ariz. at 360 ¶ 31 (alteration in original) (quoting City of Lakewood v. Plain 

Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988)). Likewise, the Supreme Court 

stressed in Riley that “a speaker’s rights are not lost merely because 

compensation is received; a speaker is no less a speaker because he or she 

is paid to speak.” 487 U.S. at 801; see also Hurley, 515 U.S. at 573–74 (stating 

the right to autonomy of speech and freedom from compelled speech is 

“enjoyed by business corporations generally,” including “professional 

publishers”); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (holding 

that motion picture companies that operate for profit are “a form of 

expression whose liberty is safeguarded by the First Amendment”). 

¶67 However, simply because a business creates or sells speech 

does not mean that it is entitled to a blanket exemption for all its business 

activities. Like other organizations and associations, no business “is likely 

ever to be exclusively engaged in expressive activities,” and even the most 

expressive business will be engaged in non-expressive business activities. 

Roberts v. U.S. Jaycees, 468 U.S. 609, 635 (1984) (O’Connor, J., concurring in 

part and in the judgment). Thus, for example, in Pittsburgh Press Co. v. 

Pittsburgh Commission on Human Relations, 413 U.S. 376, 385–88, 390–91

(1973), the Supreme Court held that while the First Amendment protected 

the content of articles published by a newspaper, it did not protect the 

newspaper’s facilitation of illegal hiring practices by publishing gender-
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Opinion of the Court

23

specific employment advertisements. See also Arcara v. Cloud Books, Inc., 478 

U.S. 697, 698–99, 705–06 & n.3 (1986) (holding that adult bookstore owner, 

who allowed prostitution to be solicited on his business premises, was 

engaged in “‘nonspeech’ conduct” that “manifest[ed] absolutely no element 

of protected expression,” and stating that “First Amendment values may 

not be invoked by merely linking the words ’sex’ and ‘books’”); Hishon v. 

King & Spalding, 467 U.S. 69, 78 (1984) (stating that while law firms may 

engage in free speech and freedom of association, there is no free speech 

protection to engage in discriminatory employment practices). 

3. Plaintiffs’ Custom Wedding Invitations

¶68 Here, the First Amendment does not protect all of Plaintiffs’ 

business activities or products simply because they operate Brush & Nib as 

an “art studio.” However, Plaintiffs’ custom wedding invitations, and the 

process of creating them, are protected by the First Amendment because 

they are pure speech. Each custom invitation created by Duka and Koski

contains their hand-drawn words, images, and calligraphy, as well as their 

hand-painted images and original artwork. Additionally, Duka and Koski 

are intimately connected with the words and artwork contained in their 

invitations. See Hurley, 515 U.S. at 576 (stating that protected speech 

involves communications that are “intimately connected” with the 

speaker). For each invitation, Duka and Koski spend many hours designing 

and painting custom paintings, writing words and phrases, and drawing 

images and calligraphy. Moreover, they insist on retaining artistic control 

over the ideas and messages contained in the invitations to ensure they are 

consistent with their religious beliefs. 

¶69 In short, here, like tattoos and the process of tattooing in 

Coleman, Plaintiffs’ custom wedding invitations, and the creation of those 

invitations, constitute pure speech entitled to full First Amendment 

protection. 230 Ariz. at 359 ¶¶ 23, 26.

¶70 The City argues, however, that Plaintiffs’ custom invitations 

do not implicate pure speech protection because they often only convey 

“logistical” information (such as date, time, and location) about a wedding. 

Thus, like the scheduling emails in FAIR, the City contends that Plaintiffs’ 

custom invitations do not implicate speech in a constitutionally relevant 

way. 

¶71 We disagree. The City concedes that every custom invitation 

contains “language that is celebratory of the wedding.” Moreover, viewing 

the invitations as a whole, it is clear that Plaintiffs’ artwork, calligraphy,
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Opinion of the Court

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, 515 U.S. at 568 (stating that a parade, as a form 

of expression, must be viewed as a whole, and cannot be reduced to “just 

motion” or simply the observable fact that it involves a group of people 

marching from one destination to another). Moreover, Plaintiffs’ inclusion 

of original artwork and celebratory words and phrases has an emotive 

impact on the overall message of the invitations. See Cohen v. California, 403 

U.S. 15, 26 (1971) (stating that in analyzing speech, words “are often chosen 

as much for their emotive as their cognitive force,” and the emotional force 

“may often be the more important element of the overall message sought to 

be communicated”).

¶72 The City’s comparison of this case to FAIR is inapt. In FAIR, 

an association of law schools and law faculties challenged the 

constitutionality of the Solomon Amendment. 547 U.S. at 52–53. That law 

required the Department of Defense to deny federal funding to any 

institution of higher education, including law schools, that prohibited 

military recruiters from gaining access to campuses. Id. at 51–53. Because 

Congress had adopted a “Don’t Ask, Don’t Tell” policy excluding gays and 

lesbians from serving in the military, FAIR objected, on free speech 

grounds, to providing the military access to their campuses for recruiting 

purposes. See id. at 52–53 & n.1. 

¶73 The Court rejected FAIR’s free speech claim. Specifically, it 

concluded that FAIR’s actions in denying or granting access to their 

campuses involved conduct, not speech. Id. at 62. Additionally, the Court 

stated that the emails and notices FAIR sent to students advising them 

about the dates, times, and locations the military was on campus were 

“plainly incidental to the Solomon Amendment’s regulation of conduct.” 

Id. Simply because FAIR used words “either spoken, written, or printed”

as a means to grant access to their campuses did not transform FAIR’s 

conduct into personal expression. See id. (citation omitted).

¶74 At bottom, the Court recognized that FAIR could not identify 

any personal expression or speech intimately connected with permitting 

access to a room on a law school campus. See id. at 63–65; see also Hurley, 

515 U.S. at 576 (holding that protected speech exists when the speaker is 

“intimately connected with the communication advanced”). The Court 

concluded that “the schools are not speaking when they host interviews 

and recruiting receptions” and that “a law school’s decision to allow 

recruiters on campus is not inherently expressive.” FAIR, 547 U.S. at 64; see 
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Opinion of the Court

25

Telescope Media Group v. Lucero, 2019 WL 3979621 at *9 (8th Cir. Aug. 23, 

2019) (stating that FAIR “was [ ] about the availability of a forum,” and that 

the “Supreme Court upheld the law because it did not interfere with the 

law schools’ expression or coopt their speech” because “[s]imply hosting 

recruiters was not speech”); see also PruneYard Shopping Ctr. v. Robins, 447 

U.S. 74, 76–78, 87–88 (1980) (rejecting compelled speech claim where the 

owner of a shopping center failed to identify any personal expression 

intimately connected with the shopping center and the challenged law 

merely required him to open his property to speakers without forcing him 

to speak).

¶75 This case bears no resemblance to FAIR. Here, Plaintiffs’ 

custom wedding invitations, and the creation of those invitations,

constitute pure speech; Plaintiffs use their original artwork, paintings, 

hand-drawn images, words, and calligraphy as a means of personal 

expression. In contrast, FAIR was not “intimately connected” with the 

empty interview rooms on their campuses, nor was it compelled to create 

emails containing words, phrases, and artwork celebrating the military’s 

presence on campus.

¶76 The City claims, however, that Plaintiffs’ refusal is not really 

based on speech, but rather discriminatory conduct directed at a customer’s 

sexual orientation. The dissent similarly, but incorrectly, asserts that 

Plaintiffs seek to decline products or services based merely on Plaintiffs 

disfavoring or disapproving of certain customers. But these arguments 

misstate Plaintiffs’ position and are not supported by the record. Duka and 

Koski neither testified nor argue that their faith prohibits them from serving 

a customer based on their sexual orientation. Rather, Duka and Koski have 

testified that they are willing to serve any customer, regardless of status, 

and no contrary evidence has been presented. Additionally, the record 

contains no complaints against Plaintiffs for discriminating against 

customers based on their sexual orientation. 

¶77 Nonetheless, the City argues that Plaintiffs’ discriminatory 

intent is shown by the fact that, apart from one name, a custom invitation 

for a same-sex couple is identical to one for a heterosexual couple. We reject 

this rather myopic view of the invitations, which defies the very nature of 

speech and art. Speech must be viewed as a whole, and even one word or 

brush stroke can change its entire meaning. See Cohen, 403 U.S. at 26; see 

also Telescope Media Group, 2019 WL 3979621 at *4 (stating that owners of 

wedding videography business did not create “simple recordings, the 

product of planting a video camera at the end of the aisle and pressing 

record. Rather, they intend to shoot, assemble, and edit the videos with the 
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Opinion of the Court

26

goal of expressing their own views about the sanctity of marriage”). For 

example, in Hurley, the Supreme Court determined that one banner in a 

parade of 20,000 participants changed the expressive content of the entire 

parade. 515 U.S. at 560–61, 572–75. Thus, for Duka and Koski, writing the 

names of two men or two women (even when the names could refer to 

either a male or female) clearly does alter the overall expressive content of 

their wedding invitations. Cf. Kaahumanu v. Hawaii, 682 F.3d 789, 799 (9th 

Cir. 2012) (stating that, in the context of expressive conduct, “[w]edding 

ceremonies convey important messages about the couple, their beliefs, and 

their relationship to each other and to their community”). 

¶78 Ultimately, the City’s analysis is based on the flawed 

assumption that Plaintiffs’ custom wedding invitations are fungible 

products, like a hamburger or a pair of shoes. They are not. Plaintiffs do 

not sell “identical” invitations to anyone; every custom invitation is 

different and unique. For each invitation, Duka and Koski create different 

celebratory messages, paintings and drawings; they also personally write, 

in calligraphy or custom hand-lettering, the names of the specific bride and 

groom who are getting married. In short, Plaintiffs do not create the same 

wedding invitation for any couple, regardless of whether the wedding 

involves a man and a woman or a same-sex couple. 

¶79 Next, both the City and the dissent contend that while the 

custom invitations themselves may contain protected speech, Plaintiffs’ 

refusal to create them for, and sell them to, a customer for a same-sex 

wedding does not implicate speech. We disagree. The process of creating 

and selling pure speech, which undeniably involves decisions about what 

to create and what not to create, is protected by the First Amendment. 

Coleman, 230 Ariz. at 359 ¶ 26, 360 ¶ 31 (holding that “the process of 

tattooing is expressive activity” and expressly rejecting a distinction 

between a business and the speech it creates); see Brown, 564 U.S. at 792 n.1 

(stating that with respect to protection of free speech, “[w]hether 

government regulation applies to creating, distributing, or consuming 

speech makes no difference.”); Telescope Media, 2019 WL 3979621 at *5, 8 

(rejecting the state’s argument that a public accommodation law only 

regulated wedding videography owners’ conduct, not their speech, and

concluding that although “producing a video requires several actions, that, 

individually, might be mere conduct,” what was relevant for its free speech 

analysis “is that these activities come together to produce finished videos 

that are medi[a] for the communication of ideas.”) (internal quotations 

omitted); Anderson, 621 F.3d at 1060, 1062–63 (holding that like the tattoo 

itself, both the process and business of tattooing are protected under the 

First Amendment); White, 500 F.3d at 954 (holding that “an artist’s sale of 
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Opinion of the Court

27

his original artwork constitutes speech protected under the First 

Amendment” (emphasis added)); see also Riley, 487 U.S. at 795–96 (holding 

that both the contributions subsidizing free speech and the professional 

fundraiser’s solicitation efforts in raising those contributions must be 

examined “as a whole,” and, as a result, the test for “fully protected 

expression” must be applied to both); cf. Simon & Schuster, Inc. v. Members 

of the N.Y. State Crime Victims Bd., 502 U.S. 105, 108, 123 (1991) (holding that 

a statute regulating the income generated from books and other media by 

those accused or convicted of a crime constituted an impermissible 

regulation of speech).

¶80 The City also argues that because Plaintiffs’ refusal affects 

only same-sex couples, their refusal is essentially a proxy for discrimination 

based on sexual orientation. We disagree. The fact that Plaintiffs’ messagebased refusal primarily impacts customers with certain sexual orientations 

does not deprive Plaintiffs of First Amendment protection. For example, in 

Hurley, the Council’s decision to exclude GLIB’s banner effectively 

excluded any other parade participants who may have wanted to express 

their pride in their sexual orientation by marching behind similar banners. 

But because the impact was based on message, not status, it was protected. 

See Hurley, 515 U.S. at 572–76, 580–81; see also Boy Scouts of Am. v. Dale, 530 

U.S. 640, 653–54 (2000) (discussing Hurley and stating “that the parade 

organizers did not wish to exclude the GLIB members because of their 

sexual orientations, but because they wanted to march behind a GLIB 

banner”); cf. Masterpiece Cakeshop, 138 S. Ct. at 1723 (stating that if a wedding 

cake baker “refused to design a special cake with words or images 

celebrating the marriage . . . that might be different from a refusal to sell 

any cake at all” and that “these details might make a difference”). 

¶81 The City’s reliance on Christian Legal Society v. Martinez, 561 

U.S. 661 (2010), and Lawrence v. Texas, 539 U.S. 558 (2003), is misplaced. 

Those cases stand for the proposition that a governmental regulation 

targeting a person’s sexual conduct is, in effect, a law that discriminates

based on a person’s sexual orientation. See Christian Legal Soc’y, 561 U.S. at 

672, 675, 689 (relying on Lawrence and concluding that there was no 

difference between an organization’s exclusion of individuals who engage 

in “unrepentant homosexual conduct” and exclusion of persons based on 

their sexual orientation); Lawrence, 539 U.S. at 583 (O’Connor, J., concurring

in the judgment) (reasoning that “there can hardly be more palpable 

discrimination against a class than making the conduct that defines the class 

criminal” (citation omitted)).
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

28

¶82 Here, Plaintiffs’ objection is based on neither a customer’s 

sexual orientation nor the sexual conduct that defines certain customers as 

a class. Plaintiffs will make custom artwork for any customers, regardless 

of their sexual orientation, but will not, regardless of the customer, make 

custom wedding invitations celebrating a same-sex marriage ceremony. 

Thus, although Plaintiffs’ refusal may, like Hurley, primarily impact samesex couples, their decision is protected because it is not based on a

customer’s sexual orientation. 

¶83 The City also claims that the invitations are the customer’s 

speech, not Plaintiffs’ speech. According to the City, because Plaintiffs 

include the information requested by the customer, they merely serve as a 

scribe, or conduit, for the customer’s speech. 

¶84 This argument is not supported by the record. Duka and 

Koski are involved in every aspect of designing and creating the invitations, 

and they retain substantial (if not complete) artistic control over the 

messages that are expressed in the invitations. See supra ¶¶ 9–14. Clearly, 

Duka and Koski are more than a “scribe” for the customer. 

¶85 But more importantly, the fact that the invitations may 

contain the speech of both Plaintiffs and their customers does not mean that 

Plaintiffs’ speech is unprotected. In Hurley, the Court rejected the 

government’s argument that the parade did not include the personal 

expression of the Council because it incorporated speech originally created 

by others. See 515 U.S. at 569–70. The Court stated that “First Amendment 

protection [does not] require a speaker to generate, as an original matter, 

each item featured in the communication.” Id. at 570; see also Riley, 487 U.S. 

at 794 n.8 (stating that even though “the fund-raiser, not the charity, [was] 

the object of the regulation[, f]ining the fund-raiser” for its solicitation 

efforts to subsidize “speech for the charity has an obvious and direct 

relation to [not only] the charity’s speech,” but also the fundraiser, who 

“has an independent First Amendment interest in the speech”). 

¶86 Likewise, in Coleman, we recognized that “a tattoo reflects not 

only the work of the tattoo artist but also the self-expression of the person 

displaying the tattoo’s relatively permanent image.” 230 Ariz. at 359 ¶ 25. 

Thus, we concluded that a tattoo is the protected speech of both the 

customer and the artist, even when the artist uses a standard message or 

design to create the tattoo. Id. at 358 ¶ 23, 360 ¶ 30; see also Buehrle v. City of 

Key West, 813 F.3d 973, 977 (11th Cir. 2015) (holding that tattoos display the 

message of both the artists and the customer); Anderson, 621 F.3d at 1062

(holding that “[a]s with all collaborative creative processes, both the 
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Opinion of the Court

29

tattooist and the person receiving the tattoo are engaged in expressive 

activity”).

¶87 The City and the dissent make several other arguments, none 

of which is persuasive. For example, both the City and the dissent claim

that, to an objective observer, the custom invitations do not necessarily 

convey a message which they describe as “endorsing” same-sex marriage. 

This argument, however, erroneously applies the Spence-Johnson test for 

expressive conduct to pure speech. See supra ¶¶ 61–63. Whether a third 

party is able to discern any articulable “message” in pure speech, especially 

artwork, is simply irrelevant in terms of whether it is protected under the 

First Amendment. Nothing illustrates this principle more clearly than 

Coleman. There, we held that tattoos are protected pure speech, even 

though, as a practical matter, the message or meaning of many tattoos may 

well be indecipherable to an objective observer. But, because the tattoos 

contained the personal expression of the artist, we held the tattoos were 

protected pure speech. 230 Ariz. at 358–59, 360 ¶¶18, 23–26, 30; see supra 

¶¶ 63, 85–86. 

¶88 In a related argument, the City and the dissent claim that if 

Plaintiffs have any protected speech rights in their invitations, it is limited 

to statements expressly “endorsing” or “supporting” same-sex marriage. 

This argument simply ignores Plaintiffs’ right to refuse to create messages

that “celebrate” a same-sex wedding. Possibly the dissent ignores this right 

because, as the City concedes, every custom invitation Plaintiffs create 

contains “language that is celebratory of the wedding.” Supra ¶ 11. And, 

of course, there is no legal justification for holding that free speech only 

protects messages that “endorse” or “support” same-sex weddings but not 

messages celebrating such weddings. Indeed, as the Supreme Court has 

stated, the right to free speech includes any “medium for the 

communication of ideas” that “may affect public attitudes and behavior in 

a variety of ways, ranging from direct espousal of a political or social 

doctrine to the subtle shaping of thought which characterizes all artistic 

expression.” Burstyn, 343 U.S. at 501. 

¶89 The City also argues that because the invitations are sold for

profit, they are a form of commercial activity, not speech. But the fact that 

Plaintiffs sell the custom invitations for profit has no bearing on their First 

Amendment protection. 

¶90 In a similar vein, the dissent claims that because Plaintiffs 

operate Brush & Nib as a public accommodation, their free speech rights 
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Opinion of the Court

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. 

¶91 The remaining arguments raised by the dissent are equally 

unavailing. For example, the dissent claims that there is no compelled 

speech because “nothing requires Brush & Nib to identify itself as the 

supplier of an invitation or precludes it from disclaiming that its sales 

constitute an endorsement of the beliefs of its customers.” Infra ¶ 201. 

However, the essence of free speech protection is a person’s autonomy over 

what to say and when to say it. See Hurley, 515 U.S. at 576 (stating that 

“protection of a speaker’s freedom would be empty” if “the government 

could require speakers to affirm in one breath that which they deny in the 

next.”) (brackets and citation omitted); Telescope Media, 2019 WL 3979621 at 

*9 (same). We fail to see how Plaintiffs’ autonomy over their speech is 

protected by requiring them to conceal their identity as artists and to 

disclaim any responsibility for creating artwork that contradicts their 

religious beliefs. 

¶92 Additionally, by claiming that we “implausibly characterize[] 

[Plaintiffs’] commercially prepared wedding invitation as ‘pure speech,’” 

infra ¶ 183, the dissent creates a confusing and arbitrary line. For example, 

if, as we concluded in Coleman, a business tattooing images such as skulls, 

snakes, and barbed wire fences on a person’s skin is creating pure speech 

(even if these images are based on standard designs and patterns), how is

Plaintiffs’ creation of original paintings, artwork, and celebratory messages

for their custom invitations not pure speech? See 230 Ariz. at 360 ¶ 30. 

¶93 Accordingly, we conclude that Plaintiffs’ custom wedding 

invitations, and the creation of those invitations, constitute protected pure 

speech.

C. Level of Scrutiny 

¶94 Because the custom invitations are protected pure speech, we 

must determine whether the Ordinance violates Plaintiffs’ free speech 

rights. To make this determination, we must first decide what level of 

scrutiny applies to the Ordinance. This requires us to examine whether the 

Ordinance is a content-neutral or content-based regulation of speech, or 

merely a regulation of conduct. Turner Broad., 512 U.S. at 637, 642 (stating 

that, after concluding cable programmers and operators were engaged in 

protected speech activities, a court must then decide whether the law 

regulates speech in a content-neutral or content-based way, which 

determines the appropriate level of scrutiny). 
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Opinion of the Court

31

¶95 Plaintiffs assert that the Ordinance, as applied by the City, is 

content-based because it compels them to create custom invitations

expressing messages that celebrate same-sex marriage. As a result, 

Plaintiffs contend the Ordinance is subject to strict scrutiny. In contrast, the 

City argues the Ordinance purely regulates discriminatory conduct, not 

speech, and therefore is subject to the rational basis test. 

¶96 First, “laws that by their terms distinguish favored speech 

from disfavored speech on the basis of the ideas or views expressed are 

content based.” Turner Broad., 512 U.S. at 643; see also Reed v. Town of Gilbert, 

135 S. Ct. 2218, 2227 (2015). A law may also be content-based “if its manifest 

purpose is to regulate speech because of the message it conveys.” Turner

Broad., 512 U.S. at 645. Content-based laws must satisfy strict scrutiny. 

Reed, 135 S. Ct. at 2227. Thus, such laws “are presumptively 

unconstitutional and may be justified only if the government proves that 

they are narrowly tailored to serve compelling state interests.” Id. at 2226. 

¶97 Second, content-neutral laws that regulate non-expressive

conduct, and not speech, are subject to the rational basis test. See Coleman, 

230 Ariz. at 358 ¶ 19 (stating that “if the conduct is not ‘sufficiently imbued 

with elements of communication,’ then the regulation need only be 

rationally related to a legitimate governmental interest” (quoting Anderson, 

621 F. 3d at 1059)). 

¶98 Third, content-neutral regulations “that impose an incidental 

burden on speech” are subject to intermediate scrutiny. Turner Broad., 512 

U.S. at 662. Under intermediate scrutiny, a law is justified if: (1) “it furthers 

an important or substantial governmental interest,” (2) “the governmental 

interest is unrelated to the suppression of free expression,” and (3) any 

restriction on speech is incidental and “no greater than is essential” to 

further the government interest. Id. (quoting O’Brien, 391 U.S. at 377). 

¶99 Finally, a facially content-neutral law may, as applied to a 

particular plaintiff, operate as a content-based law. For example, in Holder 

v. Humanitarian Law Project, 561 U.S. 1, 26–28 (2010), a facially contentneutral statute that “generally function[ed] as a regulation of conduct” was, 

as applied to plaintiffs, a content-based statute because “the conduct 

triggering coverage under the statute consist[ed] of communicating a 

message.” See also Masterpiece Cakeshop, 138 S. Ct. at 1741 (Thomas, J., 

concurring) (stating that “[a]lthough public-accommodations laws 

generally regulate conduct, particular applications of them can burden 

protected speech”); cf. Dale, 530 U.S. at 644 (holding that a public 

accommodations law that was applied to force the Boy Scouts, in violation 
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Opinion of the Court

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).

¶100 When a facially content-neutral law is applied by the 

government to compel speech, it operates as a content-based law. Thus, 

laws that “[m]andat[e] speech that a speaker would not otherwise make 

necessarily alters the content of the speech” and are therefore considered 

“content-based regulation[s] of speech.” Riley, 487 U.S. at 795; see Telescope 

Media, 2019 WL 3979621 at *6 (stating that “[l]aws that compel speech or 

regulate it based on its content are subject to strict scrutiny”).

¶101 Hurley is instructive on this issue. In Hurley, the Court 

addressed a public accommodations law that did “not, on its face, target 

speech or discriminate on the basis of its content,” but focused on 

prohibiting “the act of discriminating against individuals in the provision 

of publicly available goods, privileges, and services.” 515 U.S. at 572. 

However, the Court observed that the public accommodations law had 

been applied “in a peculiar way.” Id. Specifically, the law was not being 

applied to “address any dispute about the participation of openly gay, 

lesbian, or bisexual individuals” in the parade. Id. Indeed, like Plaintiffs 

here, the Council “disclaim[ed] any intent to exclude homosexuals as such, 

and no individual member of GLIB claim[ed] to have been excluded from 

parading as a member of any group that the Council ha[d] approved to 

march.” Id. Rather, because GLIB’s banner affected the expressive content 

of their parade, Hurley concluded that the “application of the statute 

produced an order essentially requiring [the Council] to alter the expressive 

content of their parade,” and therefore “had the effect of declaring the 

sponsors’ speech itself to be the public accommodation.” Id. at 572–73. As 

a result, the Court held that the public accommodations law, as applied to 

the Council’s parade, was unconstitutional because it compelled the 

Council “to modify the content of their expression.” Id. at 578; see also Riley, 

487 U.S. at 795 (holding that law was content-based because it 

“[m]andat[ed] speech that a speaker would not otherwise make”); City of 

Cleveland v. Nation of Islam, 922 F. Supp. 56, 59 (N.D. Ohio 1995) (holding 

that city’s public accommodations law as applied to plaintiffs compelled 

speech in violation of the First Amendment); cf. Klein, 410 P.3d at 1069

(recognizing public accommodation law may be “subject to strict scrutiny” 

if it was applied “to require the creation of pure speech or art”). 

¶102 Here, the Ordinance, like other public accommodations laws, 

prohibits businesses from denying access to equal goods and services to 

certain protected groups. Thus, by its terms, the Ordinance is a facially 
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Opinion of the Court

33

content-neutral law that generally targets discriminatory conduct, not 

speech. See Hurley, 515 U.S. at 572; see also Masterpiece Cakeshop, 138 S. Ct. at 

1741 (Thomas, J., concurring) (stating that “public-accommodations laws 

generally regulate conduct”). Additionally, there is no evidence that the 

purpose of the Ordinance is to regulate speech. 

¶103 However, the Ordinance, as applied to Plaintiffs’ custom 

wedding invitations, operates as a content-based law. Under the City’s 

application of the Ordinance, Duka and Koski face the threat of criminal 

prosecution, jail, fines, or closure of their business if they refuse to create 

custom invitations celebrating same-sex weddings. Thus, based on its 

onerous penalties, the Ordinance coerces Plaintiffs into abandoning their 

convictions, and compels them to write celebratory messages with which 

they disagree, such as “come celebrate the wedding of Jim and Jim,” or 

“share in the joy of the wedding of Sarah and Jane.” See Telescope Media, 

2019 WL 3979621 at *6 (holding that state public accommodations law 

operated as a content-based regulation of owners’ wedding video business 

“[b]y treating the [owners’] choice to talk about one topic—opposite-sex 

marriages—as a trigger for compelling them to talk about a topic they 

would rather avoid—same-sex marriages”). In short, like Hurley, the City’s 

application of the Ordinance in this case essentially declares Plaintiffs’ 

“speech itself to be the public accommodation.” Hurley, 515 U.S. at 572–73. 

¶104 Accordingly, because the Ordinance “necessarily alters the 

content” of Plaintiffs’ speech by forcing them to engage in speech they 

“would not otherwise make,” it must survive strict scrutiny. Riley, 487 U.S. 

at 795. 

D. Applying Strict Scrutiny

¶105 Under the strict scrutiny test, the City has the burden of 

showing that the Ordinance (1) furthers a compelling government interest 

and (2) is narrowly tailored to achieve that interest. NIFLA, 138 S. Ct. at 

2371. 

¶106 The Ordinance generally serves the compelling interest of 

ensuring equal access to publicly available goods and services for all 

citizens, regardless of their status. See Jaycees, 468 U.S. at 624 (holding that 

the state’s “strong historical commitment to eliminating discrimination and 

assuring its citizens equal access to publicly available goods and 

services . . . plainly serves compelling state interests of the highest order”). 

However, that interest is not sufficiently overriding as to justify compelling 

Plaintiffs’ speech by commandeering their creation of custom wedding 
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Opinion of the Court

34

invitations, each of which expresses a celebratory message, as the means of 

eradicating society of biases. 

¶107 In Hurley, the Supreme Court rejected any suggestion that a 

public accommodations law could justify compelling speech. The Court 

explained that although the government may prohibit “the act of 

discriminating against individuals in the provision of publicly available 

goods, privileges, and services,” it may not “declar[e] [another’s] speech 

itself to be [a] public accommodation” or grant “protected 

individuals . . . the right to participate in [another’s] speech.” 515 U.S. at 

572–73. The Court observed that it may be argued “that the ultimate point 

of forbidding acts of discrimination toward certain classes is to produce a 

society free of the corresponding biases,” and therefore “[r]equiring access 

to a speaker’s message would thus be not an end in itself, but a means to 

produce speakers free of the biases.” Id. at 578–79. The Court concluded, 

however, that “if this indeed is the point of applying the [public 

accommodations] law to expressive conduct, it is a decidedly fatal 

objective, ” because “[w]hile the law is free to promote all sorts of conduct 

in place of harmful behavior, it is not free to interfere with speech for no 

better reason than promoting an approved message or discouraging a 

disfavored one, however enlightened either purpose may strike the 

government.” Id. at 579; see Telescope Media, 2019 WL 3979621 at *7 (stating 

that “[e]ven antidiscrimination laws, as critically important as they are, 

must yield to the Constitution. And as compelling as the interest in 

preventing discriminatory conduct may be, speech is treated differently 

under the First Amendment”).

¶108 Accordingly, like Hurley, the City has failed to demonstrate 

that the Ordinance, as applied to Plaintiffs’ creation of custom wedding 

invitations, furthers a compelling governmental interest.

¶109 The dissent claims, however, that Hurley is “inapposite” 

because the compelled speech violation there involved the application of a 

public accommodations law to a privately organized parade, not a forprofit public accommodation like Brush & Nib. But Hurley made no such 

distinction. To the contrary, the Court stated that the right to autonomy of 

speech and freedom from compelled speech is “enjoyed by business 

corporations generally,” including “professional publishers.” Hurley, 515 

U.S. at 573–74. Indeed, as noted above, supra ¶ 101, what the Court 

considered “peculiar” was not the application of the public 

accommodations law to a privately organized parade, but application of the

law to compel speech. 515 U.S. at 572–73. Consistent with Hurley, the 

Supreme Court has never limited the compelled speech doctrine to non-
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Opinion of the Court

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).

¶110 Additionally, because the purpose of the Ordinance is to 

regulate conduct, not speech, regulating Plaintiffs’ speech is not narrowly 

tailored to accomplish this goal. As the Court stated in Riley, “government 

regulation of speech must be measured in minimums, not maximums,” and 

that in seeking to promote a valid government interest, it should avoid 

adopting “a prophylactic rule of compelled speech” that is “unduly 

burdensome and not narrowly tailored.” 487 U.S. at 790, 798; see also Pac. 

Gas & Elec. Co., 475 U.S. at 19 (holding that a regulation was not “a narrowly 

tailored means of serving a compelling state interest” because, although

“[t]he State’s interest in fair and effective utility regulation may be 

compelling[,] . . . the State can serve that interest through means that would 

not violate appellant’s First Amendment rights”); NAACP v. Button, 371 

U.S. 415, 433, 438 (1963) (“Because First Amendment freedoms need 

breathing space to survive, . . . [b]road prophylactic rules in the area of free 

expression are suspect. Precision of regulation must be the touchstone in 

an area so closely touching our most precious freedoms.” (citations 

omitted)).

¶111 We therefore conclude that because the Ordinance as applied 

to Plaintiffs’ creation of custom wedding invitations cannot survive strict 

scrutiny, the Ordinance runs afoul of the First Amendment, which 

“necessarily implies” a violation of Plaintiffs’ broader free speech right 

under article 2, section 6 of the Arizona Constitution. Coleman, 230 Ariz. at 

361 ¶ 36 n.5; see also Mountain States, 160 Ariz. at 358.

¶112 The City’s concern that our decision will undermine the antidiscrimination purpose of the Ordinance, or that it will encourage other 

businesses to use free speech as a pretext to discriminate against protected 

groups, is unwarranted. Our holding today is limited to Plaintiffs’ creation 

of one product: custom wedding invitations that are materially similar to 

the invitations contained in the record. Supra ¶ 3. These invitations, unlike 
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Opinion of the Court

36

most commercial products and services sold by public accommodations, 

are unique because they consist of protected pure speech. 

¶113 Nothing in our holding today allows a business to deny access 

to goods or services to customers based on their sexual orientation or other 

protected status. See Telescope Media, 2019 WL 3979621 at *10 (holding that, 

although the state public accommodations law must give way to the 

owners’ free speech rights to refuse to create videos celebrating same-sex

marriage, this holding “leaves intact other applications of the [law] that do 

not regulate speech based on its content or otherwise compel an individual 

to speak.”). Additionally, the dissent’s claim that our holding conflicts with 

cases such as Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), 

and Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941 (D. S.C. 1966), 

aff’d in part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d 

as modified on other grounds, 390 U.S. 400 (1968) (per curiam), is incorrect. 

Those cases did not involve compelled speech, but rather business owners 

who refused to serve African-Americans based solely on their race, a 

practice Plaintiffs expressly condemn, and that our holding clearly neither 

permits nor condones. See Heart of Atlanta, 379 U.S. at 244, 261–62 

(upholding constitutionality of Title II of the Civil Rights Act as applied to 

hotels and motels, against challenges under the commerce, due process, 

and takings clauses and the Thirteenth Amendment); Newman, 256 F. Supp. 

at 944 (holding that Title II of the Civil Rights Act prohibited an owner of a 

restaurant from refusing to serve African-Americans). 

E. Other Jurisdictions

¶114 Finally, the City claims that several decisions from other 

jurisdictions support its application of the Ordinance. These decisions, 

however, are either distinguishable or not persuasive. 

¶115 For example, in Elane Photography, LLC v. Willock, 309 P.3d 53, 

59–60 ¶ 7 (N.M. 2013), the owners of a commercial photography business 

refused, on religious grounds, to provide photography services for a samesex wedding. But there, the court determined that the public 

accommodations law was not being applied to speech, but solely to the 

owners’ conduct in operating their photography business. Id. at 66 ¶¶ 34–

35, 68 ¶¶ 41–43. However, we have—as has the United States Supreme 

Court—expressly rejected this distinction between a business and the 

speech that it creates. Coleman, 230 Ariz. at 360 ¶ 31; supra ¶ 65. 

¶116 Elane Photography also held that the compelled speech 

doctrine did not apply to the owners because they operated their business 
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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. 

¶117 The City’s reliance on Gifford v. McCarthy, 23 N.Y.S.3d 422

(App. Div. 2016), is also misplaced. There, the owners of a wedding venue 

(a farm) refused to rent it to a same-sex couple for their wedding ceremony. 

Id. at 426. Thus, unlike this case, Gifford did not address compelled pure 

speech, but rather conduct in denying access to a location. And, like FAIR, 

the owners could not identify any personal expression intimately connected 

with permitting access to the buildings and open fields on their farm. Id. at 

431–32. 

¶118 State v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017), vacated 

and remanded, Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018) 

(mem.)1, and Klein, 410 P.3d 1051, are distinguishable. In those cases, the 

owners’ activities arguably implicated the expressive conduct doctrine, not 

pure speech. Klein, 410 P.3d at 1065, 1074 (cakes); Arlene’s Flowers, 389 P.3d

at 557–59 ¶¶ 41–47 & n.13 (floral arrangements). And, consistent with our 

conclusion, both cases acknowledged, at least impliedly, that words and 

paintings are forms of pure speech that cannot be compelled. Klein, 410 

P.3d at 1069–70 (stating that the public accommodations law may have been 

 1 We note that on June 6, 2019, the Washington Supreme Court issued 

its opinion after the United States Supreme Court remanded in light of 

Masterpiece Cakeshop, 138 S. Ct. 1719. State v. Arlene’s Flowers, Inc., 441 P.3d 

1203 (Wash. 2019). The court once again affirmed, concluding that “the 

courts resolved this dispute with tolerance” and thus did not run afoul of 

the First Amendment’s requirement that courts must adjudicate such 

claims with religious neutrality. Id. at 1237 ¶ 120; see Masterpiece Cakeshop, 

138 S. Ct. at 1732. The court affirmed its previous holding that the state 

public accommodations law as applied to the flower shop owner did not 

violate the owner’s free speech rights, and its reasoning did not materially 

differ. Arlene’s Flowers, 441 P.3d at 1237–38 ¶ 120. Thus, the 2019 decision 

does not affect our analysis here.
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Opinion of the Court

38

subject to strict scrutiny if the owners had been creating pure speech, such 

as music, poetry, sculpture, and art); Arlene’s Flowers, 389 P.3d at 559 ¶ 47

n.13 (stating that plaintiff’s floral arrangements do not implicate free 

expression rights associated with other “forms of pure expression” like 

tattoos).

¶119 Finally, another case cited by the City, Telescope Media Group

v. Lindsey, 271 F. Supp. 3d 1090 (D. Minn. 2017), was, with respect to the 

issues relevant here, recently reversed in part by the Eighth Circuit Court 

of Appeals. Telescope Media Group, 2019 WL 3979621. 

¶120 In sum, these decisions from other jurisdictions regarding 

wedding vendors are either distinguishable or unpersuasive. We therefore 

hold that the Ordinance’s application to Plaintiffs’ custom wedding 

invitations violates article 2, section 6 of the Arizona Constitution. 

Accordingly, as to Plaintiffs’ creation of that particular product, the trial 

court erred in granting summary judgment in favor of the City and denying 

Plaintiffs’ motion for summary judgment on that claim. 

IV.

¶121 In conjunction with their free speech claim, Plaintiffs also 

allege a free exercise claim under FERA, A.R.S. § 41-1493.01. Like their free 

speech claim, Plaintiffs’ FERA claim is based on compelling a message with 

which they disagree. As Christians, Plaintiffs seek to freely exercise their 

religion by expressing messages that are consistent with their faith, as well 

as refusing to express messages that are inconsistent with their faith. 

However, according to Plaintiffs, the Ordinance violates their free exercise 

protection under FERA because it forces them to create custom wedding 

invitations celebrating same-sex marriages, in contradiction of their 

religious belief that marriage can only be between one man and one 

woman.

¶122 In analyzing Plaintiffs’ free exercise claim, it is important to 

understand the history of FERA. Prior to the United States Supreme Court’s 

decision in Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme 

Court assessed, on a case-by-case basis, the burdens that generally 

applicable laws placed on a person’s free exercise of religion in cases such 

as Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 

(1963). See Smith, 494 U.S. at 881–82, 884–85; see also Burwell v. Hobby Lobby 

Stores, Inc., 573 U.S. 682, 693 (2014); Gonzales v. O Centro Espirita Beneficente 

Uniao do Vegetal, 546 U.S. 418, 424 (2006). Smith, however, changed the 

Court’s free exercise framework by holding that “the Free Exercise Clause 
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Opinion of the Court

39

of the First Amendment does not prohibit governments from burdening 

religious practices through generally applicable laws.” O Centro, 546 U.S. 

at 424.

¶123 In response to Smith, Congress enacted the Religious Freedom 

Restoration Act of 1993 (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488

(codified as amended at 42 U.S.C. §§ 2000bb to 2000bb-4). See O Centro, 546 

U.S. at 424. Congress found that “laws ‘neutral’ toward religion may 

burden religious exercise as surely as laws intended to interfere with 

religious exercise.” Id. at 439 (quoting § 2000bb(a)(2)). As a result, RFRA 

provides that the government may not substantially burden a person’s 

exercise of religion, “even if the burden results from a rule of general 

applicability.” Id. at 424 (quoting § 2000bb-1(a)). 

¶124 Although RFRA remains operative as to the federal 

government, see Guam v. Guerrero, 290 F.3d 1210, 1220–22 (9th Cir. 2002), it 

was declared unconstitutional as to state laws; as a result, no state law claim 

is available under RFRA. See City of Boerne v. Flores, 521 U.S. 507, 534–36 

(1997); see also State v. Hardesty, 222 Ariz. 363, 365 ¶ 7 n.6 (2009). Thus, 

following the Supreme Court’s decision in Boerne, in 1999, the Arizona 

Legislature passed FERA “to protect Arizona citizens’ right to exercise their 

religious beliefs free from undue governmental interference.” Hardesty, 222 

Ariz. at 365 ¶ 8; see 1999 Ariz. Sess. Laws, ch. 332, § 2 (1st Reg. Sess.)

[hereinafter FERA Sess. Law].

¶125 Like RFRA, FERA created a rule based on the Supreme 

Court’s pre-Smith framework. See FERA Sess. Law § 2(A)(6) (stating the test 

“as set forth in the federal cases of Wisconsin v. Yoder, 406 U.S. 205 (1972) 

and Sherbert v. Verner, 374 U.S. 398 (1963), is a workable test for striking 

sensible balances between religious liberty and competing government 

interests”). Consistent with this pre-Smith framework, FERA provides that 

the “government shall not substantially burden a person’s exercise of 

religion even if the burden results from a rule of general applicability.” 

§ 41-1493.01(B); see also Hardesty, 222 Ariz. at 366 ¶ 10; cf. Yoder, 406 U.S. at 

220 (“A regulation neutral on its face may, in its application, nonetheless 

offend the constitutional requirement for governmental neutrality if it 

unduly burdens the free exercise of religion.”).

¶126 Here, Plaintiffs concede the Ordinance is a facially neutral law 

of general applicability. See Hardesty, 222 Ariz. at 365 ¶ 7 n.6; see also Smith, 

494 U.S. at 881–82. As a result, their free exercise claim is based solely on 

FERA. 
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Opinion of the Court

40

A. FERA Analysis

¶127 FERA establishes a two-step process. First, the party raising 

a free exercise claim must prove that: (1) their action or refusal to act is 

motivated by a religious belief, (2) the religious belief is sincerely held, and 

(3) the government’s regulation substantially burdens the free exercise of 

their religious beliefs. Hardesty, 222 Ariz. at 366 ¶ 10; see also A.R.S. § 41-

1493(2); § 41-1493.01(B). If the claimant proves these elements, then the 

burden shifts to the government to show that the law (1) furthers a 

compelling governmental interest and (2) is the “least restrictive means of 

furthering that compelling governmental interest.” § 41-1493.01(C)(1)–(2); 

see also Hardesty, 222 Ariz. at 366 ¶ 10. Because the text and requirements 

of FERA and RFRA are nearly identical, we rely on cases interpreting RFRA 

as persuasive authority in construing the requirements of FERA. Hardesty, 

222 Ariz. at 367 ¶ 13 n.7.

1. Religious Belief

¶128 A free exercise claim under FERA must be based on a 

religious belief. A.R.S. § 41-1493(2) (defining the “[e]xercise of religion” as 

“the ability to act or refusal to act in a manner substantially motivated by a 

religious belief”); Hardesty, 222 Ariz. at 366 ¶ 10; cf. Yoder, 406 U.S. at 215 

(“A way of life, however virtuous and admirable, may not be interposed as 

a barrier to reasonable state regulation . . . if it is based on purely secular 

considerations; to have the protection of the Religion Clauses, the claims 

must be rooted in religious belief.”). To satisfy this element, a claimant need 

not prove that a belief is a central tenet of her faith. § 41-1493(2) (stating 

that under FERA, a claimant is not required to show that one’s religious 

exercise “is compulsory or central to a larger system of religious belief”).

¶129 Here, it is undisputed that Plaintiffs’ “refusal to act,” that is,

declining to express messages in their custom invitations celebrating samesex weddings, is substantially motivated by Duka and Koski’s religious 

belief that marriage is only between a man and a woman. 

2. Sincerity of Belief

¶130 The City also concedes that Duka and Koski’s religious beliefs 

about same-sex marriage are sincere. Duka and Koski base their beliefs on 

the Bible and the shared traditions and practices of Christians. Cf. Yoder, 

406 U.S. at 216 (“[T]he traditional way of life of the Amish is not merely a 

matter of personal preference, but one of deep religious conviction, shared 

by an organized group, and intimately related to daily living. That the Old 

Order Amish daily life and religious practice stem from their faith is shown 
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Opinion of the Court

41

by the fact that it is in response to their literal interpretation of the Biblical 

injunction from the Epistle of Paul to the Romans, ‘be not conformed to this 

world.’”). 

3. Substantial Burden

¶131 Once a court determines that a party has a sincere religious 

belief, it must examine whether the government’s regulation imposes a 

substantial burden on the party’s free exercise of that belief. Hardesty, 222 

Ariz. at 366 ¶ 10; see also A.R.S. §§ 41-1493(2),-1493.01(B). Not every burden 

is substantial; FERA provides that “trivial, technical or de minimis 

infractions” do not substantially burden a person’s free exercise of religion. 

§ 41-1493.01(E); see Navajo Nation v. United States Forest Service, 535 F.3d 

1058, 1070 (9th Cir. 2008) (stating that under RFRA, a government 

regulation that merely offends a person’s “religious sensibilities” is not a 

substantial burden of free exercise of religion). Thus, under the pre-Smith

framework adopted by FERA, a substantial burden exists only when

government action “forces” individuals “to choose between following the 

precepts of [their] religion” and receiving a government benefit, Sherbert, 

374 U.S. at 404, or it “compels them, under threat of criminal sanction, to 

perform acts undeniably at odds with fundamental tenets of their religious 

beliefs,” Yoder, 406 U.S. at 218; see also Navajo Nation, 535 F.3d at 1069–70 

(applying the substantial burden framework set forth in Yoder and Sherbert 

to RFRA, and observing that a threat of civil sanctions may also constitute 

a substantial burden). 

¶132 Yoder is instructive on this issue. In Yoder, members of the Old 

Order Amish were convicted of violating Wisconsin’s compulsory school 

attendance law because they refused to send their children to high school 

after completing eighth grade. 406 U.S. at 207–08. The Amish parents 

believed that sending their children to a public high school “was contrary 

to the Amish religion and way of life.” Id. at 209. The Supreme Court 

concluded that the statute placed a substantial burden on the parents’ free 

exercise of religion. Id. at 218. The Court reasoned that the statute 

“affirmatively compel[led] [Amish parents], under threat of criminal 

sanction, to perform acts undeniably at odds with fundamental tenets of 

their religious beliefs.” Id.; see also id. at 237 (Stewart, J., concurring) (“This 

case involves the constitutionality of imposing criminal punishment upon 

Amish parents for their religiously based refusal to compel their children 

to attend public high schools. Wisconsin has sought to brand these parents 

as criminals for following their religious beliefs, and the Court today rightly 

holds that Wisconsin cannot constitutionally do so.”); cf. Smith, 494 U.S. 

at 898 (O’Connor, J., concurring in the judgment) (“A State that makes 
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Opinion of the Court

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))).

¶133 Similarly, in Hobby Lobby, the Supreme Court addressed 

whether a Health and Human Services (“HHS”) regulation substantially 

burdened the free exercise of religion under RFRA for the owners of three 

for-profit corporations. 573 U.S. at 688–91. The owners, who opposed 

abortion on religious grounds, objected to the regulation because it required 

them to provide employee health care coverage for certain methods of birth 

control. Id. at 691. Because the owners viewed these birth control 

procedures as a form of abortion, they refused to comply with the 

regulation. Id. at 691, 701, 703. However, by violating the regulation, the 

owners faced severe financial penalties and assessments which, in some 

instances, totaled hundreds of millions of dollars. Id. at 720. 

¶134 The Court concluded that these financial sanctions and 

penalties clearly imposed a substantial burden on the owners’ exercise of 

their religious beliefs. Id. at 726. Indeed, although the owners were not 

required to actively participate in the objectionable procedures (all of those 

decisions were made independently by a female employee upon consulting 

with her physician), the Court held that “[b]ecause the contraceptive 

mandate forces them to pay an enormous sum of money . . . if they insist on 

providing insurance coverage in accordance with their religious beliefs, the 

mandate clearly imposes a substantial burden on those beliefs.” Id.; cf. Holt 

v. Hobbs, 135 S. Ct. 853, 860, 862–63 (2015) (holding that under the Religious 

Land Use and Institutionalized Persons Act (“RLUIPA”), which “mirrors” 

RFRA in the context of free exercise claims made by prisoners, the 

Department of Corrections’ grooming policy, which threatened a prisoner 

with disciplinary action if he grew a beard as dictated by his Muslim faith, 

substantially burdened the prisoner’s free exercise of religion).

¶135 Here, the coercion the Ordinance places on Plaintiffs to 

abandon their religious belief is unmistakable. The Ordinance, as applied 

by the City, presents Plaintiffs with a stark choice. On one hand, they can 

choose to forsake their religious convictions and create wedding invitations 

celebrating same-sex marriage. But, on the other hand, if they choose to 

remain faithful to their beliefs and violate the Ordinance by refusing to 

make such invitations, they face severe civil and criminal sanctions. Indeed, 

for every day Duka and Koski are in violation of the Ordinance, they may 

be ordered to serve up to six months in jail. See §§ 1-5; 18-4(B); 18-7(A).
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Opinion of the Court

43

Thus, for example, if Plaintiffs post their proposed Statement on their

website for a month, Duka and Koski could face up to fifteen years in jail. 

See id. Even if placed on probation, Plaintiffs face a possible fine of $2,500; 

for a continuing violation, the fine could be tens of thousands of dollars. Id.

§§ 1-5, 18-4(B). Alternatively, the City has the authority under the 

Ordinance’s nuisance provision to simply shut down Duka and Koski’s

business altogether. See id. § 1-5. 

¶136 Despite the clear coercive effect of the Ordinance, the City 

claims that requiring Duka and Koski to create custom invitations for samesex weddings does not place any burden on their exercise of their religious 

beliefs. Specifically, the City argues that Duka and Koski’s “religion says 

nothing about making wedding invitations,” and the act of creating a 

wedding invitation is too attenuated from their beliefs about marriage to 

place any burden, much less a substantial burden, on their free exercise of 

religion. 

¶137 This argument is neither novel nor new. The United States 

Supreme Court rejected precisely the same argument in Hobby Lobby. 

There, in addressing the owners’ RFRA claim, the Court stated that the 

government’s main argument was “that the connection between what the 

[owners] must do (provide health-insurance coverage for four methods of 

contraception that may operate after the fertilization of an egg) and the end 

that they find to be morally wrong (destruction of an embryo) is simply too 

attenuated.” 573 U.S. at 723. The Court stated, however, that “[t]his 

argument dodges the question” of whether the regulation imposed “a 

substantial burden on the ability of the [owners] to conduct business in 

accordance with their religious beliefs.” Id. at 724. Rather, the Court observed 

that the government’s argument raised “a very different question that the 

federal courts have no business addressing”: “whether the religious belief 

asserted in a RFRA case is reasonable.” Id. 

¶138 In rejecting this “reasonableness” argument, the Court 

focused on the fact that the owners “believe that providing the coverage 

demanded by the HHS regulations is connected to the destruction of an 

embryo in a way that is sufficient to make it immoral for them to provide 

the coverage.” Id. The Court stressed that in addressing whether the 

regulation posed a substantial burden on the owners’ religious beliefs, its 

“narrow function” was not to determine whether the owners’ beliefs were 

“flawed,” but whether “the line drawn [by the owners] reflects ‘an honest 

conviction.’” Id. at 724–25 (alteration in original) (citation omitted). Thus, 

with this framework in mind, the Court concluded that the regulation

imposed a substantial burden on the owners’ free exercise of religion 
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Opinion of the Court

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, 138 S. Ct. at 1731 (stating 

that the government is “obliged under the Free Exercise Clause to proceed 

in a manner neutral toward and tolerant of” a person’s religious beliefs, and 

“[i]t hardly requires restating that government has no role in deciding or 

even suggesting whether the religious ground for [a person’s] consciencebased objection is legitimate or illegitimate”); cf. Dale, 530 U.S. at 651, 653 

(stating that “it is not the role of the courts to reject a group’s expressed 

values because they disagree with those values or find them internally 

inconsistent,” and therefore, “[a]s we give deference to an association’s 

assertions regarding the nature of its expression, we must also give 

deference to an association’s view of what would impair its expression”). 

¶139 Thus, based on Hobby Lobby, we reject the City’s invitation to 

assess the reasonableness of Duka and Koski’s sincerely held religious 

beliefs. This is not a proper consideration in determining whether the 

Ordinance places a substantial burden on their right to free exercise of 

religion. 

¶140 By adhering to Hobby Lobby, we do not, as the dissent claims, 

eliminate the substantial burden element from the FERA analysis. Rather, 

we follow the well-established rule that courts may not, under the guise of 

conducting a substantial burden analysis, examine the reasonableness of a 

person’s belief. 573 U.S. at 724. This deference does not, of course, dispose 

of the court’s legal duty under FERA to determine whether a law places a 

substantial burden on a person’s religious belief. As we note above, that 

element is satisfied here because the Ordinance coerces Plaintiffs into 

violating their belief. Supra ¶¶ 131–35. 

¶141 However, the dissent seeks to evade the coercive effect of the 

Ordinance by attempting to refocus the substantial burden analysis on 

whether Plaintiffs’ belief is substantial. This argument, however, is nothing 

more than a repackaging of the City’s reasonableness argument. For 

example, the dissent contends that Plaintiffs’ adherence to their belief is 

flawed and inconsistent. Infra ¶¶ 208-09. However, by making this 

argument the dissent crosses the line drawn by Hobby Lobby, which 

prohibits a court from examining the alleged flaws or inconsistencies of a 

person’s beliefs while engaging in a substantial burden analysis. 573 U.S. 

at 724–25. 
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Opinion of the Court

45

¶142 The dissent also asserts that Plaintiffs have failed to identify

any “fundamental tenet” of their faith prohibiting them from creating the 

subject invitations. Of course, under FERA, Plaintiffs are not required to 

show that their belief is a “fundamental” tenet of their faith. A.R.S. § 41-

1493(2). Moreover, this argument ignores the record, which clearly shows 

that Plaintiffs do have a fundamental, sincere belief that they cannot, 

consistent with their faith, create custom wedding invitations celebrating a 

same-sex marriage. See supra ¶¶ 15–16. 

¶143 Next, citing Hobby Lobby as authority, the dissent claims that 

no substantial burden exists here because the Ordinance does not require 

Plaintiffs to participate in same-sex weddings. Infra ¶ 226, 228 (Timmer, J., 

dissenting). However, the dissent’s reliance on Hobby Lobby is misplaced. 

There, the HHS regulation did not require the owners to actually attend or 

perform an abortion, nor did it require them to approve or be involved in 

an employee’s decision to undergo such a procedure; rather, the Court 

determined that simply providing insurance coverage for these procedures 

was sufficient to impose a substantial burden. See supra ¶ 134. Here, by 

comparison, the Ordinance compels similar, if not greater “participation” 

from Plaintiffs in a same–sex wedding. For example, the Ordinance forces

Plaintiffs to personally write, paint and create artwork celebrating a same–

sex wedding. Additionally, it requires them to design and create invitations 

that enable and facilitate the attendance of guests at a same–sex wedding. 

Cf. Masterpiece Cakeshop, 138 S. Ct. at 1744 (Thomas, J., concurring in part 

and in the judgment) (“Forcing Phillips to make custom wedding cakes for 

same-sex marriages requires him to, at the very least, acknowledge that 

same-sex weddings are ‘weddings’ and suggest that they should be 

celebrated—the precise message he believes his faith forbids.”).

¶144 Finally, the dissent argues that the Ordinance “itself” does not 

place a substantial burden on Plaintiffs’ belief. Infra ¶ 223 (Timmer, J., 

dissenting). Specifically, the dissent claims that the Ordinance does not 

prohibit Plaintiffs from expressing their religious beliefs about same–sex 

marriage, and, therefore, the penalty provisions of the Ordinance are 

irrelevant to the substantial burden analysis. Id. 

¶145 This argument simply reasserts the dissents’ position that the 

Ordinance only applies to discriminatory conduct, not speech. We 

disagree. The Ordinance, as applied by the City, compels Plaintiffs to 

express a message celebrating same–sex marriage that violates their 

religious belief. If they refuse to abandon their belief, they violate the 

Ordinance and face the threat of severe criminal and civil sanctions. This is 

the very definition of a substantial burden. 
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Opinion of the Court

46

¶146 Accordingly, as applied to Plaintiffs’ custom wedding 

invitations, the Ordinance substantially burdens the free exercise of Duka 

and Koski’s religious beliefs. 

B. City’s Burden

¶147 Because Plaintiffs have satisfied their burden under FERA, 

the City bears the burden of showing that the Ordinance (1) furthers a 

compelling governmental interest, and (2) is the least restrictive means to 

further that compelling interest. A.R.S. § 41-1493.01(C); Hardesty, 222 Ariz. 

at 366 ¶ 10.

¶148 As noted above, the Ordinance generally serves the 

compelling purpose of eradicating discrimination in the provision of 

publicly available goods and services. Supra ¶ 106. However, like 

Plaintiffs’ rights to free speech, that interest is not sufficiently overriding to 

force Plaintiffs to create custom wedding invitations celebrating same-sex 

marriage in violation of their sincerely held religious beliefs. 

¶149 We also conclude that the Ordinance’s application to 

Plaintiffs in this case is not the least restrictive means of furthering its 

asserted governmental interest. Under the least restrictive means test, the 

government must “show[] that it lacks other means of achieving its desired 

goal without imposing a substantial burden on the exercise of religion by 

the objecting part[y].” Hobby Lobby, 573 U.S. at 728. To prove this element, 

the government is not required to show that no less restrictive means is 

“conceivable,” but only that the proposed alternatives are “ineffective or 

impractical.” Hardesty, 222 Ariz. at 368 ¶ 21. This is a focused inquiry, 

requiring the government to “establish that applying the law in the 

particular circumstances is the least restrictive means.” Id. at 367 ¶ 14 

(emphasis added). As part of this analysis, a court must “scrutinize[] the 

asserted harm of granting specific exemptions to particular religious 

claimants.” O Centro, 546 U.S. at 431; see also Holt, 135 S. Ct. at 864 (stating 

that under RFRA, the government must prove that denying a religious 

“exemption is the least restrictive means of furthering a compelling 

governmental interest”). This includes considering the harm an exemption 

may have on benefits the law confers on third parties. Hobby Lobby, 573 U.S. 

at 729 n.37.

¶150 The City has not carried its heavy burden. Applying the 

Ordinance to regulate Duka and Koski’s personal expression of their 

religious beliefs in their custom wedding invitations is not the least 

restrictive means to accomplish the goal of the Ordinance. Rather, as we 
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Opinion of the Court

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. 

¶151 Both the City and the dissent argue, however, that to 

effectively deter discriminatory conduct, the Ordinance must be uniformly 

applied to all businesses and all products. According to the dissent, this 

goal cannot be achieved by allowing “ad hoc exemptions for businesses 

based on their owners’ beliefs.” Infra ¶ 211. 

¶152 In considering a possible exemption for Plaintiffs’ invitations, 

the City and the dissent employ an incorrect, one-sided least restrictive 

means analysis. As the dissent correctly notes, Hobby Lobby states that, in 

considering an exemption, a court must consider the impact of granting an 

exemption on third parties. Id. 573 U.S. at 729 n.37. But the dissent 

mistakenly suggests that Hobby Lobby granted an exemption only because it 

had zero impact on affected third parties—specifically, female employees 

of the owners’ companies. See Hobby Lobby, 573 U.S. at 693. Rather, the 

Court simply noted that, in weighing the government’s compelling interest 

against the free exercise rights of the owners, it considered the economic 

impact on female employees. Id. at 692–93, 728–32 & n.37. Of course, no 

one could argue that the impact of granting the exemption in Hobby Lobby 

was “zero”; after all, granting the exemption effectively forced any female 

employee who wished to obtain health care coverage for certain birth 

control procedures to obtain their own private insurance. Moreover, 

logically speaking, if the least restrictive means test only permits 

exemptions that have “zero” impact on the government’s compelling 

interest, it is difficult, if not impossible, to conceive of any exemption that 

could satisfy the test. 

¶153 But the more fundamental flaw in the dissent’s approach is 

that, by focusing exclusively on the impact an exemption might have on 

same-sex couples, it ignores the court’s duty under FERA to balance the free 

exercise rights of an individual against the government’s compelling 

interest. See 1999 Sess. Laws at 1770, § 2(A)(6) (stating that FERA adopted 

the pre-Smith framework, in part, because it provides “a workable test for 

striking sensible balances between religious liberty and competing 

government interests”). Indeed, in applying RFRA, Hobby Lobby used the 

same balancing approach in determining whether the owners were entitled 

to an exemption. See id., 573 U.S. at 728–32, 735–36; see also O Centro, 546 

U.S. at 434, 435–36 (stating that under RFRA, courts must consider whether 

religious exemptions are required for generally applicable laws). 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

48

¶154 Here, under the dissent’s least restrictive means test, the 

City’s nondiscrimination purpose simply overrides all conflicting 

individual rights and liberties. That, of course, is not the law. As Hobby 

Lobby noted, “[e]ven a compelling interest may be outweighed in some 

circumstances by another even weightier consideration.” Id. at 727. 

Likewise, Masterpiece Cakeshop did not hold that public accommodations 

laws were immune from free exercise exemptions; rather, it clearly

contemplated that some exemptions, if narrowly confined, were 

permissible. Masterpiece Cakeshop, 138 S. Ct. at 1723–24, 1727–29. And while 

we must, in determining whether Plaintiffs’ invitations are entitled to an 

exemption from the Ordinance, consider the impact on the City’s 

nondiscrimination purpose, we must also consider the effect of compelling 

Plaintiffs to create these invitations. See Janus, 138 S. Ct. at 2464 (stating that 

“[w]hen speech is compelled . . . additional damage is done” because it 

forces “free and independent individuals to endorse ideas they find 

objectionable[, which] is always demeaning,” and coerces individuals “into 

betraying their convictions.”). 

¶155 Additionally, if it is true, as the City and the dissent claim,

that uniform application of the Ordinance is necessary to achieve its

nondiscrimination goal, then no business or organization should be exempt 

from its provisions. However, pursuant to § 18-4(B)(4)(a), the Ordinance’s

prohibitions regarding discrimination based on sexual orientation “shall 

not apply to bona fide religious organizations” or “be construed to prohibit 

or prevent” them “from taking any action which is calculated by the 

organization to promote the religious principles for which it is established 

or maintained.” In short, the Ordinance allows some organizations, based 

on their religious beliefs, to discriminate against individuals based on their 

sexual orientation, the very thing the Ordinance seeks to eliminate. See 

Reed, 135 S. Ct. at 2232 (stating that a law does not further a compelling state 

interest when it permits exemptions that “leave[] appreciable damage to 

that supposedly vital interest unprohibited” (citation omitted)); cf. O Centro, 

546 U.S. at 423, 432–37 (stating that the existence of a religious exemption 

for the sacramental use of peyote, a prohibited drug, belied the 

government’s contention that exempting a religious sect’s sacramental use 

of hoasca would undermine the effectiveness of federal drugs laws). 

¶156 Here, the City has neither shown nor argued that allowing an

exemption for religious organizations has undercut the effectiveness of the 

Ordinance. Of course, the City could “demonstrate a compelling interest in 

uniform application” of the Ordinance “by offering evidence that granting 

the requested religious accommodations would seriously compromise its 

ability to administer the program.” O Centro, 546 U.S. at 435. But the City 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

49

has made no effort to do so here. Rather, it simply asserts, with no evidence,

that granting an exemption for Plaintiffs’ custom invitations would

encourage other businesses to use FERA as a tool to discriminate against 

customers based on their sexual orientation, race and gender.2

¶157 The City’s speculation about what might happen is not 

evidence. Indeed, such “slippery slope” arguments not grounded in fact 

were rejected in Hobby Lobby. There, the government similarly argued that 

granting a religious exemption to the business owners “will lead to a flood 

of religious objections regarding a wide variety of medical procedures and 

drugs, such as vaccinations and blood transfusions.” Hobby Lobby, 573 U.S. 

at 732. Rejecting that argument, the Court stated that the government 

“made no effort to substantiate this prediction,” and there was no “evidence 

that any significant number of employers sought exemption, on religious 

grounds, from any of [the] coverage requirements other than the 

contraceptive mandate.” Id. at 732–33.

¶158 Like Hobby Lobby, we find the same lack of evidence here. It 

is not our role to speculate about whether exempting Duka and Koski’s 

creation of custom wedding invitations would cause other businesses to 

seek a religious exemption from the Ordinance. We have no evidence in 

the record to make a conclusion one way or another. Absent such evidence, 

all we can do is enforce FERA as written, under the standards it provides. 

Cf. id. at 735–36 (“The dissent worries about forcing the federal courts to 

apply RFRA to a host of claims made by litigants seeking a religious 

exemption from generally applicable laws, and the dissent expresses a 

desire to keep the courts out of this business . . . . The wisdom of Congress’s 

judgment on this matter is not our concern. Our responsibility is to enforce 

RFRA as written, and under the standard that RFRA prescribes . . . .”).

¶159 Here, like the religious organizations exempt under the 

Ordinance, Brush & Nib was established, and is operated, to promote 

certain religious principles. Although Plaintiffs operate Brush & Nib for 

profit, this does not mean that they cannot, like a religious organization or 

church, also further their “religious objectives as well.” Id. at 712. And the 

fact Plaintiffs operate for profit has no bearing on their protection under 

 2 We note that the Ordinance’s exemption could not be used even by 

a bona fide religious organization, let alone a business owner, to refuse 

service based on “race, color, religion, sex, national origin . . . or disability”; 

the exemption, by its terms, only applies to marital status, sexual 

orientation, and gender identity or expression. See PCC § 18-4(B)(2), 18-

4(B)(4).
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

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). 

¶160 Although the dissent claims our decision sanctions statusbased discrimination, that mischaracterizes our analysis and our holding. 

Our decision today is limited to one, very unique product (Plaintiffs’ 

custom wedding invitations), and the protection afforded this product is 

based solely on the celebratory messages Plaintiffs convey (or refuse to 

convey), not the race, gender or sexual orientation of the customer. Supra 

¶¶ 14, 16, 76. Indeed, Plaintiffs have never asserted that their faith 

precludes them from serving same-sex couples, or that it requires them to 

refuse service to a customer based on their sexual orientation. Rather, as 

noted above, Plaintiffs consistently testified that they are willing to serve 

all customers, regardless of their status. But what they refuse to do is 

violate their religious convictions by creating a message for anyone that 

celebrates same-sex marriage. 

¶161 Finally, FERA itself creates several barriers to any business 

owners seeking to use their religious beliefs to engage in status-based 

discrimination. For example, such an owner would have to prove that his 

religious belief is sincere, and not simply a pretext for engaging in illegal 

discrimination based on status. Our courts are well-equipped to address 

questionable or frivolous assertions of religious beliefs where the evidence 

shows that such a belief is being used for purely pretextual purposes. Cf. 

Hobby Lobby, 573 U.S. at 718 (stating that “the scope of RLUIPA shows that 

Congress was confident of the ability of the federal courts to weed out 

insincere claims”); Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (stating 

that RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s 

professed religiosity”). 

¶162 More importantly, even if a business owner could somehow 

prove that his status-based religious belief is sincere, and that the regulation 

imposed a substantial burden on that belief, FERA allows the City to show 

that any burden on such a belief is justified by the anti-discrimination 

purpose of the Ordinance. And, because an exemption based on statusbased discrimination directly undermines the purpose of the Ordinance, 

uniform prohibition of such business practices would be the least restrictive 

means to prevent discrimination. See Hardesty, 222 Ariz. at 364 ¶¶ 1, 3, 368–
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

51

69 ¶¶ 19–23 (denying defendant’s request for an exemption from a statute 

making use of marijuana illegal, because based on defendant’s asserted 

religious belief in unlimited use of marijuana, including using marijuana 

while driving, granting an exemption would undermine the public safety 

purpose of the statute); cf. Masterpiece Cakeshop, 138 S. Ct. at 1727–28 (stating 

that under the Colorado public accommodations law “religious and 

philosophical objections to gay marriage are protected views and in some 

instances protected forms of expression,” but that “it is a general rule that 

such objections do not allow business owners and other actors . . . to deny 

protected persons equal access to goods and services”). 

¶163 We therefore conclude that the Ordinance, as applied to 

Plaintiffs’ creation of their custom wedding invitations, places a substantial 

burden on their right to free exercise of religion. Additionally, the City has 

failed to show that applying the Ordinance to Plaintiffs’ invitations is the 

least restrictive means to achieve its asserted compelling interest. Thus, the 

trial court erred in denying Plaintiffs’ motion for summary judgment on 

their FERA claim and instead granting summary judgment in favor of the 

City on that claim. 

Conclusion

¶164 Freedom of speech and religion requires tolerance of different 

beliefs and points of view. In a diverse, pluralistic society such as ours, 

tolerance of another’s beliefs and point of view is indispensable to the 

survival and growth of our democracy. See Palko v. Connecticut, 302 U.S. 

319, 326–27 (1937) (stating that freedom of thought and expression “is the 

matrix, the indispensable condition, of nearly every other form of 

freedom”), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 

(1969). For this reason, we have always recoiled at those governments and 

societies that repress or compel ideas or religious beliefs. See Thomas v. 

Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring) (“The very purpose 

of the First Amendment is to foreclose public authority from assuming a 

guardianship of the public mind through regulating the press, speech, and 

religion.”). 

¶165 It is the duty of the judiciary to enforce the text of our 

constitution and statutes and the fundamental rights protected within 

them. Enforcing and protecting these rights preserves “individual freedom 

of mind in preference to officially disciplined uniformity for which history 

indicates a disappointing and disastrous end.” Barnette, 319 U.S. at 637. 

And while our dissenting colleagues may view a result contrary to our 

holding today as more progressive, “it is not forward thinking to force 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

Opinion of the Court

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, 515 U.S. at 579.

¶166 To conclude, we hold that the Ordinance, as applied to 

Plaintiffs’ custom wedding invitations, and the creation of those invitations, 

unconstitutionally compels speech in violation of the Arizona 

Constitution’s free speech clause. See Appendix 1. We further conclude 

that the Ordinance, as applied to Plaintiffs’ creation of custom wedding 

invitations, substantially burdens Plaintiffs’ free exercise of religion, and 

that the City has not demonstrated that its application of the Ordinance to 

Plaintiffs in this way is the least restrictive means of achieving its asserted 

interest in eradicating discrimination. Id. Thus, the application of the 

Ordinance in this case violates Plaintiffs’ free exercise rights under FERA, 

§ 41-1493.01. Finally, because Plaintiffs’ intended refusal to make custom 

wedding invitations celebrating a same-sex wedding is legal activity under 

Arizona’s free speech clause and FERA, Plaintiffs are entitled to post a 

statement, consistent with our holding today, indicating this choice.

¶167 We therefore vacate the court of appeals’ opinion except for 

paragraphs 33 through 45 and 51 through 53,reverse the trial court’s rulings 

on summary judgment, and direct entry of summary judgment in favor of 

Plaintiffs with respect to the creation of custom wedding invitations that 

are materially similar to the invitations in the record. See Appendix 1. 

further, because Plaintiffs have prevailed against the City on their FERA 

claim, upon compliance with ARCAP 21, they are entitled to a mandatory

award of attorney fees under A.R.S. § 41-1493.01(D) only as to those fees 

incurred in this Court. Id. (“A party who prevails in any action to enforce 

this article against a government shall recover attorney fees and costs.”). 

We deny Plaintiffs’ remaining fee requests.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BOLICK, Concurring

53

BOLICK, J., concurring.

¶168 I join the Court’s analysis and write separately to further 

examine the state constitutional provision under which this challenge was 

brought.

¶169 Article 2, section 6 of the Arizona Constitution provides in 

full: “Every person may freely speak, write, and publish on all subjects, 

being responsible for the abuse of that right.” That language is majestic in 

its sweep, and we have consistently found that it provides greater 

protection for speech than the First Amendment. See, e.g., Coleman v. City of 

Mesa, 230 Ariz. 352, 361 ¶ 36 n.5 (2012) (“Article 2, Section 6 of Arizona’s 

Constitution . . . is in some respects more protective of free speech rights 

than the First Amendment.”); State v. Stummer, 219 Ariz. 141, 143 ¶ 17 (2008) 

(“We have also stated that Article 2, Section 6 has ‘greater scope than the 

first amendment.’” (citation omitted)); Mountain States Tel. & Tel. Co. v. Ariz. 

Corp. Comm’n, 160 Ariz. 350, 356 (1989) (“[W]e apply here the broader 

freedom of speech clause of the Arizona Constitution.”). Even when the 

parties do not fully develop their argument on the Arizona constitutional 

provision, where it constitutes a question on which we granted review, we 

are duty-bound to construe it. Ariz. Const. art. 2, § 32 (“The provisions of 

this Constitution are mandatory, unless by express words they are declared 

to be otherwise.”); Stummer, 219 Ariz. at 140 ¶ 1, 142 ¶ 14; Mountain States, 

160 Ariz. at 354 (“Because the parties explicitly invoked Arizona’s 

constitution, we must implement whatever protection it extends.”).

¶170 As ours is the forty-eighth state, the framers of our 

constitution had abundant lessons from which to draw in framing its 

provisions. Former Chief Justice Rebecca Berch explained that our 

constitution’s framers “had the opportunity to ponder more than 100 years 

of United States history before penning their own constitution, allowing 

them to adopt or adjust provisions employed by the federal government or 

other states to meet Arizona’s needs.” Rebecca White Berch et al., 

Celebrating the Centennial: A Century of Arizona Supreme Court Constitutional 

Interpretation, 44 Ariz. St. L.J. 461, 468 (2012). As our constitution’s framers 

chose to secure free speech with language different and more protective 

than the First Amendment, our constitutional oath requires us to invest 

those words with their fully intended meaning.

¶171 In applying state constitutional provisions, federal 

constitutional jurisprudence addressing the issue at hand is always relevant 

because the United States Constitution sets the base-line for the protection 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BOLICK, Concurring

54

of individual liberties. Petersen v. City of Mesa, 207 Ariz. 35, 37 ¶ 8 n.3 (2004); 

State v. Sieyes, 225 P.3d 995, 1003 ¶ 28 (Wash. 2010); see City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982); PruneYard Shopping Ctr. v. 

Robins, 447 U.S. 74, 81 (1980). But “a state court is entirely free to read its 

own State’s constitution more broadly than th[e United States Supreme] 

Court reads the Federal Constitution.” City of Mesquite, 455 U.S. at 293. The 

U.S. Constitution “sets a floor for the protection of individual rights. . . . 

Other federal, state, and local government entities generally possess 

authority to safeguard individual rights above and beyond the rights 

secured by the U.S. Constitution.” American Legion v. American Humanist 

Ass’n, 139 S.Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring) (citing J. 

Sutton, 51 Imperfect Solutions (2018)); Brennan, “State Constitutions and the 

Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)).

¶172 Where the language of a state constitutional provision is 

identical or similar to its federal counterpart, we should examine how the 

provision was interpreted by the federal courts at the time it was adopted 

by the State of Arizona to determine its meaning. See Turken v. Gordon, 223 

Ariz. 342, 346 ¶ 10 (2010); Moore v. Chilson, 26 Ariz. 244, 255 (1924) (applying 

prior-construction canon); Antonin Scalia & Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts 322–23 (2012) (discussing prior-construction 

canon). But where the language is different, we must presume it was 

intended to have a different meaning from its federal counterpart and 

determine how the different language affects the constitutional provision’s 

meaning. Cf. State v. Marcus, 104 Ariz. 231, 233–34 (1969) (noting “it is a 

general principle that the most recent Act controls over the earlier Act” 

when laws are inconsistent); Scalia & Garner, supra, at 256 (“[A] change in 

the language of a prior statute presumably connotes a change in 

meaning.”).

¶173 In so doing, if the meaning of the language is clear, we should 

enforce it without resorting to secondary interpretative methods. Jett v. City 

of Tucson, 180 Ariz. 115, 119 (1994). Where the meaning is unclear, we 

should seek to determine the intent of the framers as best we can from the 

records of our constitution and other reliable historical sources. Brewer v. 

Burns, 222 Ariz. 234, 244 (2009); Fain Land & Cattle Co. v. Hassell, 163 Ariz. 

587, 595 (1990); Boswell v. Phx. Newspapers, Inc., 152 Ariz. 9, 12 (1986); 

McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290 (1982). Finally, where our 

provision is similar to provisions in other state constitutions, we may look 

to court decisions and other historical records from those other states prior 

to our constitution’s ratification to help determine the framers’ intent in 

adopting them. See, e.g., Turken, 223 Ariz. at 345–46 ¶¶ 10–11; Mountain 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BOLICK, Concurring

55

States, 160 Ariz. at 355. In construing the provisions of our Declaration of 

Rights, we always must be mindful of the admonition that government is 

“established to protect and maintain individual rights.” Ariz. Const. art. 2, 

§ 2.

¶174 The words of article 2, section 6 and the First Amendment are 

very different. The First Amendment provides in relevant part that 

“Congress shall make no law . . . abridging the freedom of speech . . . .” It 

is phrased as a constraint on government power and is applied through the 

Fourteenth Amendment to the states. Gitlow v. New York, 268 U.S. 652, 666 

(1925) (incorporating Free Speech Clause of First Amendment); Stummer, 

219 Ariz. at 142 ¶ 14 (noting the First Amendment is only a constraint on 

government). Our provision, by contrast, is a categorical guarantee of the 

individual right to freely speak, write, and publish, subject only to 

constraint for the abuse of that right. See Stummer, 219 Ariz. at 142 ¶ 14; see 

also id. ¶ 15 (“The encompassing text of Article 2, Section 6 indicates the 

Arizona framers’ intent to rigorously protect freedom of speech.”). In fact, 

as this Court has stated, “[t]he right of every person to freely speak, write[,]

and publish may not be limited.” Id. ¶ 15 (citation omitted).

¶175 Although this Court has consistently held that article 2, 

section 6 provides greater speech protection than the First Amendment, it 

has never fully explored the contours of the right. This case involves a 

straightforward application of the plain language of article 2, section 6. 

Unlike cases in other jurisdictions involving such activities as photography 

or custom cake design, the entirety of Plaintiffs’ business, to the extent it is 

at issue here, comprises custom writing. As such, it is at the core of our

constitutional protection.

¶176 The ordinance, as applied to Plaintiffs, requires them under 

threat of severe criminal penalties or loss of their livelihood to write words 

for purposes with which they profoundly disagree. This application of the 

ordinance directly implicates the speech protections of the Arizona 

Constitution. See Coleman, 230 Ariz. at 359–61 ¶¶ 24–26, 30, 36 & n.5 

(holding tattoos, even when comprised of only “standard designs or 

patterns,” and the creative process of tattooing are subject to protection 

under the Arizona Constitution’s free speech guarantee). When they have 

no choice to refuse to write a message with which they disagree, Plaintiffs 

are not “freely” writing. See Freely, Webster’s Third New International 

Dictionary (3d ed. 2002) (defining “freely” as “of one’s own accord”). 

Indeed, in concluding that a law that compelled speech violated the 

California Constitution’s similarly-worded free speech guarantee, the 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BOLICK, Concurring

56

California Supreme Court declared, “[o]ne does not speak freely when one 

is restrained from speaking. But neither does one speak freely when one is 

compelled to speak.” Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 750 (Cal. 

2000). The City has not suggested any way, such as libel, in which Plaintiffs 

have abused that right, see, e.g., Stummer, 219 Ariz. at 142–43 ¶ 16.

¶177 Regardless of the circumstances under which compelled 

speech may be tolerated under United States Supreme Court precedent, see, 

e.g., Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015), our state 

constitution categorically protects an individual’s freedom to write free 

from compulsion, being responsible only for the abuse of that right. See 

Stummer, 219 Ariz. at 142 ¶ 15 (“[T]he words of Arizona’s free speech 

provision ‘are too plain for equivocation.’” (citation omitted)). This case 

does not require us to determine the complete scope of that right, such as 

the extent to which it protects other speech-related activities. Nor does our 

decision extend to anti-discrimination laws that do not by their application 

require individuals to speak, write, or publish.

¶178 The dissenters engage in unfortunate hyperbole when they 

invoke shameful historical examples of discrimination. Infra ¶¶ 217–18 

(Bales, J. (Ret.), dissenting). Plaintiffs do not seek to employ the coercive 

apparatus of government to impose disabilities on others. They do not 

discriminate against patrons based on their sexual orientation (indeed, it 

remains unlawful for them to do so), but instead object to conveying certain 

messages regardless of who the patron is. Plaintiffs seek merely to 

vindicate their right not to engage in speech that offends their deeply held 

religious beliefs, a right not only protected by the Arizona Constitution and 

the Free Exercise of Religion Act, but also one of our nation’s most 

cherished civil liberties—one that, as Justice Robert H. Jackson declared, is 

“beyond the reach of majorities and officials.” W. Va. State Bd. of Educ. v. 

Barnette, 319 U.S. 624, 629, 638, 642 (1943) (striking down law that required 

Jehovah’s Witnesses to salute the American flag). As the Court’s opinion 

abundantly illustrates, that right does not evaporate upon enactment of a 

public accommodations law, no matter how beneficently inspired.

¶179 There is a reciprocity and universality to these rights of 

speech and conscience that give us all a direct stake in protecting them 

regardless of the circumstances of a particular case. For instance, Phoenix 

could lawfully prohibit a gay calligrapher from discriminating against 

Christian patrons whatever their beliefs but could not force the calligrapher 

to create a program for a church that preached against same-sex marriage. 

Likewise, if Michelangelo were alive, the City could require that he sell his 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BOLICK, Concurring

57

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.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

58

BALES, J. (Ret.), joined by TIMMER, V.C.J., and STARING, J., dissenting.

¶180 Can a business selling custom wedding invitations and other 

wedding products discriminate against same-sex couples because its 

owners, based on their sincerely held religious beliefs, disapprove of samesex marriage, itself a constitutionally protected right? We thus are faced 

with a tension between our fundamental values of liberty and equality, 

because any legal prohibition on discrimination—that is, any guarantee of 

equal treatment—necessarily constrains the choices of those who prefer to 

treat some people differently.

¶181 Because the interest in preventing discrimination is 

compelling, equality prevails when we are dealing with public 

accommodations such as businesses serving the public. Vendors can freely 

choose which products or services they offer but they cannot refuse to sell 

them to groups of customers whom they disfavor. A baker, for example, 

might choose to sell only special-order Easter cakes decorated with the 

symbol of a cross, but having made that choice, the baker cannot refuse to 

sell those cakes to non-Christians. Similarly, a professional photographer 

may or may not choose to take children’s photos, but a photographer who 

chooses to do so cannot, based on his or her religious beliefs, refuse to 

photograph mixed-race children.

¶182 Brush & Nib and its owners argue that creating custom 

wedding products, which may include painting or calligraphy, implicates 

their freedom of expression and their choice to refuse to sell such products 

to same-sex couples is protected by the Arizona Constitution’s free speech 

clause and FERA. The majority accepts these arguments at least for certain 

“custom” wedding invitations, supra ¶¶ 3, 38, reasoning that barring Brush 

& Nib from discriminating against same-sex customers would compel its 

owners to engage in “pure speech” conveying a message of approval of 

same-sex marriage and impermissibly burden their exercise of religion. 

Supra ¶ 2.

¶183 Our constitutions and laws do not entitle a business to 

discriminate among customers based on its owners’ disapproval of certain 

groups, even if that disapproval is based on sincerely held religious beliefs. 

In holding otherwise, the majority implausibly characterizes a 

commercially prepared wedding invitation as “pure speech” on the part of 

the business selling the product and discounts the compelling public 

interest in preventing discrimination against disfavored customers by 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

59

businesses and other public accommodations. Contrary to the majority, 

supra ¶¶ 7–8, requiring businesses to treat customers equally is in no way 

comparable to compelling public-school children to salute the flag, the issue 

in W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). With respect for my 

colleagues, I dissent.

A.

¶184 Our analysis should begin by recognizing how this case 

implicates the compelling interest in preventing discrimination in public 

accommodations. “[A]cts of invidious discrimination in the distribution of 

publicly available goods, services, and other advantages cause unique evils 

that government has a compelling interest to prevent . . . .” Roberts v. U.S. 

Jaycees, 468 U.S. 609, 628 (1984); see also Bd. of Dirs. of Rotary Int’l v. Rotary 

Club of Duarte, 481 U.S. 537, 549 (1987); Bob Jones Univ. v. United States, 461 

U.S. 574, 604 (1983).

¶185 As relevant here, the Phoenix Ordinance (“Ordinance”) 

provides that a public accommodation may not refuse service “because of . 

. . sexual orientation.” Phx., Ariz., City Code (“PCC”) § 18-4(B)(2). Brush 

& Nib offers goods and services to the general public and, as it concedes, is 

a public accommodation. Thus, the Ordinance requires Brush & Nib to 

“perform the same services for a same-sex couple as it would for an 

opposite-sex couple.” Elane Photography, LLC v. Willock, 309 P.3d 53, 66 ¶ 35 

(N.M. 2013).

¶186 The Ordinance is content neutral and does not purport to 

regulate speech, but rather conduct. And the United States Supreme Court 

has stated that public accommodations laws “are well within the State’s 

usual power to enact when a legislature has reason to believe that a given 

group is the target of discrimination, and they do not, as a general matter, 

violate the First or Fourteenth Amendments.” Hurley v. Irish-Am. Gay, 

Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 571–72 (1995).

¶187 Brush & Nib sells premade and made-to-order wedding 

products, including save-the-date cards, invitations, programs, vows, 

marriage certificates, place cards, escort cards, menus, and maps. The 

wedding invitations contained in the record identify the names of the 

couple to be wed, provide logistical details, and usually—but not always—

expressly invite the recipient to join in the celebration of the couple’s 

wedding. See Appendix 1. Some invitations do not refer to “celebration” 

but instead ask guests to “share in the joy of the marriage” or merely 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

60

“[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 madeto-order products are attached as Appendix 2; Appendix 1 includes copies 

of other invitations in the record referenced by the majority.

¶188 Brush & Nib and its owners seek to refuse to provide services 

based on the same-sex status of the marrying couple rather than the content 

of the company’s made-to-order products. Notably, this case does not 

involve any specific request that Brush & Nib prepare invitations or other 

artwork for a same-sex wedding, and the City acknowledges that the 

Ordinance does not require Brush & Nib to include any particular message 

(such as a statement praising marriage equality) in the items it sells. 

Moreover, consistent with the court of appeals’ holding (unchallenged by 

the City), Brush & Nib is free to express on its website the owners’ religious 

belief that marriage is between a man and a woman. See Brush & Nib Studio, 

LC v. City of Phoenix, 244 Ariz. 59, 72–73 ¶ 31 (App. 2018).

¶189 Brush & Nib claims it can refuse to prepare any custom 

products for a same-sex wedding, even if they do not identify the gender of 

the two people marrying or, for items such as table place cards, even refer 

to the couple. At bottom, Brush & Nib argues that its owners’ choosing 

among customers based on their sexual orientation—as distinct from 

identifying the content of invitations or other custom products—itself 

constitutes a legally protected exercise of the freedom of speech or religion.

¶190 This case does not concern the content of the made-to-order 

wedding products, but instead the identity of the customer and end user. 

Such a refusal constitutes discrimination based on sexual orientation. This 

fact is not altered by Plaintiffs’ assertion that they want to refuse to provide 

custom wedding products for a same-sex wedding whether the marrying 

couple or someone else buys them. Refusing to sell to the latter—for 

example, a parent—does not make it any less discriminatory for the 

business to refuse to sell to the couple, and because the refusal is based on 

the marriage involving a same-sex couple, it is based on sexual orientation. 

See PCC § 18-4(B) (prohibiting both directly and indirectly refusing 

accommodations based on sexual orientation).

¶191 Unfortunately, the majority sanctions discrimination in this 

manner, concluding that Brush & Nib can refuse to prepare custom 

wedding invitations for Jordan and Alexis who share the same sex even 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

61

though it would sell identical invitations to an opposite-sex couple with the 

same names. Moreover, although the majority limits its holding to 

wedding invitations like the exemplars in the record, supra ¶¶ 38, 112, the 

majority leaves open the prospect that vendors can otherwise refuse to 

prepare custom wedding items that “celebrate” a same-sex wedding. Supra 

¶ 160. Today’s decision is also deeply troubling because its reasoning 

cannot be limited to discrimination related to same-sex marriage or based 

on the beliefs of any one religion, but instead extends more broadly to other 

claims of a “right” by businesses to deny services to disfavored customers.

¶192 We should instead recognize that the City’s interest in this 

case is compelling and narrowly tailored to enforce “rights of public access 

on behalf of [] citizens” as well as protect against deprivation of “individual 

dignity” and “the benefits of wide participation in political, economic, and 

social life.” Jaycees, 468 U.S. at 625. As the court of appeals cogently 

observed, “[t]he least restrictive way to eliminate discrimination in places 

of public accommodation is to expressly prohibit such places from

discriminating.” Brush & Nib, 244 Ariz. at 78 ¶ 50.

B.

¶193 Arizona’s free speech clause does not entitle Brush & Nib or 

its owners to refuse to provide goods and services for same-sex couples that 

it otherwise provides to opposite-sex couples.

¶194 As an initial matter, because the majority has decided the case 

on statutory grounds, it should not reach the constitutional issue—a point 

we have repeatedly emphasized. See Stanwitz v. Reagan, 245 Ariz. 344, 348 

¶ 12 (2018); State v. Gomez, 212 Ariz. 55, 61 ¶ 31 (2006). Exercising such 

restraint is especially appropriate here, where the analysis of the free speech 

claim in no way depends on the statutory claim under FERA. Moreover, 

although Arizona’s constitution provides greater protections for speech 

than does the First Amendment in some contexts, I agree with the majority 

that we should rely on First Amendment case law in analyzing the claim 

under Arizona’s free speech clause.

¶195 In construing article 2, section 6, Arizona courts generally 

“have followed . . . interpretations of the United States Constitution.” State 

v. Stummer, 219 Ariz. 137, 142 ¶ 16 (2008). The parties below couched their 

arguments solely in terms of First Amendment case law, and they have 

identified no reason for the Court here to give greater protections under the 
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JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

62

state constitution. See State v. Jean, 243 Ariz. 331, 342 ¶ 39 (2018) (“Merely 

referring to the Arizona Constitution without developing an argument is 

insufficient to preserve a claim that it offers greater protection than the 

Fourth Amendment.”). Finally, nothing in the text of our constitution or its 

history suggests that it should be read to give greater protection for 

discriminatory conduct by businesses or other public accommodations than 

does the Federal Constitution.

¶196 The Ordinance is content neutral and does not compel a 

vendor of publicly available goods or services to speak about anything. 

Rather, it ensures that once a vendor decides to offer a good or service, a 

vendor must not refuse to provide such goods or services to a protected 

class that it would otherwise provide to the public. Although the creation 

of wedding invitations may be expressive, the operation of a business 

catering to the public is not. Furthermore, we recognized in Coleman v. City 

of Mesa that a business engaged in expressive activity is still subject to 

generally applicable laws. 230 Ariz. 352, 360 ¶ 31 (2012); see also id. at 357 

¶ 16 (noting that “[t]he City is not attempting to impose a generally 

applicable law . . . to the on-going operations of businesses engaged in 

protected speech.”). Coleman concerned a city’s barring a tattoo studio from 

operating at a particular location; it did not address whether a business 

choosing to sell items with expressive content can refuse to sell things to 

some customers that it willingly provides to others.

¶197 Because the Ordinance regulates conduct, and not speech, any 

burden on speech is incidental. “[A]n incidental burden on speech . . . is 

permissible . . . so long as the neutral regulation promotes a substantial 

government interest that would be achieved less effectively absent the 

regulation.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (“FAIR”), 547 

U.S. 47, 67 (2006) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). 

In FAIR, the United States Supreme Court upheld a requirement that 

universities, as a condition for federal funding, provide military recruiters 

the same access to students through university communications and 

meeting rooms as allowed other prospective employers. Id. at 55, 70. The 

communications between the universities and their students were 

undoubtedly speech (even “pure” speech), but the Court recognized, citing 

public accommodations cases, that the First Amendment does not protect 

discriminatory conduct, even if such conduct is accomplished through 

speech. See id. at 62–63.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

63

¶198 Here the conduct prohibited by the Ordinance is a vendor’s 

refusing to sell to same-sex couples the same goods or services offered to 

others. Such a refusal is the very definition of discrimination by a public 

accommodation. That complying with the public accommodations law 

may require the vendor to engage in “speech” does not mean that 

discriminatory conduct is constitutionally protected. See, e.g., FAIR, 547 

U.S. at 62 (“[I]t has never been deemed an abridgement of freedom of 

speech or press to make a course of conduct illegal merely because the 

conduct was in part initiated, evidenced, or carried out by means of 

language, either spoken, written, or printed.” (citation omitted)).

¶199 Hurley, on which the majority relies, is inapposite. That case 

involved a “peculiar” application of a public accommodations law to a 

privately organized parade that the Supreme Court described as 

“inherent[ly] expressive[].” 515 U.S. at 568, 572. The Court held that the 

parade organizer could not be compelled to include groups whose views 

the organizer did not share. Id. at 566. Hurley distinguished this situation 

from the generally permissible application of public accommodations laws 

to businesses. Id. at 578; see also Butler v. Adoption Media, LLC, 486 F. Supp. 

2d 1022, 1059–60 (N.D. Cal. 2007) (noting absence of a “reported decision 

extending the holding of Hurley to a commercial enterprise carrying on a 

commercial activity”). To the extent a parade analogy is apt, this case is 

more like a supplier of banners refusing to sell to a disfavored group than 

a parade-organizer being compelled to include groups with objectionable 

views. Brush & Nib and its owners are like the suppliers, not the paradeorganizers. The organizers would be the marrying couple and forcing them 

to include particular messages in their wedding would be more analogous 

to Hurley.

¶200 The majority also argues that the Spence-Johnson test for 

determining whether conduct contains an expressive element is 

inapplicable here, because the wedding invitations in the record constitute 

“pure speech.” Supra ¶ 87. The majority goes even further and holds that 

whether a message is attributed to a speaker is irrelevant in this case. Supra

¶ 87. But Hurley itself considered attribution relevant, and it remains a part 

of a free speech analysis. See Hurley, 515 U.S. at 575–77; see also FAIR, 547 

U.S. at 65 (noting that misattribution was not likely and did not warrant 

exempting universities from complying with Solomon Amendment). Thus, 

our analysis of the issues should consider whether others would view 

Brush & Nib’s creation of custom invitations as expressing its owners’ 

endorsement of same-sex marriage.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

64

¶201 The majority’s conclusion that requiring Brush & Nib to 

provide wedding invitations on a non-discriminatory basis would compel 

“pure speech” by the owners endorsing same-sex marriage is strained and 

implausible. The exemplar invitations do not suggest that they reflect the 

views of the business preparing them. See Appendix 1. Invitations to 

attend and celebrate a wedding are no more a “celebration” on the part of 

the business preparing them than is the wedding cake provided by a caterer 

or pictures taken by a wedding photographer. Contrary to the majority’s 

conclusion that an invitation constitutes “pure speech” reflecting that Brush 

& Nib endorses same-sex marriage, supra ¶ 68, the expression of a wedding

invitation, as “perceived by spectators as part of the whole” is that of the 

marrying couple. See Hurley, 515 U.S. at 577; cf. Coleman, 230 Ariz. at 359 

¶ 25 (noting that “a tattoo reflects not only the work of the tattoo artist but 

also the self-expression of the person displaying the tattoo’s relatively 

permanent image”). Of course, nothing requires Brush & Nib to identify 

itself as the supplier of an invitation or precludes it from disclaiming that 

its sales constitute an endorsement of the beliefs of its customers. Cf. FAIR, 

547 U.S. at 49 (“Nothing about recruiting suggests that law schools agree 

with any speech by recruiters, and nothing in the Solomon Amendment 

restricts what they may say about the military’s policies.”).

¶202 Even if the Ordinance burdens speech, it is a constitutionally 

permissible burden because the Ordinance is content neutral, serves a 

compelling governmental interest, and there is no less restrictive 

alternative. Long-settled law recognizes that a business cannot, based on 

its owner’s beliefs, refuse to serve customers who belong to a racial 

minority. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968) 

(describing such a claim as “patently frivolous”). Similarly, a business, 

even one organized as a partnership, cannot justify sex-based 

discrimination in its hiring by contending that its conduct reflects the 

freedom of association protected by the First Amendment. See Hishon v. 

King & Spalding, 467 U.S. 69, 78 (1984). And although the majority suggests 

that cases such as Heart of Atlanta Motel are not relevant because they did 

not address the First Amendment, supra ¶ 113, there is no reason to think 

that the Supreme Court would address such cases differently if that ground 

were argued as an excuse for discriminatory conduct. In Hurley, the Court 

specifically cited to Heart of Atlanta Motel while noting that public 

accommodations laws do not generally violate the First or Fourteenth 

Amendments. Hurley, 515 U.S. at 572; cf. Masterpiece Cakeshop, Ltd. v. Colo. 

Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (citing Piggie Park in noting 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

65

that “it is a general rule that [religious and philosophical objections to samesex marriage] do not allow business owners and other actors in the 

economy and in society to deny protected persons equal access to goods 

and services under a neutral and generally applicable public 

accommodations law.”).

¶203 The majority’s analysis turns on labeling the conduct at issue 

“pure speech,” but this legal formalism harbors two pernicious ideas: one 

is that a vendor’s refusal to sell to certain customers is itself protected 

expression, the other is that the public interest in preventing discrimination 

does not suffice to require a vendor to serve all equally if the items sold 

involve expression by the vendor. One would think—indeed fervently 

hope—that we are long past the notion that businesses operating as public 

accommodations have a “right” to tell certain customers that they do not 

serve their kind and so they should take their patronage elsewhere. 

Although the majority baldly asserts that its holding will not allow 

“invidious, status-based discrimination,” supra ¶ 6, its reasoning suggests 

that any business offering made-to-order goods and services with 

expressive content—an open universe that includes printing, painting, 

tattoos, videography, and other “art” broadly defined—can selectively 

refuse to sell to groups of customers whom the business disfavors. Free 

speech jurisprudence does not dictate such a result, nor the result in this 

case.

C.

¶204 FERA does not allow Plaintiffs to refuse services for a samesex wedding that it would provide for an opposite-sex wedding. FERA 

generally protects an individual’s exercise of religion from substantial 

governmental burdens, but that protection is not unlimited. See A.R.S. § 41-

1493.01(B), (E).

¶205 To prevail on their claim under FERA, Brush & Nib’s owners 

must show that refusing to provide same-sex couples with the same 

services they would provide to opposite-sex couples: (1) is motivated by 

their religious beliefs; (2) their beliefs are sincerely held; and (3) the 

government action—here, requiring equal treatment of all customers 

without regard to sexual orientation—substantially burdens the exercise of 

those beliefs. See State v. Hardesty, 222 Ariz. 363, 366 ¶ 10 (2009). Even if 

these elements are established, the prohibition on discrimination will be 

upheld if the government meets its burden of showing that it both furthers 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

66

a compelling governmental interest and is the least restrictive means of 

furthering that interest. See id.

¶206 On this record, there is no dispute that Brush & Nib’s owners, 

in seeking to refuse to create made-to-order invitations and other custom 

wedding products for same-sex couples, are motivated by religious beliefs 

that they sincerely hold. But the City does dispute their assertion that 

complying with the Ordinance would substantially burden the exercise of 

their religious beliefs.

¶207 FERA itself does not define what constitutes a “substantial 

burden.” It does, however, observe that the term “is intended solely to 

ensure that this article is not triggered by trivial, technical, or de minimis 

infractions.” § 41-1493.01(E). The majority concludes that a substantial 

burden is imposed when state action forces someone to choose between 

following the precepts of their religion and receiving a government benefit, 

or when it compels them under threat of criminal sanction to perform acts 

undeniably at odds with fundamental tenets of their religious beliefs. Supra 

¶ 131; see also Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 

2008) (adopting similar standard for federal Religious Freedom Restoration 

Act (RFRA)).

¶208 In terms of a substantial burden, the issue here is whether the 

Ordinance compels Brush & Nib’s owners to perform acts undeniably at 

odds with fundamental tenets of their religious beliefs. The City notes that 

Brush & Nib’s owners are willing to sell prepackaged wedding products 

for use in same-sex weddings. The owners have also acknowledged that 

they are willing to sell made-to-order products to opposite-sex couples who 

engage in conduct they find objectionable on religious grounds. The City 

also observes that the owners have not identified any tenet of their faith that 

requires them to sell wedding products to certain customers or forbids 

them from selling them to others.

¶209 Because the owners do not object to selling some items for use 

in same-sex marriages or selling custom items for other weddings raising 

religious concerns, the City infers that requiring them to sell custom items 

for same-sex weddings does not substantially burden the exercise of their 

religious beliefs. The majority frames the City’s argument as declaring the 

owners’ religious beliefs “unreasonable,” and contends that such reasoning 

is foreclosed by Hobby Lobby. Supra ¶¶ 137–38. The majority errs on both 

points. The City has not argued that the owners’ beliefs are unreasonable; 
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JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

67

nor was such reasoning adopted by the court of appeals. See Brush & Nib, 

244 Ariz. at 77 ¶ 49. Moreover, while Hobby Lobby recognizes that it is not 

the role of courts to gauge the reasonableness of a claimant’s religious 

belief, both RFRA and FERA by their terms require a court to consider 

whether a burden is substantial, itself a legal conclusion. On the latter 

point, Hobby Lobby does not suggest a court must accept a claimant’s 

assertion that a substantial burden exists. See, e.g., Real Alts., Inc. v. Sec’y 

Dep’t of Health & Human Servs., 867 F.3d 338, 356–58 (3d Cir. 2017).

¶210 Even if we assume that the Ordinance places a substantial 

burden on the owners’ exercise of their religious beliefs, they cannot prevail 

on their FERA claim because the City has a compelling interest in 

preventing discrimination and has done so through the least restrictive 

means. That interest would be thwarted if businesses can discriminate 

based on their owners’ views. See Masterpiece Cakeshop, 138 S. Ct. at 1727 

(noting that allowing vendors of wedding goods and services to refuse 

similar services for gay persons would result in “a community-wide stigma 

inconsistent with the history and dynamics of civil rights laws that ensure 

equal access to goods, services, and public accommodations”); State v. 

Arlene’s Flowers, Inc., 441 P.3d 1203, 1235 ¶ 107 (Wash. 2019). The issue is 

not whether the City might have authorized less severe sanctions for 

violations of the Ordinance, but instead whether the goal of preventing 

discrimination could otherwise be achieved. See Tyms-Bey v. State, 69 

N.E.3d 488, 491 (Ind. Ct. App. 2017).

¶211 The goal of equal access cannot be achieved allowing ad hoc 

exemptions for businesses based on their owners’ beliefs, even if they are 

sincerely held. The “fundamental object” of public accommodation laws is 

to prevent the “deprivation of personal dignity that surely accompanies 

denials of equal access to public establishments.” Heart of Atlanta Motel, 379 

U.S. at 250 (quoting S. Rep. No. 88-872, at 16 (1964)). Allowing businesses 

to refuse services to groups they disfavor, and to publicly advertise those 

practices, is inherently unequal. This point is not undermined by the City’s 

excepting “bona fide religious organizations” from the Ordinance, as the 

issue is not whether the Ordinance has proscribed discriminatory conduct 

by every entity, but instead whether allowing a broader exception for 

businesses under FERA would undermine the statutory goal. Cf. Hardesty, 

222 Ariz. at 368–69 ¶ 23 (rejecting argument that religious-use defense for 

possession of peyote supported also recognizing FERA-based defense for 

possession of marijuana and noting “disparate magnitudes” of respective 

uses).
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

68

¶212 In concluding that the City has not shown the Ordinance is 

the least restrictive means of preventing discrimination, the majority 

mistakenly relies on Hobby Lobby, 573 U.S. 682 (2014), and Gonzales v. O 

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). Supra 

¶¶ 155–58. Neither of those cases involved a RFRA-based claim for an 

exemption from a public accommodations law, much less questioned the 

compelling interest in preventing discrimination by businesses. Cf. 

Hardesty, 222 Ariz. at 368 ¶ 19 (recognizing that analysis of least restrictive 

means depends on compelling interest involved). In fact, Hobby Lobby 

recognized that considering impacts on third parties from a requested 

exemption should inform analysis of the government’s compelling interest 

and the availability of a less-restrictive means. See 573 U.S. at 729 n.37; id. 

at 739 (Kennedy, J., concurring) (noting that religious accommodation may 

not “unduly restrict other persons . . . in protecting their own interests”). In 

granting a religious accommodation to the closely held corporations under 

RFRA, the Court noted that doing so would have “precisely zero” effect on 

the interests of others. Id. at 693. O Centro rejected the contention that the 

government’s interest in uniformly enforcing the Controlled Substances 

Act (CSA) was sufficiently compelling to deny a religious exemption for the 

use of hoasca, a ceremonial tea containing a proscribed hallucinogen, 

noting that the CSA itself contains an exemption for the religious use of 

peyote. 546 U.S. at 423, 425. But O Centro itself recognized that “there may 

be instances in which a need for uniformity precludes the recognition of 

exceptions to generally applicable laws under RFRA.” Id. at 436.

¶213 The “less restrictive means” contemplated by the majority—

allowing businesses selectively to discriminate based on their owners’ 

beliefs—enables the very conduct the Ordinance legitimately seeks to 

prohibit. Unlike Hobby Lobby or O Centro, granting ad hoc exemptions to 

the Ordinance imposes discrete and identifiable harms on those subjected 

to discrimination. It is no answer to say that today’s holding is limited to 

“custom” wedding invitations or that same-sex couples may obtain 

wedding-related services from other vendors. The prohibition on 

discrimination not only promotes equal access, but also serves to eradicate 

discrimination and the attendant humiliation and stigma that result if 

businesses can selectively treat some customers as second-class citizens. 

See, e.g., Jaycees, 468 U.S. at 625 (noting that public accommodations laws 

“vindicate ‘the deprivation of personal dignity that surely accompanies 

denials of equal access to public establishments’” (quoting Heart of Atlanta 

Motel, 379 U.S. at 250)).
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

69

¶214 The majority’s outcome is even more peculiar considering 

that, in 2014, the legislature attempted to pass SB 1062, which would have 

amended the definition of “person” under FERA to include “any 

individual, association, partnership, corporation, church, religious 

assembly or institution, or other business organization,” thus giving 

businesses an explicit right to invoke FERA as a defense to refusing to 

comply with, among other things, public accommodation laws. S.B. 1062, 

51st Leg., 2d Reg. Sess. (Ariz. 2014), 

https://apps.azleg.gov/BillStatus/GetDocumentPdf/237882. Due to 

concerns of discrimination against minority groups, the bill was vetoed by 

the governor. See Bill Chappell & Mark Memmott, Arizona Gov. Brewer 

Vetoes Controversial Bill, NPR (Feb. 26, 2014),

https://www.npr.org/sections/thetwoway/2014/02/25/282507942/ariz

ona-gov-brewer-vetoes-controversial-bill; cf. J.D. v. Hegyi, 236 Ariz. 39, 43 

¶ 21 (2014) (rejecting court of appeals’ statutory interpretation in part as in 

tension with statutory purpose, when legislature considered and rejected 

proposed amendment).

¶215 The majority errs in concluding that the City has not met its 

burden under FERA. The majority is likewise unpersuasive in asserting 

that its holding is narrow with limited consequences. Supra ¶¶ 3, 112. 

Saying that today’s decision applies only to custom wedding invitations 

that are “materially similar” to those in the record, supra ¶ 3, does not 

delimit the ruling even as to wedding-related products, as the majority does 

not identify the salient characteristics of the invitations in the record; 

observes that every invitation is “different and unique,” supra ¶ 78; and 

disclaims addressing whether Brush & Nib can refuse to provide other 

custom products for same-sex weddings. Supra ¶ 3. More broadly, if 

religious beliefs can allow discriminatory refusals of service to same-sex 

couples, there is no principled reason why FERA will not also protect 

discriminatory denials of goods or services in other contexts to other 

protected groups.

D.

¶216 This case is not about the government compelling individuals 

to create art or pure speech expressing a message with which they disagree. 

Instead, it involves a business, undisputedly a public accommodation, 

whose owners wish to deny the same goods and services for a same-sex 

wedding that they would provide for an opposite-sex wedding. Barring 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE 

STARING, Dissenting

70

those who choose to offer goods and services to the public from 

discriminating does not impermissibly compel speech. A vendor may no 

doubt engage in a form of expression by refusing to sell things to customers 

it disfavors. But expression through such discriminatory conduct, even if 

motivated by sincerely held religious beliefs, is not legally protected. 

¶217 Beyond the injury to particular customers who are denied 

goods or services, today’s holding threatens a more general harm. It could 

portend a marketplace in which vendors—regardless of their religious 

beliefs—who make items with expressive content can openly proclaim their 

refusal to sell to customers whom they disfavor, as can vendors—whether 

or not they sell items with expressive content—who, based on their 

religious beliefs, object to selling things to some customers that they offer 

to others. This prospect diminishes our defining statement that all are 

created equal and can only dismay those who believe that this ideal should 

be “constantly looked to, constantly labored for, and even though never 

perfectly attained, constantly approximated, and thereby constantly 

spreading and deepening its influence.” Abraham Lincoln, Speech at 

Springfield, Illinois (June 26, 1857), in Abraham Lincoln: Speeches and 

Writings 1832–1858 398 (1989).

¶218 Over our history, Arizonans have been denied access to 

housing, employment, and public accommodations based on invidious 

discrimination. Phoenix’s early history includes shopkeepers placing “No 

Mexicans Allowed” signs in their shop windows, landowners inserting 

restrictions against people of Chinese descent in property deeds, 

widespread refusals to serve black Arizonans in restaurants, and hotel 

operators refusing to accommodate Jewish guests. Bradford Luckingham, 

Minorities in Phoenix 40, 116, 148 (1994); Hon. Elizabeth Finn, The Struggle 

for Civil Rights in Arizona, 34 Ariz. Att’y 24, 27 (July 1998). Through years 

of hard work and perseverance, protections like the Ordinance have been 

put in place to ensure that we do not repeat the denials of access and 

opportunity that plagued our state in its infancy.

¶219 This case, sadly, illustrates that our progress toward equality 

has been tortuous and incomplete. Despite today’s mistaken holding, our 

constitutions and laws should not entitle a business to discriminatorily 

refuse to provide goods or services to customers whom the business 

disfavors.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

71

TIMMER, V.C.J., dissenting. 

¶220 I respect and admire people who not only profess religious 

faith but attempt to live by their religious principles. Nevertheless, in an 

ordered society of many beliefs, “every person cannot be shielded from all 

the burdens incident to exercising every aspect of the right to practice 

religious beliefs.” United States v. Lee, 455 U.S. 252, 261 (1982). When people 

of faith, like Plaintiffs, choose to engage in commercial activities, “the limits 

they accept on their own conduct as a matter of conscience and faith are not 

to be superimposed on the statutory schemes which are binding on others 

in that activity.” Id. The Ordinance, which binds businesses in the City, 

similarly binds Plaintiffs, and neither Arizona’s free speech provision nor 

FERA provides an exemption. Although I agree wholeheartedly with 

Justice Bales’ dissent, the alarming consequences of today’s decision spur 

me to emphasize some points. I also write separately to express 

disagreement with the majority’s “substantial burden” analysis under

FERA.

¶221 First, the majority errs by concluding that the Ordinance 

compels Plaintiffs to express messages supporting same-sex marriages, 

“cuts off the Plaintiffs’ right to express their beliefs about same-sex 

marriage,” and attempts to coerce “uniformity of beliefs and ideas” by 

“telling [Plaintiffs] what they can and cannot say.” See supra ¶¶ 7-8, 103. 

The Ordinance regulates conduct, not speech. It only requires Plaintiffs to 

sell the same products equally to all customers, regardless of sexual 

orientation. Plaintiffs retain control over the type of products they sell, their 

style and design, and the specific messages written. Thus, if Plaintiffs 

would not design a wedding invitation with a pink triangle or a rainbow 

flag for an opposite-sex couple, the Ordinance cannot compel them to do so 

for a same-sex couple. If they always include language in wedding 

invitations for opposite-sex couples describing marriage as a union only 

between men and women, they can insist on doing so in same-sex wedding 

invitations without penalty. They can freely publish views opposing samesex marriages or say nothing at all about marriages. But because Plaintiffs 

design and sell custom invitations expressing customers’—not Plaintiffs’—

requests for guests to “share the joy,” “celebrate,” or simply attend 

weddings, Plaintiffs cannot refuse to do so for same-sex couples.

¶222 Relatedly, the majority mistakenly contends that requiring 

Plaintiffs to sell custom wedding products intended for same-sex weddings 

compels them to endorse same-sex marriages in violation of their beliefs. 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

72

See supra ¶ 103. I disagree. A wedding invitation invites attendees to 

celebrate a particular couple’s wedding; it does not endorse the idea of 

opposite-sex marriages or same-sex marriages. See Janus v. Am. Fed’n of 

State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463–64 (2018) 

(“[c]ompelling individuals to mouth support for views they find 

objectionable” generally violates First Amendment principles). The 

meaning of these expressions—invitations to attend a wedding—does not 

change as the sexual orientation of customers varies. And it defies common 

sense to think that a wedding invitation expresses a commercial artist’s 

endorsement of the subject wedding whether it involves, for example, a 

same-sex couple, an opposite-sex couple in an abusive relationship, or a 

loveless match. Cf. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 

547 U.S. 47, 64–65 (2006) (rejecting law schools’ argument that allowing the 

military to recruit at the schools evidences the schools’ agreement with 

military policies).

¶223 Second, the majority misapplies FERA’s “substantial burden” 

requirement by failing to consider how the Ordinance itself—before 

considering penalties for violations—substantially burdens Plaintiffs’ 

exercise of their beliefs. A.R.S. § 41-1493.01(B), (E) (providing that FERA is 

triggered only if government laws, rules, or other actions “substantially 

burden a person’s exercise of religion,” which excludes “trivial, technical or 

de minimis infractions”). If the Ordinance’s proscription of discrimination 

in public accommodation does not substantially burden Plaintiffs’ free 

exercise of religion in the first instance, there is no need to consider the 

potential penalties for violating the Ordinance. So how does requiring 

Plaintiffs to sell the same type of wedding products to opposite-sex and 

same-sex couples burden Plaintiffs’ exercise of their sincerely held religious 

beliefs? And what makes any burden “substantial” and not “trivial, 

technical or de minimis”? The majority does not say. Instead, it incorrectly 

focuses only on the penalties for violating the Ordinance, finding a 

substantial burden exists here because if Plaintiffs adhere to their sincerely 

held religious beliefs and refuse to sell custom wedding invitations for 

same-sex weddings, they could suffer “severe civil and criminal sanctions.” 

See supra ¶ 135.

¶224 The majority’s misapplication of FERA’s “substantial 

burden” requirement effectively eliminates it. Under the FERA paradigm 

announced today, a claimant need only demonstrate that exercise of a 

sincerely held religious belief conflicts with a law, which could result in a 

penalty. The claimant has no need to demonstrate that the law itself 

substantially burdens the claimant’s exercise of religion—a requirement 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

73

intended to remove trivial and de minimis infringements from FERA’s 

protection. Thus, as the City predicts, a Phoenix taxi-cab owner with a 

religious belief that women should only travel with men and who therefore 

refuses to accept unaccompanied women riders can show a substantial 

burden under FERA just by demonstrating the sincerity of his beliefs and 

pointing to the potential penalties for violating the Ordinance. It is not 

difficult to imagine similarly discriminatory scenarios involving race, color, 

religion, sex, national origin, marital status, and disability, all of which the 

Ordinance proscribes. See Phx., Ariz., City Code § 18-4(B).

¶225 In my view, whether a “substantial burden” on the exercise of 

religion exists under FERA is a legal question for the courts rather than a 

factual question determined by the sincerity of a person’s religious beliefs 

and the existence of penalties for exercising those beliefs in a manner that 

violates a law. See Pennsylvania v. President United States, 930 F.3d 543, 572 

n. 28 (3d Cir. 2019); Real Alts., Inc. v. Sec’y Dep’t of Health and Human Servs., 

867 F.3d 338, 356 (3d Cir. 2017). Thus, “[w]hile the Supreme Court 

reinforced in Hobby Lobby that [courts] should defer to the reasonableness of 

the [RFRA claimant’s] religious beliefs, this does not bar our objective 

evaluation of the nature of the claimed burden and substantiality of that 

burden on the [claimant’s] religious exercise.” Real Alts., 867 F.3d at 356 

(alterations in original and added) (citation omitted); see also Burwell v. 

Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014) (characterizing the RFRA 

issue as whether the government imposed a substantial burden on the 

parties to conduct business in accordance with their religious beliefs and 

not whether those beliefs are reasonable); Mahoney v. Doe, 642 F.3d 1112, 

1121 (D.C. Cir. 2011) (“[T]o make religious motivation the critical focus is . 

. . to read out of RFRA the condition that only substantial burdens on the 

exercise of religion trigger the compelling interest requirement.” (citation 

omitted)).

¶226 Relying on Hobby Lobby, the majority asserts it cannot decide 

whether the Ordinance itself substantially burdens Plaintiffs’ exercise of 

their sincerely held religious belief that marriage occurs only between a 

man and a woman because doing so would require the Court to decide the 

reasonableness of Plaintiffs’ religious views, which is nonjusticiable. See 

supra ¶¶ 136–40. I recognize that some language in Hobby Lobby supports 

the majority’s position. See Hobby Lobby, 573 U.S. at 725 (stating that 

plaintiffs “sincerely believe that providing the insurance coverage 

demanded by the HHS regulations lies on the forbidden side of the line, 

and it is not for us to say that their religious beliefs are mistaken or 

insubstantial. Instead, our ‘narrow function . . . in this context is to 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

74

determine’ whether the line drawn reflects ‘an honest conviction’”). But the 

Court in Hobby Lobby did not address whether a sincere religious belief 

alone would suffice under RFRA when a business is compelled by a public 

accommodation law to provide goods and services equally to customers, as 

opposed to funding morally objectionable acts, and it may well address the 

issue differently in that context. Cf. Masterpiece Cakeshop, Ltd. v. Colo. Civil 

Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (noting that while religious 

objections to same-sex marriage are constitutionally protected, “it is a 

general rule that such objections do not allow business owners and other 

actors in the economy and in society to deny protected persons equal access 

to goods and services under a neutral and generally applicable public 

accommodations law”); id. (stating that although objecting clergy cannot be 

compelled to perform a same-sex wedding ceremony, “if that exception 

were not confined, then a long list of persons who provide goods and 

services for marriages and weddings might refuse to do so for gay persons, 

thus resulting in a community-wide stigma inconsistent with the history 

and dynamics of civil rights laws that ensure equal access to goods, 

services, and public accommodations”). Regardless, although instructive, 

Hobby Lobby is not binding on our interpretation of FERA any more than 

RFRA is binding on the City.

¶227 A “substantial burden” under FERA occurs only if the 

Ordinance (1) compels claimants “to choose between following the precepts 

of [their] religion and forfeiting benefits, on the one hand, and abandoning 

one of the precepts of [their] religion in order to accept work, on the other 

hand,” Sherbert v. Verner, 374 U.S. 398, 404 (1963), or (2) threatens claimants 

with criminal sanctions unless they “perform acts undeniably at odds with 

fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 406 U.S. 

205, 218 (1972). A court’s inquiry should focus on “the nexus between 

religious practice and religious tenet: whether the regulation at issue forced 

plaintiffs to engage in conduct that their religion forbids or prevents them 

from engaging in conduct their religion requires.” Mahoney, 642 F.3d at 

1121 (interlineations accepted) (citation omitted).

¶228 Plaintiffs have not shown that the Ordinance substantially 

burdens the exercise of their religious beliefs. The Ordinance does not 

compel them to express approval of same-sex marriages, and they would 

not be penalized for refusing to design wedding products expressing such 

approval. See Sherbert, 374 U.S. at 404. Plaintiffs do not claim that 

“fundamental tenets of their religious beliefs,” see Yoder, 406 U.S. at 218, 

require them to refrain from selling custom wedding products (as opposed 

to non-custom goods) related to same-sex weddings. See supra ¶ 160 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

75

(“Plaintiffs have never asserted that their faith precludes them from serving 

same-sex couples, or that it requires them to refuse service to a customer 

based on their sexual orientation.”). Nor does selling custom wedding 

products for same-sex weddings make Plaintiffs participants in such 

weddings as such items do not themselves “enabl[e] or facilitat[e]” 

weddings any more than would the artistically created but non-custom 

wedding products Plaintiffs willingly sell for use in same-sex weddings. 

See Hobby Lobby, 573 U.S. at 724.

¶229 Selling custom wedding products for same-sex weddings 

may “decrease[] the spirituality, the fervor, or the satisfaction” with which 

Plaintiffs practice their religion. See Navajo Nation v. U.S. Forest Serv., 535 

F.3d 1058, 1063 (9th Cir. 2008) (stating that such impacts do not constitute a 

“substantial burden” under RFRA). But they have not shown that selling 

the same custom items to customers for use in opposite-sex and same-sex 

weddings forces Plaintiffs to choose between running their business and 

following their faith, see Sherbert, 374 U.S. at 404, or is “undeniably at odds 

with fundamental tenets of their religious beliefs.” See Yoder, 406 U.S. at 

218.

¶230 Despite the majority’s unfounded assertion, see supra ¶¶ 141-

42, I fully embrace that Plaintiffs’ religious beliefs are sincere and 

substantial. Nevertheless, deference to Plaintiffs’ sincere religious beliefs 

should not require deference to their assertion that the Ordinance 

substantially burdens their exercise of those beliefs. It is our role as jurists 

to decide whether they proved FERA’s substantial burden requirement. On 

this record, like the trial court, I conclude they have only shown a de 

minimis burden and so FERA is not triggered. See § 41-1493.01(E).

¶231 Third, the majority ignores Plaintiffs’ request to be relieved 

from designing other custom wedding-related items for same-sex 

marriages, such as wedding invitations that do not include celebratory 

messages, “save the date” notices, table numbers, menus, and “welcome” 

signs. Samples of those items are in the record, so no reason exists not to 

address them. See Appendix 2. The majority possibly ignores the request 

because, for example, it is difficult to understand how a menu proclaiming 

that guests are having beef tenderloin for dinner communicates anything 

other than what meal guests will be served. That message remains the same 

whether those guests are attending an opposite-sex wedding or a same-sex 

wedding. And it is difficult to discern how designing and selling such items 

substantially burdens Plaintiffs’ exercise of their religious beliefs in 

violation of FERA. Putting aside whether requiring Plaintiffs to design 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

VICE CHIEF JUSTICE TIMMER , Dissenting

76

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, likeminded businesses, and the lower courts are left with incomplete guidance.

¶232 I greatly respect my colleagues in the majority. Regardless, in 

my view, their analysis is flawed, it leaves issues unresolved, and, most 

distressingly, it unduly hinders public accommodation laws seeking to 

ensure that businesses serve persons equally regardless of their status, 

including sexual orientation. I dissent.
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUDGE STARING , Dissenting

77

STARING, J., dissenting.

¶233 I respectfully dissent, joining Justice Bales’s dissent. I write 

separately to briefly address the following points.

¶234 For “custom wedding invitations that are materially similar 

to the invitations contained in the record,” supra ¶ 112, the majority finds 

an exception to the general enforceability of public accommodation laws, 

see Masterpiece Cakeshop, 138 S. Ct. at 1727 (importance of limiting 

exceptions to public accommodation laws); Hurley, 515 U.S. at 572 (public 

accommodation laws “do not, as a general matter, violate the First or 

Fourteenth Amendments”). I am, however, very skeptical concerning the 

effectiveness of the majority’s expressions of limitation. It is hardly difficult 

to envision objections to providing public accommodations involving other 

forms of artistic expression no less substantial than the custom wedding 

invitations here. See Masterpiece Cakeshop, 138 S. Ct. at 1723 (“examples of 

possibilities that seem all but endless”). Is there, for example, a meaningful 

difference between drawings and lettering on cardstock and the same 

drawings and lettering on a cake? Must the baker use the piping bag to 

provide exactly the same message for the very same wedding the 

calligrapher may refuse to employ the pen? Our state’s lower courts—one 

of which I sit on—will struggle with limiting today’s holding when 

confronted with circumstances that are not meaningfully distinct. This case 

will sweep much more broadly than the majority expresses.

¶235 Among other things, I am concerned that, ironically, today’s 

holding could be relied on to discriminate against individuals based on 

their religion and religious beliefs, notwithstanding the fact that both 

Arizona and Phoenix include religion as a basis for protection in their 

public accommodation laws. See A.R.S. § 41-1442(A); PCC § 18-4(B). This 

concern is partially premised on the fact that, based on the plain language 

of A.R.S. § 41-1493.01(E), the holding in Hobby Lobby, and the axiomatic 

constitutional proscription against government evaluation of the validity of 

religious beliefs, see Masterpiece Cakeshop, 138 S. Ct. at 1731, the task of 

showing a substantial burdening of sincerely held religious beliefs under 

FERA may be accomplished with relative ease. In fact, in light of these 

authorities, I generally agree with the majority’s conclusion—although not 

with all facets of its analysis—that Brush & Nib has established that PCC 

§ 18-4(B) substantially burdens its owners’ free exercise of religion. But the 

ease with which a party may establish a substantial burden places a 

premium on correctly analyzing the compelling state interest and least 

restrictive means elements of FERA, particularly in a circumstance like 

considering whether to grant an exception to public accommodation laws. 
BRUSH & NIB ET AL. V. CITY OF PHOENIX

JUDGE STARING , Dissenting

78

Justice Bales correctly analyzes those elements in his dissent, which, as 

noted, I join.
 

APPENDIX 1






App. 269

App. 272









 





APPENDIX 2