Brush & Nib v. City of Phoenix ( 2019 )


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  •                                  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, Phoenix, Attorneys for City of Phoenix
    Nathan W. Kellum, Center for Religious Expression, Memphis, TN and
    Samuel J. Doncaster, Doncaster Law, PLLC, Phoenix, Attorneys for Amicus
    Curiae Center for Religious Expression
    Joshua Carden, Joshua Carden Law Firm, PC, Scottsdale Attorney for
    Amicus Curiae Jewish Coalition for Religious Liberty
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    David L. Rose, Rose Law Office PLLC, Phoenix, Attorneys for Amicus
    Curiae Arizona Legislators
    Stewart Salwin, Statecraft PLLC, Phoenix, Attorneys for Amicus Curiae
    Tyndale House Publishers, et al.
    Kevin L. Beckwith, Kevin L. Beckwith, PC, Phoenix, Attorneys for Amicus
    Curiae Law and Economics Scholars
    Michael L. Kitchen, Margrave Celmins, P.C., Scottsdale, Attorneys for
    Amicus Curiae Cato Institute, et al.
    Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona,
    Phoenix and Lindsey Kaley, American Civil Liberties Union Foundation,
    New York, NY, Attorneys for Amicus Curiae the American Civil Liberties
    Union, et al.
    Mark Brnovich, Arizona Attorney General, Rusty D. Crandell, Assistant
    Solicitor General, Angelina B. Nguyen, Unit Chief Counsel, Phoenix,
    Attorneys for Amicus Curiae State of Arizona, et al.
    Bert E. Moll, The Law Firm of Bert E. Moll, P.C., Chandler, Attorneys for
    Amicus Curiae Tyndale House Publishers, et al.
    Robert J. Bozelli, The Bozelli Law Firm, PC, Chandler, Attorneys for Amicus
    Curiae Professor Adam J. Macleod
    Roopali H. Desai, D. Andrew Gaona, Coppersmith Brockelman PLC,
    Phoenix, Attorneys for Amicus Curiae Bloom & Blueprint Event Co., LLC,
    et al.
    Roopali H. Desai, Coppersmith Brockelman PLC, Phoenix and Alex J.
    Luchenitser, Americans United for Separation of Church and State,
    Washington, DC, Attorneys for Amicus Curiae Americans United for
    Separation of Church and State, et al.
    Joshua Carden, Joshua Carden Law Firm, P.C., Scottsdale and Michael K.
    Whitehead, Whitehead Law Firm, LLC, Lee’s Summit, MO, Attorneys for
    Amicus Curiae Ethics & Religious Liberty Commission of the Southern
    Baptist Convention, et al.
    2
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    Stewart Salwin, Statecraft PLLC, Phoenix, Attorney for Amicus Curiae
    National Center for Law and Policy
    Daniel C. Barr, Barry G. Stratford, Randal B. McDonald, Katherine E. May,
    Lindsey M. Huang, Perkins Coie LLP, Phoenix, Attorneys for Amicus
    Curiae First Amendment Scholars
    Jessica M. Hernandez, MayesTelles PLLC, Phoenix and Jennifer C. Pizer,
    Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA,
    Attorneys for Amicus Curiae Lambda Legal Defense and Education Fund,
    Inc.
    Kenneth W. Schutt, Jr., Schutt Law Firm, P.L.C., Scottsdale, Attorneys for
    Amicus Curiae The C12 Group, LLC
    Amanda Salvione, Greenspoon Marder LLP, Phoenix, Attorney for Amicus
    Curiae ONE Community Media, LLC d/b/a ONE Community
    JUSTICE GOULD authored the opinion of the Court, in which JUSTICES
    BOLICK, LOPEZ, and PELANDER (RETIRED) joined. JUSTICE BOLICK
    filed a concurring opinion. JUSTICE BALES (RETIRED), joined by VICE
    CHIEF JUSTICE TIMMER and JUDGE STARING, ∗ dissented. VICE CHIEF
    JUSTICE TIMMER filed a dissenting opinion. JUDGE STARING filed a
    dissenting opinion.
    JUSTICE GOULD, opinion of the Court:
    ¶1            The rights of free speech and free exercise, so precious to this
    nation since its founding, are not limited to soft murmurings behind the
    doors of a person’s home or church, or private conversations with like–
    minded friends and family. These guarantees protect the right of every
    *Chief Justice Robert M. Brutinel has recused himself from this case.
    Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
    Christopher P. Staring, Judge of the Arizona Court of Appeals, Division
    Two, was designated to sit in this matter.
    3
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    American to express their beliefs in public. This includes the right to create
    and sell words, paintings, and art that express a person’s sincere religious
    beliefs.
    ¶2             With these fundamental principles in mind, today we hold
    that the City of Phoenix (the “City”) cannot apply its Human Relations
    Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski,
    owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom
    wedding invitations celebrating same-sex wedding ceremonies in violation
    of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib
    (“Plaintiffs”) have the right to refuse to express such messages under article
    2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise
    of Religion Act (“FERA”), A.R.S. § 41-1493.01.
    ¶3           Our holding is limited to Plaintiffs’ creation of custom
    wedding invitations that are materially similar to those contained in the
    record. See Appendix 1. We do not recognize a blanket exemption from the
    Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on
    jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of
    other wedding products may be exempt from the Ordinance. See Appendix
    2.
    ¶4               Duka and Koski’s beliefs about same-sex marriage may seem
    old-fashioned, or even offensive to some. But the guarantees of free speech
    and freedom of religion are not only for those who are deemed sufficiently
    enlightened, advanced, or progressive. They are for everyone. After all,
    while our own ideas may be popular today, they may not be tomorrow.
    Indeed, “[w]e can have intellectual individualism” and “rich cultural
    diversities . . . only at the price” of allowing others to express beliefs that
    we may find offensive or irrational. West Virginia State Board of Education v.
    Barnette, 
    319 U.S. 624
    , 641–42 (1943). This “freedom to differ is not limited
    to things that do not matter much . . . [t]he test of its substance is the right
    to differ as to things that touch the heart of the existing order.” 
    Id. at 642.
    ¶5              Given this reality, the government “must not be allowed to
    force persons to express a message contrary to their deepest convictions.”
    Nat’l Inst. of Family & Life Advocates v. Becerra (NIFLA), 
    138 S. Ct. 2361
    , 2379
    (2018) (Kennedy, J., concurring). Rather, Plaintiffs are entitled to
    continue to advocate with utmost, sincere conviction that, by
    divine precepts, same-sex marriage should not be condoned.
    The First Amendment ensures that religious organizations
    and persons are given proper protection as they seek to teach
    4
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    the principles that are so fulfilling and so central to their lives
    and faiths, and to their own deep aspirations to continue the
    family structure they have long revered.
    Obergefell v. Hodges, 
    135 S. Ct. 2584
    , 2607 (2015).
    ¶6             Although this case is about freedom of speech and religion, it
    suits the preferred analysis of our dissenting colleagues to reframe it as one
    involving discriminatory conduct based on a customer’s sexual orientation.
    This mischaracterization reflects neither Plaintiffs’ position nor our
    holding. Literally none of the examples of invidious, status-based
    discrimination the dissent invokes, see infra ¶ 217-18, would even be
    remotely permitted under our holding today. Plaintiffs must, and they do,
    serve all customers regardless of their sexual orientation. However, by
    focusing solely on the anti-discrimination purpose of the Ordinance, the
    dissent engages in a one–sided analysis that effectively deprives Plaintiffs
    of their fundamental right to express their beliefs. But no law, including a
    public accommodations law, is immune from the protections of free speech
    and free exercise. Rather, “[i]f there is any fixed star in our constitutional
    constellation, it is that no official, high or petty, can prescribe what shall be
    orthodox in politics, nationalism, religion, or other matters of opinion or
    force citizens to confess by word or act their faith therein.” 
    Barnette, 319 U.S. at 642
    .
    ¶7             The enduring strength of the First Amendment is that it
    allows people to speak their minds and express their beliefs without
    government interference. But here, the City effectively cuts off Plaintiffs’
    right to express their beliefs about same–sex marriage by telling them what
    they can and cannot say. And to justify this action, both the City and the
    primary dissent claim that if we dare to allow Plaintiffs to express their
    beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the
    Old South.
    ¶8             But casting Plaintiffs’ free speech and exercise rights in such
    a cynical light does grave harm to a society. As Justice Jackson observed in
    Barnette, “[s]truggles to coerce uniformity of sentiment in support of some
    end thought essential to their time and country have been waged by many
    good as well as by evil men,” but, inevitably “those bent on its
    accomplishment must resort to an ever-increasing severity.” 
    Barnette, 319 U.S. at 640
    . We would be wise to heed his warning about government
    efforts to compel uniformity of beliefs and ideas:
    5
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    [a]s governmental pressure toward unity becomes greater, so
    strife becomes more bitter as to whose unity it shall
    be. . . . . Ultimate futility of such attempts to compel
    coherence is the lesson of every such effort from the Roman
    drive to stamp out Christianity as a disturber of its pagan
    unity, the Inquisition, as a means to religious and dynastic
    unity, the Siberian exiles as a means to Russian unity, down
    to the fast failing efforts of our present totalitarian enemies.
    Those who begin coercive elimination of dissent soon find
    themselves exterminating dissenters. Compulsory unification
    of opinion achieves only the unanimity of the graveyard.
    
    Id. at 641.
    I.
    ¶9             Duka and Koski are the sole member-owners of Brush & Nib,
    a for-profit limited liability company. Duka and Koski operate Brush & Nib
    as an “art studio” specializing in creating custom artwork for weddings,
    events, special occasions, home décor, and businesses. Duka and Koski
    work out of Koski’s home and personally design and create their products.
    In addition to custom-designed products, Brush & Nib sells some pre-made
    products. Duka and Koski do not maintain Brush & Nib as a brick-and-
    mortar store but instead sell their products online through various media
    platforms.
    ¶10          Apart from Plaintiffs’ custom wedding invitations, the record
    contains only a few examples of their products. In contrast, there are
    numerous examples of Plaintiffs’ custom wedding invitations. See
    Appendix 1. All these custom invitations feature Plaintiffs’ hand-drawn
    images and paintings, custom lettering and calligraphy, as well as their
    original artwork. Additionally, the names of a female bride and a male
    groom are prominently displayed in every custom invitation.
    ¶11            The City concedes that “[a]ll the custom wedding invitations
    Brush & Nib creates include language that is celebratory of the wedding.”
    Specifically, Plaintiffs create and write celebratory statements in every
    custom invitation, including such statements as “[the couple or their
    parents] request the pleasure of your company at the celebration of their
    marriage,” “request the honor of your presence,” “invite you to the
    celebration of their marriage,” or “invite you to share in the joy of their
    marriage.” (Emphasis added.)
    6
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶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–
    7
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    5, which states that God “made them male and female, and said, [f]or this
    reason a man shall leave his father and mother and be joined to his wife,
    and the two shall become one.” (Internal quotation marks omitted.) Duka
    testified that she believes that marriage reflects God’s glory and presents a
    picture of “Christ and his love for the church.”
    ¶16           As a tenet of their faith, Duka and Koski do not believe that
    two people of the same sex can be married. Plaintiffs stress that they will
    create custom artwork for, and sell pre-made artwork to, any customers
    regardless of their sexual orientation. However, they believe that creating
    a custom wedding invitation that conveys a message celebrating same-sex
    marriage, for any customer regardless of sexual orientation, violates their
    sincerely held religious convictions.
    A.     The Ordinance
    ¶17           The City of Phoenix’s Ordinance, as amended in 2013,
    prohibits public accommodations from discriminating against persons
    based on their status in a “protected” group, which includes a person’s
    sexual orientation. Phx., Ariz., City Code (“PCC”) § 18-4(B). In contrast,
    neither Arizona’s public accommodations law nor the federal civil rights
    public accommodations statute lists sexual orientation as a legally
    protected status. See A.R.S. § 41-1442(A); 42 U.S.C. § 2000a(a).
    ¶18             Under the Ordinance, public accommodations include “all
    establishments offering their services, facilities or goods to or soliciting
    patronage from the members of the general public.” PCC § 18-3. Section
    18-4(B)(2) makes it unlawful for any business operating as a public
    accommodation to “directly or indirectly[] refuse, withhold from, or deny
    to    any      person . . . accommodations,     advantages,    facilities   or
    privileges . . . because of” a person’s status in a protected group.
    Additionally, the Ordinance forbids such businesses from making any
    “distinction . . . with respect to any person based on” status with respect to
    “the price or quality of any item, goods or services offered.” PCC § 18-
    4(B)(2).
    ¶19           Section 18-4(B)(3) also makes it unlawful for a public
    accommodation “to directly or indirectly display, circulate, publicize or
    mail any advertisement, notice or communication which states or implies
    that any facility or service shall be refused or restricted because of” a
    person’s status. This subsection also prohibits displays or publications that
    state or imply that based on a person’s status they “would be unwelcome,
    objectionable, unacceptable, undesirable or not solicited.” 
    Id. 8 BRUSH
    & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶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
    9
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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).
    10
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶29            Plaintiffs concede Brush & Nib is a public accommodation as
    defined by PCC § 18-3. However, they argue that the Ordinance, as applied
    by the City, compels them to use their artistic talents and personal
    expression to create custom invitations celebrating same-sex weddings in
    violation of their free speech rights under article 2, section 6 of the Arizona
    Constitution and their free exercise rights under FERA. Plaintiffs assert
    they will serve all customers, regardless of their sexual orientation.
    However, they refuse to create or express certain messages, regardless of
    who makes the request. This includes creating custom invitations that
    celebrate a same-sex marriage ceremony.
    ¶30            The City concedes that the Ordinance does not require Duka
    and Koski to express any messages condoning or celebrating same-sex
    marriage. Thus, for example, the City agrees that the Ordinance does not
    require Duka and Koski to create a custom invitation containing the
    statement, “support gay marriage,” or symbols, such as the equal sign of
    the Human Rights Campaign, that would be recognized by a third-party
    observer as expressly endorsing same-sex marriage. The City argues,
    however, that the Ordinance, as applied to Plaintiffs’ custom wedding
    invitations, regulates conduct, not speech. Thus, by refusing to create or
    sell such invitations for use in same-sex weddings, the City contends that
    Plaintiffs are engaging in discriminatory conduct prohibited by the
    Ordinance.
    ¶31            For their remedy, Plaintiffs generally seek relief permitting
    them to (1) refuse requests to create custom-made wedding products for
    same-sex weddings, and (2) post their Statement regarding their intention
    to refuse such services. Alternatively, Plaintiffs seek partial relief limited to
    their creation of custom wedding invitations that are “materially similar”
    to the invitations contained in the record.
    ¶32             Plaintiffs originally raised both facial and as-applied
    challenges to the constitutionality of the Ordinance. However, because
    Plaintiffs’ facial challenge was limited to the provision struck down by the
    court of appeals (a ruling neither party challenges here), only Plaintiffs’ as-
    applied challenge remains. See Brush & 
    Nib, 244 Ariz. at 75
    –76 ¶¶ 43–45 &
    n.12. Thus, we need not consider the general validity of the Ordinance or
    the Ordinance’s application to other individuals or businesses that are not
    before this Court. See Boddie v. Connecticut, 
    401 U.S. 371
    , 379 (1971) (stating
    that “a statute or a rule may be held constitutionally invalid as applied
    when it operates to deprive an individual of a protected right although its
    general validity . . . is beyond question,” and that “in cases involving
    religious freedom, free speech or assembly, this Court has often held that a
    11
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    valid statute was unconstitutionally applied in particular circumstances
    because it interfered with an individual’s exercise of those rights”).
    III.
    ¶33            The City argues the trial court erred in denying its motion to
    dismiss based on Plaintiffs’ lack of standing. Specifically, the City asserts
    that because Plaintiffs filed this action “before any same-sex couple had
    requested custom wedding products,” their lawsuit is based on speculative
    claims about how the Ordinance might apply to hypothetical customer
    requests involving Plaintiffs’ entire range of custom products. Because
    none of these abstract legal claims may ever arise, the City contends that
    Plaintiffs’ action challenging PCC § 18-4(B)(2) is not ripe and should be
    dismissed.
    ¶34           We ordinarily review a trial court’s ruling on a motion to
    dismiss for an abuse of discretion, Legacy Foundation Action Fund v. Citizens
    Clean Elections Commission, 
    243 Ariz. 404
    , 405 ¶ 6 (2018), but questions of
    standing and ripeness are reviewed de novo, In re Estate of Stewart, 
    230 Ariz. 480
    , 483–84 ¶ 11 (App. 2012) (ripeness); Aegis of Ariz., L.L.C. v. Town of
    Marana, 
    206 Ariz. 557
    , 562 ¶ 16 (App. 2003) (standing).
    ¶35            Although the Arizona Constitution does not have a case or
    controversy requirement like the Federal Constitution, we do apply the
    doctrines of standing and ripeness “as a matter of sound judicial policy.”
    Bennett v. Napolitano, 
    206 Ariz. 520
    , 524 ¶ 16 (2003). Because in this case the
    underlying concerns for standing and ripeness are the same, we simply use
    the term “ripeness” to apply to both doctrines here. See Thomas v. Anchorage
    Equal Rights Comm’n, 
    220 F.3d 1134
    , 1138 (9th Cir. 2000) (“The constitutional
    component of the ripeness inquiry is often treated under the rubric of
    standing and, in many cases, ripeness coincides squarely with standing’s
    injury in fact prong.”); Town of Gilbert v. Maricopa Cty., 
    213 Ariz. 241
    , 244 ¶ 8
    (App. 2006) (stating that “[r]ipeness is analogous to standing”).
    ¶36            Ripeness is a prudential doctrine that prevents a court from
    rendering a premature decision on an issue that may never arise. Winkle v.
    City of Tucson, 
    190 Ariz. 413
    , 415 (1997). Though federal justiciability
    jurisprudence is not binding on Arizona courts, the factors federal courts
    use to determine whether a case is justiciable are instructive. See 
    Bennett, 206 Ariz. at 525
    ¶ 22. Thus, as a general matter, if the plaintiff has incurred
    an injury, the case is ripe. See Brewer v. Burns, 
    222 Ariz. 234
    , 238 ¶ 15 (2009).
    A case is also ripe if there is an actual controversy between the parties.
    Estate of 
    Stewart, 230 Ariz. at 484
    ¶ 12; see Planned Parenthood Ctr. of Tucson,
    12
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    13
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    “imaginary” or “speculative” to be ripe. 
    Thomas, 220 F.3d at 1139
    (quoting
    
    Babbitt, 442 U.S. at 298
    ).
    ¶40           Additionally, given the City’s assertion that it can apply the
    Ordinance to Plaintiffs’ custom wedding invitations, which includes the
    threat of criminal prosecution and significant penalties, Plaintiffs have
    suffered an injury through the chilling of their free speech and free exercise
    rights. Virginia v. Am. Booksellers Ass’n, 
    484 U.S. 383
    , 392–93 (1988) (holding
    there was an injury to challenger’s speech rights prior to a challenged
    criminal statute becoming effective, where the state never stated it would
    not enforce the statute).
    ¶41           Accordingly, we agree with the trial court and the court of
    appeals that, to the extent Plaintiffs’ action is based on their custom
    wedding invitations, it is justiciable. We therefore affirm the trial court and
    the court of appeals’ denial of the City’s motion to dismiss as to Plaintiffs’
    custom wedding invitations. Brush & 
    Nib, 244 Ariz. at 68
    –69 ¶ 16.
    However, Plaintiffs’ claims based on their remaining custom products are
    not ripe, and we therefore reverse and grant the City’s motion to dismiss as
    to these products.
    IV.
    ¶42            Plaintiffs allege that the Ordinance, as applied by the City,
    compels them to create custom wedding invitations celebrating same-sex
    marriage in violation of Arizona’s free speech clause. See Ariz. Const. art.
    2, § 6 (stating that “[e]very person may freely speak, write, and publish on
    all subjects, being responsible for the abuse of that right”).
    ¶43            Generally, “[w]e will not reach a constitutional question if a
    case can be fairly decided on non[-]constitutional grounds.” R.L. Augustine
    Constr. Co., Inc. v. Peoria Unified Sch. Dist. No. 11, 
    188 Ariz. 368
    , 370 (1997).
    However, when constitutional and non-constitutional issues are
    intertwined in a case, we must address the constitutional issue. See State v.
    Church, 
    109 Ariz. 39
    , 41 (1973); Katherine S. v. Foreman, 
    197 Ariz. 371
    , 378
    ¶ 16 (App. 1999) (deciding constitutional issue because the issue was
    “intertwined” with non-constitutional issue and citing Church for the
    proposition that the “fact that constitutional and non-constitutional issues
    are interwoven justifies addressing all issues”).
    ¶44           Here, because Plaintiffs’ FERA claim is closely intertwined
    with their free speech claim, we find it necessary to address the
    constitutional issue in this case. Katherine 
    S., 197 Ariz. at 378
    ¶ 16; see also
    Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 
    536 U.S. 150
    ,
    14
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    160-69 (2002) (discussing both freedom of speech and free exercise as the
    plaintiff’s exercise of both rights were affected by challenged law); cf.
    Employment Div. v. Smith, 
    494 U.S. 872
    , 881-82 (1990) (collecting cases
    analyzing both freedom of speech and free exercise); Masterpiece Cakeshop,
    Ltd. v. Colo. Civil Rights Comm’n, 
    138 S. Ct. 1719
    , 1740–48 (2018) (Thomas, J.,
    concurring) (analyzing free speech issue despite concluding that
    challengers’ free exercise rights were violated). The legal and factual
    questions underlying Plaintiffs’ free speech and FERA claims require us to
    address the same basic issues: (1) whether the Ordinance, as applied by the
    City, compels Plaintiffs to express a message that violates their religious
    convictions, and (2) if so, whether Plaintiffs have a protected right to refuse
    to express that message in the operation of their business.
    ¶45             In examining the text of Arizona’s free speech clause, we first
    observe that whereas the First Amendment is phrased as a constraint on
    government, U.S. Const. amend. I (“Congress shall make no law . . .
    abridging the freedom of speech.”), our state’s provision, by contrast, is a
    guarantee of the individual right to “freely speak, write, and publish,”
    subject only to constraint for the abuse of that right. See State v. Stummer,
    
    219 Ariz. 137
    , 142 ¶ 14 (2008); see also 
    id. ¶ 15
    (“The encompassing text of
    [a]rticle 2, [s]ection 6 indicates the Arizona framers’ intent to rigorously
    protect freedom of speech.”). Thus, by its terms, the Arizona Constitution
    provides broader protections for free speech than the First Amendment.
    See, e.g., Coleman v. City of Mesa, 
    230 Ariz. 352
    , 361 ¶ 36 n.5 (2012) (stating
    that article 2, section 6 “is in some respects more protective of free speech
    rights than the First Amendment”); 
    Stummer, 219 Ariz. at 143
    ¶ 17 (“We
    have also stated that [a]rticle 2, [s]ection 6 has ‘greater scope than the [F]irst
    [A]mendment.’” (citation omitted)); Mountain States Tel. & Tel, Co. v. Ariz.
    Corp. Comm’n, 
    160 Ariz. 350
    , 356 (1989) (“[W]e apply here the broader
    freedom of speech clause of the Arizona Constitution.”).
    ¶46            However, although article 2, section 6 does, by its terms,
    provide greater speech protection than the First Amendment, we have
    rarely explored the contours of that right. Rather, we have often relied on
    federal case law in addressing free speech claims under the Arizona
    Constitution. 
    Stummer, 219 Ariz. at 142
    ¶ 16 (stating that “Arizona courts
    have had few opportunities to develop Arizona’s free speech
    jurisprudence,” and in “construing [a]rticle 2, [s]ection 6 have followed
    federal interpretations of the United States Constitution”); Mountain 
    States, 160 Ariz. at 358
    (looking to First Amendment precedent in determining that
    a government regulation violated Arizona’s free speech clause). Here,
    while Plaintiffs generally assert that their compelled speech claim, see infra
    Section IV(A)–(D), is based on the Arizona Constitution, in arguing that
    15
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    claim they rely almost exclusively on federal cases construing the First
    Amendment.
    ¶47            This, however, presents no difficulty for us in resolving
    Plaintiffs’ compelled speech claim. Specifically, because federal precedent
    conclusively resolves Plaintiffs’ claim, we can adequately address it under
    First Amendment jurisprudence. And, because a violation of First
    Amendment principles “necessarily implies” a violation of the broader
    protections of article 2, section 6 of the Arizona Constitution, by applying
    First Amendment jurisprudence, we therefore address Plaintiffs’ state
    claim. 
    Coleman, 230 Ariz. at 361
    ¶ 36 n.5 (noting that because plaintiffs had
    adequately stated a claim under the First Amendment, this “necessarily
    implie[d] that they ha[d] also stated claims under [a]rticle 2, [s]ection 6 of
    Arizona’s Constitution,” and thus there was no need to address whether
    Arizona’s free speech clause “might afford greater protection . . . than
    applies under the First Amendment”); see also Mountain 
    States, 160 Ariz. at 358
    (“As we have already determined that ‘narrow specificity’ is a
    requirement of a time, place, and manner regulation under the [F]irst
    [A]mendment, we must hold the same under the more stringent protections
    of the Arizona Constitution.”).
    A. Compelled Speech
    ¶48            The compelled speech doctrine is grounded on the principle
    that freedom of speech “includes both the right to speak freely and the right
    to refrain from speaking at all.” Wooley v. Maynard, 
    430 U.S. 705
    , 714 (1977);
    see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 
    515 U.S. 557
    ,
    573 (1995) (“[O]ne important manifestation of the principle of free speech is
    that one who chooses to speak may also decide what not to say.” (citation
    and internal quotation marks omitted)); Riley v. Nat’l Fed’n of the Blind of
    N.C., 
    487 U.S. 781
    , 796–97 (1988) (stating that the First Amendment
    guarantee of free speech necessarily includes the freedom of deciding “both
    what to say and what not to say”).
    ¶49            The compelled speech doctrine was first articulated in
    Barnette. There, the Supreme Court addressed a state law requiring a child
    who was a Jehovah’s Witness to salute the American 
    flag. 319 U.S. at 626
    –
    29. For both the child and his parents, saluting the flag violated their
    religious beliefs. 
    Id. at 629.
    The Court struck down the law as violating the
    First Amendment, stating that the government cannot compel any
    individual “to utter what is not in his mind,” 
    id. at 634,
    and that all citizens
    have autonomy over their “opinion[s] and personal attitude[s],” 
    id. at 631,
    636; see also Turner Broad. Sys., Inc. v. FCC, 
    512 U.S. 622
    , 641 (1994) (stating
    16
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    that “[a]t the heart of the First Amendment lies the principle that each
    person should decide for himself or herself the ideas and beliefs deserving
    of expression, consideration, and adherence,” and that any “[g]overnment
    action that . . . requires the utterance of a particular message favored by the
    Government[] contravenes this essential right”).
    ¶50            There are, generally speaking, two lines of cases addressing
    compelled speech. The first involves regulations requiring an individual to
    express a prescribed government message. For example, in Wooley, the
    Court held that a law was unconstitutional because it forced a Jehovah’s
    Witness, in violation of his religious beliefs, to display the state motto “Live
    Free or Die” on his license 
    plate. 430 U.S. at 707
    –08, 717; see also 
    NIFLA, 138 S. Ct. at 2368
    –69, 2378 (holding that plaintiffs were likely to succeed in their
    claim that a state law unconstitutionally compelled speech by requiring
    crisis pregnancy centers, which were established to prevent abortions, to
    disseminate prescribed government notices about public funding for
    abortion services).
    ¶51           A second line of compelled speech cases involves a
    government regulation that compels a person to host or accommodate
    another’s message. See, e.g., 
    Hurley, 515 U.S. at 572
    –73, 581 (holding that a
    state public accommodations law could not be used to compel a parade
    sponsor to host or accommodate messages from parade participants the
    sponsor found to be objectionable). This line of cases includes government
    regulations compelling a person to engage in self-censorship to avoid
    hosting another’s message, as well as regulations forcing a person to
    respond to another’s speech when they would prefer to remain silent. See
    Pac. Gas & Elec. Co. v. Pub. Util. Comm’n, 
    475 U.S. 1
    , 5–7, 16–17, 21 (1986)
    (plurality opinion) (holding that a regulation requiring a privately-owned
    utility to include, along with its monthly bills, an editorial newsletter
    published by a consumer group that was critical of its ratemaking practices
    violated the utility’s free speech rights because the utility might “feel
    compelled to respond to arguments and allegations made by [the consumer
    group]”); Miami Herald Publ’g Co. v. Tornillo, 
    418 U.S. 241
    , 244, 256–58 (1974)
    (holding that a statute granting political candidates the right to reply to
    unfavorable newspaper articles violated the First Amendment because it
    forced newspapers to either respond to the candidates’ replies or engage in
    compelled self-censorship by forgoing printing any articles criticizing a
    candidate).
    ¶52          The fundamental principle underlying both lines of
    compelled speech cases is that an individual has autonomy over his or her
    speech and thus may not be forced to speak a message he or she does not
    17
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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.
    18
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶55           The Supreme Court concluded that requiring Janus to pay the
    agency fees violated his free speech rights because it compelled him to
    subsidize the union’s speech. 
    Id. at 2466,
    2486. The Court stated that
    “[c]ompelling individuals to mouth support for views they find
    objectionable violates” the “cardinal constitutional command” that
    individuals have autonomy over their speech. 
    Id. at 2463.
    The Court
    explained that “[f]ree speech serves many ends,” and “[w]henever the
    Federal Government or a State prevents individuals from saying what they
    think on important matters or compels them to voice ideas with which they
    disagree, it undermines these ends.” 
    Id. at 2464.
    The Court further
    explained that “[w]hen speech is compelled . . . additional damage is done”
    because it “forc[es] free and independent individuals to endorse ideas they
    find objectionable[, which] is always demeaning,” and coerces individuals
    “into betraying their convictions.” 
    Id. B. Protected
    Speech
    ¶56           To prevail on their compelled speech claim, Plaintiffs first
    must show that their custom wedding invitations are protected speech
    under the First Amendment. See 
    Hurley, 515 U.S. at 568
    –70 (examining
    whether, as a threshold matter, a parade involves protected speech); see also
    Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (FAIR), 
    547 U.S. 47
    , 64 (2006)
    (determining, as an initial matter, that access to law school interview rooms
    did not involve protected speech); 
    Coleman, 230 Ariz. at 357
    ¶ 18 (“To
    determine if the Colemans have stated a claim for a violation of their free
    speech rights, we must determine whether tattooing is constitutionally
    protected expression.”).
    ¶57           Plaintiffs assert that their custom invitations are “pure
    speech,” and therefore fully protected. The City, however, contends that
    Plaintiffs’ invitations contain no constitutionally relevant speech
    component. Rather, according to the City, applying the Ordinance to
    require Duka and Koski to create custom invitations for same-sex weddings
    purely involves conduct, without implicating speech.
    1. Pure Speech
    ¶58            Pure speech is protected under both the Arizona Constitution
    and the First Amendment. 
    Coleman, 230 Ariz. at 357
    –58 ¶¶ 18–19, 361 ¶ 36
    n.5; see also Anderson v. City of Hermosa Beach, 
    621 F.3d 1051
    , 1058 (9th Cir.
    2010). Pure speech includes written and spoken words, as well as other
    media such as paintings, music, and film “that predominantly serve to
    express thoughts, emotions, or ideas.” 
    Coleman, 230 Ariz. at 358
    ¶ 18; see
    19
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    also Brown v. Entm’t Merchs. Ass’n, 
    564 U.S. 786
    , 790 (2011) (stating that
    books, plays, films, and video games are protected pure speech); 
    Hurley, 515 U.S. at 569
    (stating that music, painting, and poetry are examples of
    speech that are “unquestionably shielded” under the First Amendment);
    Kaplan v. California, 
    413 U.S. 115
    , 119–20 (1973) (stating that “pictures, films,
    paintings, drawings, and engravings” enjoy First Amendment protection).
    Additionally, this Court has concluded that tattoos are pure speech.
    
    Coleman, 230 Ariz. at 358
    –59 ¶ 23 (citing 
    Anderson, 621 F.3d at 1059
    –60
    (holding that tattoos are pure speech and thus “entitled to full First
    Amendment protection”)).
    ¶59             Pure speech also includes original artwork. See Cressman v.
    Thompson, 
    798 F.3d 938
    , 952 (10th Cir. 2015) (holding that paintings,
    drawings, and original artwork are protected pure speech); White v. City of
    Sparks, 
    500 F.3d 953
    , 955–56 (9th Cir. 2007) (stating that original artwork is
    protected speech); ETW Corp. v. Jireh Publ’g, Inc., 
    332 F.3d 915
    , 924 (6th Cir.
    2003) (same); Bery v. City of New York, 
    97 F.3d 689
    , 694–96 (2d Cir. 1996)
    (same). As one court has stated, the First Amendment protects “art for art’s
    sake.” Piarowski v. Ill. Cmty. Coll. Dist. 515, 
    759 F.2d 625
    , 628 (7th Cir. 1985);
    see also Jucha v. City of North Chicago, 
    63 F. Supp. 3d 820
    , 825 (N.D. Ill. 2014)
    (“There is no doubt that the First Amendment protects artistic
    expression.”).
    ¶60           Protection for pure speech is not solely based on the medium
    itself. See 
    Coleman, 230 Ariz. at 359
    ¶ 24 (stating that “whether or not
    something is ‘speech’ protected by the First Amendment cannot focus upon
    the medium chosen for its expression” (citation and internal quotation
    marks omitted)). Rather, words, pictures, paintings, and films qualify as
    pure speech when they are used by a person as a means of self-expression.
    See 
    Hurley, 515 U.S. at 576
    (stating that self-expression exists where the
    speaker is “intimately connected with the communication advanced”);
    
    Cressman, 798 F.3d at 954
    (“Pure-speech treatment is only warranted for
    those images whose creation is itself an act of self-expression.”); Jucha, 63 F.
    Supp. 3d at 827 (stating that pure speech involves self-expression through
    art and other forms of “expressive media”). Thus, for example, a painting
    is pure speech when an artist paints it to express his personal “vision of
    movement and color.” 
    White, 500 F.3d at 956
    .
    ¶61           In addition to pure speech, the First Amendment also protects
    conduct that is “sufficiently imbued with elements of communication.”
    Texas v. Johnson, 
    491 U.S. 397
    , 404 (1989) (quoting Spence v. Washington, 
    418 U.S. 405
    , 409 (1974)); see 
    Coleman, 230 Ariz. at 358
    ¶ 19. However, because
    “an apparently limitless variety of conduct can be labeled ‘speech,’” United
    20
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    States v. O’Brien, 
    391 U.S. 367
    , 376 (1968), an “interpretive step” is necessary
    to determine whether conduct contains an expressive element. 
    Anderson, 621 F.3d at 1061
    . To make this determination, the Supreme Court has
    formulated a two-part test (referred to as the “Spence-Johnson test”): (1)
    whether the speaker intends for the conduct to convey a “particularized
    message,” and (2) the “likelihood [is] great” that a reasonable third-party
    observer would understand the message. 
    Spence, 418 U.S. at 410
    –11; see
    
    Johnson, 491 U.S. at 404
    ; 
    Coleman, 230 Ariz. at 358
    ¶ 19 (discussing the Spence-
    Johnson test).
    ¶62            Courts do not apply the Spence-Johnson test to pure speech.
    For example, in Hurley, the Court stated that “a narrow, succinctly
    articulable message is not a condition of constitutional protection” for
    expression such as the “painting of Jackson Pollock, music of Arnold
    Schöenberg, or Jabberwocky verse of Lewis 
    Carroll.” 515 U.S. at 569
    ; see
    also 
    Anderson, 621 F.3d at 1060
    (citing Hurley for the proposition that the
    Spence-Johnson test does not apply to pure speech); 
    Coleman, 230 Ariz. at 359
    ¶ 27 (citing Hurley for the proposition that the Spence-Johnson test “does not
    apply to paintings and music”); Klein v. Or. Bureau of Labor & Indus., 
    410 P.3d 1051
    , 1069–70 (Or. Ct. App. 2017) (citing Hurley for the proposition that
    “a particularized, discernible message is not a prerequisite for First
    Amendment protection” for various forms of pure speech, such as art,
    music, and video games), vacated and remanded for further consideration, 
    139 S. Ct. 2713
    (2019) (mem.).
    ¶63            Likewise, in Coleman, we stated that “purely expressive
    activity,” or pure speech, “is entitled to full First Amendment protection,”
    but “conduct with an expressive component” is only protected if it satisfies
    the Spence-Johnson 
    test. 230 Ariz. at 358
    ¶ 19 (quoting 
    Anderson, 621 F.3d at 1059
    ); see also 
    Anderson, 621 F.3d at 1060
    (holding that pure speech is
    protected “without relying on the Spence[-Johnson] test”); Jucha, 
    63 F. Supp. 3d
    at 827 (holding that “where the case involves purely expressive works
    of art or other expressive media, it is not appropriate to apply Spence”); cf.
    
    Klein, 410 P.3d at 1070
    n.8 (stating that “as we understand the Supreme
    Court to have held[], because the creation of artwork and other inherently
    expressive acts are unquestionably undertaken for an expressive purpose,
    they need not express an articulable message to enjoy First Amendment
    protection”).
    2.   Business Activity
    ¶64          Generally, there is no free speech protection for non-
    expressive business activities. See 
    Coleman, 230 Ariz. at 360
    ¶ 31 (stating
    21
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    that “generally applicable laws, such as taxes, health regulations, or
    nuisance ordinances, may apply to” expressive businesses); see also Citizen
    Publ’g Co. v. United States, 
    394 U.S. 131
    , 139–40 (1969) (holding that there is
    no First Amendment protection for newspaper publishing companies that
    engage in specific monopolistic commercial practices that violate antitrust
    laws); Okla. Press Publ’g Co. v. Walling, 
    327 U.S. 186
    , 192–93 (1946) (holding
    that the Fair Labor Standards Act applies to all business and that there is no
    First Amendment exemption from the Act for newspaper publishing and
    distribution companies).
    ¶65           However, some businesses, like tattoo studios and video
    game companies, do create and sell products that are protected free speech.
    
    Brown, 564 U.S. at 790
    (video games); 
    Coleman, 230 Ariz. at 355
    ¶ 2 (tattoos).
    For such products, both the finished product and the process of creating
    that product are protected speech. 
    Coleman, 230 Ariz. at 360
    ¶ 26 (holding
    that “the process of tattooing is expressive activity”).
    ¶66           A business does not forfeit the protections of the First
    Amendment because it sells its speech for profit. As we stated in Coleman,
    the “degree of First Amendment protection is not diminished merely
    because the [protected expression] is sold rather than given 
    away.” 230 Ariz. at 360
    ¶ 31 (alteration in original) (quoting City of Lakewood v. Plain
    Dealer Publ’g Co., 
    486 U.S. 750
    , 756 n.5 (1988)). Likewise, the Supreme Court
    stressed in Riley that “a speaker’s rights are not lost merely because
    compensation is received; a speaker is no less a speaker because he or she
    is paid to 
    speak.” 487 U.S. at 801
    ; see also 
    Hurley, 515 U.S. at 573
    –74 (stating
    the right to autonomy of speech and freedom from compelled speech is
    “enjoyed by business corporations generally,” including “professional
    publishers”); Joseph Burstyn, Inc. v. Wilson, 
    343 U.S. 495
    , 501 (1952) (holding
    that motion picture companies that operate for profit are “a form of
    expression whose liberty is safeguarded by the First Amendment”).
    ¶67            However, simply because a business creates or sells speech
    does not mean that it is entitled to a blanket exemption for all its business
    activities. Like other organizations and associations, no business “is likely
    ever to be exclusively engaged in expressive activities,” and even the most
    expressive business will be engaged in non-expressive business activities.
    Roberts v. U.S. Jaycees, 
    468 U.S. 609
    , 635 (1984) (O’Connor, J., concurring in
    part and in the judgment). Thus, for example, in Pittsburgh Press Co. v.
    Pittsburgh Commission on Human Relations, 
    413 U.S. 376
    , 385–88, 390–91
    (1973), the Supreme Court held that while the First Amendment protected
    the content of articles published by a newspaper, it did not protect the
    newspaper’s facilitation of illegal hiring practices by publishing gender-
    22
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    specific employment advertisements. See also Arcara v. Cloud Books, Inc., 
    478 U.S. 697
    , 698–99, 705–06 & n.3 (1986) (holding that adult bookstore owner,
    who allowed prostitution to be solicited on his business premises, was
    engaged in “‘nonspeech’ conduct” that “manifest[ed] absolutely no element
    of protected expression,” and stating that “First Amendment values may
    not be invoked by merely linking the words ’sex’ and ‘books’”); Hishon v.
    King & Spalding, 
    467 U.S. 69
    , 78 (1984) (stating that while law firms may
    engage in free speech and freedom of association, there is no free speech
    protection to engage in discriminatory employment practices).
    3. Plaintiffs’ Custom Wedding Invitations
    ¶68           Here, the First Amendment does not protect all of Plaintiffs’
    business activities or products simply because they operate Brush & Nib as
    an “art studio.” However, Plaintiffs’ custom wedding invitations, and the
    process of creating them, are protected by the First Amendment because
    they are pure speech. Each custom invitation created by Duka and Koski
    contains their hand-drawn words, images, and calligraphy, as well as their
    hand-painted images and original artwork. Additionally, Duka and Koski
    are intimately connected with the words and artwork contained in their
    invitations. See 
    Hurley, 515 U.S. at 576
    (stating that protected speech
    involves communications that are “intimately connected” with the
    speaker). For each invitation, Duka and Koski spend many hours designing
    and painting custom paintings, writing words and phrases, and drawing
    images and calligraphy. Moreover, they insist on retaining artistic control
    over the ideas and messages contained in the invitations to ensure they are
    consistent with their religious beliefs.
    ¶69           In short, here, like tattoos and the process of tattooing in
    Coleman, Plaintiffs’ custom wedding invitations, and the creation of those
    invitations, constitute pure speech entitled to full First Amendment
    
    protection. 230 Ariz. at 359
    ¶¶ 23, 26.
    ¶70            The City argues, however, that Plaintiffs’ custom invitations
    do not implicate pure speech protection because they often only convey
    “logistical” information (such as date, time, and location) about a wedding.
    Thus, like the scheduling emails in FAIR, the City contends that Plaintiffs’
    custom invitations do not implicate speech in a constitutionally relevant
    way.
    ¶71           We disagree. The City concedes that every custom invitation
    contains “language that is celebratory of the wedding.” Moreover, viewing
    the invitations as a whole, it is clear that Plaintiffs’ artwork, calligraphy,
    23
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    and hand-lettering is designed to express a celebratory message about each
    wedding. See 
    Riley, 487 U.S. at 795
    –96 (stating that courts view the
    expressive content of speech as a whole, and do not separately analyze each
    word and phrase); cf. 
    Hurley, 515 U.S. at 568
    (stating that a parade, as a form
    of expression, must be viewed as a whole, and cannot be reduced to “just
    motion” or simply the observable fact that it involves a group of people
    marching from one destination to another). Moreover, Plaintiffs’ inclusion
    of original artwork and celebratory words and phrases has an emotive
    impact on the overall message of the invitations. See Cohen v. California, 
    403 U.S. 15
    , 26 (1971) (stating that in analyzing speech, words “are often chosen
    as much for their emotive as their cognitive force,” and the emotional force
    “may often be the more important element of the overall message sought to
    be communicated”).
    ¶72           The City’s comparison of this case to FAIR is inapt. In FAIR,
    an association of law schools and law faculties challenged the
    constitutionality of the Solomon 
    Amendment. 547 U.S. at 52
    –53. That law
    required the Department of Defense to deny federal funding to any
    institution of higher education, including law schools, that prohibited
    military recruiters from gaining access to campuses. 
    Id. at 51–53.
    Because
    Congress had adopted a “Don’t Ask, Don’t Tell” policy excluding gays and
    lesbians from serving in the military, FAIR objected, on free speech
    grounds, to providing the military access to their campuses for recruiting
    purposes. See 
    id. at 52–53
    & n.1.
    ¶73           The Court rejected FAIR’s free speech claim. Specifically, it
    concluded that FAIR’s actions in denying or granting access to their
    campuses involved conduct, not speech. 
    Id. at 62.
    Additionally, the Court
    stated that the emails and notices FAIR sent to students advising them
    about the dates, times, and locations the military was on campus were
    “plainly incidental to the Solomon Amendment’s regulation of conduct.”
    
    Id. Simply because
    FAIR used words “either spoken, written, or printed”
    as a means to grant access to their campuses did not transform FAIR’s
    conduct into personal expression. See 
    id. (citation omitted).
    ¶74           At bottom, the Court recognized that FAIR could not identify
    any personal expression or speech intimately connected with permitting
    access to a room on a law school campus. See 
    id. at 63–65;
    see also 
    Hurley, 515 U.S. at 576
    (holding that protected speech exists when the speaker is
    “intimately connected with the communication advanced”). The Court
    concluded that “the schools are not speaking when they host interviews
    and recruiting receptions” and that “a law school’s decision to allow
    recruiters on campus is not inherently expressive.” 
    FAIR, 547 U.S. at 64
    ; see
    24
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    25
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    26
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    his original artwork constitutes speech protected under the First
    Amendment” (emphasis added)); see also 
    Riley, 487 U.S. at 795
    –96 (holding
    that both the contributions subsidizing free speech and the professional
    fundraiser’s solicitation efforts in raising those contributions must be
    examined “as a whole,” and, as a result, the test for “fully protected
    expression” must be applied to both); cf. Simon & Schuster, Inc. v. Members
    of the N.Y. State Crime Victims Bd., 
    502 U.S. 105
    , 108, 123 (1991) (holding that
    a statute regulating the income generated from books and other media by
    those accused or convicted of a crime constituted an impermissible
    regulation of speech).
    ¶80            The City also argues that because Plaintiffs’ refusal affects
    only same-sex couples, their refusal is essentially a proxy for discrimination
    based on sexual orientation. We disagree. The fact that Plaintiffs’ message-
    based refusal primarily impacts customers with certain sexual orientations
    does not deprive Plaintiffs of First Amendment protection. For example, in
    Hurley, the Council’s decision to exclude GLIB’s banner effectively
    excluded any other parade participants who may have wanted to express
    their pride in their sexual orientation by marching behind similar banners.
    But because the impact was based on message, not status, it was protected.
    See 
    Hurley, 515 U.S. at 572
    –76, 580–81; see also Boy Scouts of Am. v. Dale, 
    530 U.S. 640
    , 653–54 (2000) (discussing Hurley and stating “that the parade
    organizers did not wish to exclude the GLIB members because of their
    sexual orientations, but because they wanted to march behind a GLIB
    banner”); cf. Masterpiece 
    Cakeshop, 138 S. Ct. at 1723
    (stating that if a wedding
    cake baker “refused to design a special cake with words or images
    celebrating the marriage . . . that might be different from a refusal to sell
    any cake at all” and that “these details might make a difference”).
    ¶81             The City’s reliance on Christian Legal Society v. Martinez, 
    561 U.S. 661
    (2010), and Lawrence v. Texas, 
    539 U.S. 558
    (2003), is misplaced.
    Those cases stand for the proposition that a governmental regulation
    targeting a person’s sexual conduct is, in effect, a law that discriminates
    based on a person’s sexual orientation. See Christian Legal 
    Soc’y, 561 U.S. at 672
    , 675, 689 (relying on Lawrence and concluding that there was no
    difference between an organization’s exclusion of individuals who engage
    in “unrepentant homosexual conduct” and exclusion of persons based on
    their sexual orientation); 
    Lawrence, 539 U.S. at 583
    (O’Connor, J., concurring
    in the judgment) (reasoning that “there can hardly be more palpable
    discrimination against a class than making the conduct that defines the class
    criminal” (citation omitted)).
    27
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶82           Here, Plaintiffs’ objection is based on neither a customer’s
    sexual orientation nor the sexual conduct that defines certain customers as
    a class. Plaintiffs will make custom artwork for any customers, regardless
    of their sexual orientation, but will not, regardless of the customer, make
    custom wedding invitations celebrating a same-sex marriage ceremony.
    Thus, although Plaintiffs’ refusal may, like Hurley, primarily impact same-
    sex couples, their decision is protected because it is not based on a
    customer’s sexual orientation.
    ¶83           The City also claims that the invitations are the customer’s
    speech, not Plaintiffs’ speech. According to the City, because Plaintiffs
    include the information requested by the customer, they merely serve as a
    scribe, or conduit, for the customer’s speech.
    ¶84          This argument is not supported by the record. Duka and
    Koski are involved in every aspect of designing and creating the invitations,
    and they retain substantial (if not complete) artistic control over the
    messages that are expressed in the invitations. See supra ¶¶ 9–14. Clearly,
    Duka and Koski are more than a “scribe” for the customer.
    ¶85            But more importantly, the fact that the invitations may
    contain the speech of both Plaintiffs and their customers does not mean that
    Plaintiffs’ speech is unprotected. In Hurley, the Court rejected the
    government’s argument that the parade did not include the personal
    expression of the Council because it incorporated speech originally created
    by others. 
    See 515 U.S. at 569
    –70. The Court stated that “First Amendment
    protection [does not] require a speaker to generate, as an original matter,
    each item featured in the communication.” 
    Id. at 570;
    see also 
    Riley, 487 U.S. at 794
    n.8 (stating that even though “the fund-raiser, not the charity, [was]
    the object of the regulation[, f]ining the fund-raiser” for its solicitation
    efforts to subsidize “speech for the charity has an obvious and direct
    relation to [not only] the charity’s speech,” but also the fundraiser, who
    “has an independent First Amendment interest in the speech”).
    ¶86           Likewise, in Coleman, we recognized that “a tattoo reflects not
    only the work of the tattoo artist but also the self-expression of the person
    displaying the tattoo’s relatively permanent 
    image.” 230 Ariz. at 359
    ¶ 25.
    Thus, we concluded that a tattoo is the protected speech of both the
    customer and the artist, even when the artist uses a standard message or
    design to create the tattoo. 
    Id. at 358
    ¶ 23, 360 ¶ 30; see also Buehrle v. City of
    Key West, 
    813 F.3d 973
    , 977 (11th Cir. 2015) (holding that tattoos display the
    message of both the artists and the customer); 
    Anderson, 621 F.3d at 1062
    (holding that “[a]s with all collaborative creative processes, both the
    28
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    29
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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).
    30
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶95            Plaintiffs assert that the Ordinance, as applied by the City, is
    content-based because it compels them to create custom invitations
    expressing messages that celebrate same-sex marriage. As a result,
    Plaintiffs contend the Ordinance is subject to strict scrutiny. In contrast, the
    City argues the Ordinance purely regulates discriminatory conduct, not
    speech, and therefore is subject to the rational basis test.
    ¶96            First, “laws that by their terms distinguish favored speech
    from disfavored speech on the basis of the ideas or views expressed are
    content based.” Turner 
    Broad., 512 U.S. at 643
    ; see also Reed v. Town of Gilbert,
    
    135 S. Ct. 2218
    , 2227 (2015). A law may also be content-based “if its manifest
    purpose is to regulate speech because of the message it conveys.” Turner
    
    Broad., 512 U.S. at 645
    . Content-based laws must satisfy strict scrutiny.
    
    Reed, 135 S. Ct. at 2227
    .          Thus, such laws “are presumptively
    unconstitutional and may be justified only if the government proves that
    they are narrowly tailored to serve compelling state interests.” 
    Id. at 2226.
    ¶97            Second, content-neutral laws that regulate non-expressive
    conduct, and not speech, are subject to the rational basis test. See 
    Coleman, 230 Ariz. at 358
    ¶ 19 (stating that “if the conduct is not ‘sufficiently imbued
    with elements of communication,’ then the regulation need only be
    rationally related to a legitimate governmental interest” (quoting 
    Anderson, 621 F.3d at 1059
    )).
    ¶98           Third, content-neutral regulations “that impose an incidental
    burden on speech” are subject to intermediate scrutiny. Turner 
    Broad., 512 U.S. at 662
    . Under intermediate scrutiny, a law is justified if: (1) “it furthers
    an important or substantial governmental interest,” (2) “the governmental
    interest is unrelated to the suppression of free expression,” and (3) any
    restriction on speech is incidental and “no greater than is essential” to
    further the government interest. 
    Id. (quoting O’Brien,
    391 U.S. at 377).
    ¶99           Finally, a facially content-neutral law may, as applied to a
    particular plaintiff, operate as a content-based law. For example, in Holder
    v. Humanitarian Law Project, 
    561 U.S. 1
    , 26–28 (2010), a facially content-
    neutral statute that “generally function[ed] as a regulation of conduct” was,
    as applied to plaintiffs, a content-based statute because “the conduct
    triggering coverage under the statute consist[ed] of communicating a
    message.” See also Masterpiece 
    Cakeshop, 138 S. Ct. at 1741
    (Thomas, J.,
    concurring) (stating that “[a]lthough public-accommodations laws
    generally regulate conduct, particular applications of them can burden
    protected speech”); cf. 
    Dale, 530 U.S. at 644
    (holding that a public
    accommodations law that was applied to force the Boy Scouts, in violation
    31
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    of their organizational values, to admit a gay man, who was a gay and
    lesbian rights advocate, violated their freedom of association under the First
    Amendment).
    ¶100          When a facially content-neutral law is applied by the
    government to compel speech, it operates as a content-based law. Thus,
    laws that “[m]andat[e] speech that a speaker would not otherwise make
    necessarily alters the content of the speech” and are therefore considered
    “content-based regulation[s] of speech.” 
    Riley, 487 U.S. at 795
    ; see Telescope
    Media, 
    2019 WL 3979621
    at *6 (stating that “[l]aws that compel speech or
    regulate it based on its content are subject to strict scrutiny”).
    ¶101           Hurley is instructive on this issue. In Hurley, the Court
    addressed a public accommodations law that did “not, on its face, target
    speech or discriminate on the basis of its content,” but focused on
    prohibiting “the act of discriminating against individuals in the provision
    of publicly available goods, privileges, and 
    services.” 515 U.S. at 572
    .
    However, the Court observed that the public accommodations law had
    been applied “in a peculiar way.” 
    Id. Specifically, the
    law was not being
    applied to “address any dispute about the participation of openly gay,
    lesbian, or bisexual individuals” in the parade. 
    Id. Indeed, like
    Plaintiffs
    here, the Council “disclaim[ed] any intent to exclude homosexuals as such,
    and no individual member of GLIB claim[ed] to have been excluded from
    parading as a member of any group that the Council ha[d] approved to
    march.” 
    Id. Rather, because
    GLIB’s banner affected the expressive content
    of their parade, Hurley concluded that the “application of the statute
    produced an order essentially requiring [the Council] to alter the expressive
    content of their parade,” and therefore “had the effect of declaring the
    sponsors’ speech itself to be the public accommodation.” 
    Id. at 572–73.
    As
    a result, the Court held that the public accommodations law, as applied to
    the Council’s parade, was unconstitutional because it compelled the
    Council “to modify the content of their expression.” 
    Id. at 578;
    see also 
    Riley, 487 U.S. at 795
    (holding that law was content-based because it
    “[m]andat[ed] speech that a speaker would not otherwise make”); City of
    Cleveland v. Nation of Islam, 
    922 F. Supp. 56
    , 59 (N.D. Ohio 1995) (holding
    that city’s public accommodations law as applied to plaintiffs compelled
    speech in violation of the First Amendment); cf. 
    Klein, 410 P.3d at 1069
    (recognizing public accommodation law may be “subject to strict scrutiny”
    if it was applied “to require the creation of pure speech or art”).
    ¶102          Here, the Ordinance, like other public accommodations laws,
    prohibits businesses from denying access to equal goods and services to
    certain protected groups. Thus, by its terms, the Ordinance is a facially
    32
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    33
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    invitations, each of which expresses a celebratory message, as the means of
    eradicating society of biases.
    ¶107           In Hurley, the Supreme Court rejected any suggestion that a
    public accommodations law could justify compelling speech. The Court
    explained that although the government may prohibit “the act of
    discriminating against individuals in the provision of publicly available
    goods, privileges, and services,” it may not “declar[e] [another’s] speech
    itself to be [a] public accommodation” or grant “protected
    individuals . . . the right to participate in [another’s] 
    speech.” 515 U.S. at 572
    –73. The Court observed that it may be argued “that the ultimate point
    of forbidding acts of discrimination toward certain classes is to produce a
    society free of the corresponding biases,” and therefore “[r]equiring access
    to a speaker’s message would thus be not an end in itself, but a means to
    produce speakers free of the biases.” 
    Id. at 578–79.
    The Court concluded,
    however, that “if this indeed is the point of applying the [public
    accommodations] law to expressive conduct, it is a decidedly fatal
    objective, ” because “[w]hile the law is free to promote all sorts of conduct
    in place of harmful behavior, it is not free to interfere with speech for no
    better reason than promoting an approved message or discouraging a
    disfavored one, however enlightened either purpose may strike the
    government.” 
    Id. at 579;
    see Telescope Media, 
    2019 WL 3979621
    at *7 (stating
    that “[e]ven antidiscrimination laws, as critically important as they are,
    must yield to the Constitution. And as compelling as the interest in
    preventing discriminatory conduct may be, speech is treated differently
    under the First Amendment”).
    ¶108           Accordingly, like Hurley, the City has failed to demonstrate
    that the Ordinance, as applied to Plaintiffs’ creation of custom wedding
    invitations, furthers a compelling governmental interest.
    ¶109          The dissent claims, however, that Hurley is “inapposite”
    because the compelled speech violation there involved the application of a
    public accommodations law to a privately organized parade, not a for-
    profit public accommodation like Brush & Nib. But Hurley made no such
    distinction. To the contrary, the Court stated that the right to autonomy of
    speech and freedom from compelled speech is “enjoyed by business
    corporations generally,” including “professional publishers.” 
    Hurley, 515 U.S. at 573
    –74. Indeed, as noted above, supra ¶ 101, what the Court
    considered “peculiar” was not the application of the public
    accommodations law to a privately organized parade, but application of the
    law to compel 
    speech. 515 U.S. at 572
    –73. Consistent with Hurley, the
    Supreme Court has never limited the compelled speech doctrine to non-
    34
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    profit organizations and has, on many occasions, applied that doctrine to
    for-profit businesses. See Pac. Gas & Elec. 
    Co., 475 U.S. at 6
    –7, 16–17
    (applying the compelled speech doctrine to a for-profit, privately-owned
    utility); Miami Herald Publ’g 
    Co., 418 U.S. at 244
    , 256–58 (applying the
    compelled speech doctrine to a newspaper company); see also 
    Coleman, 230 Ariz. at 360
    ¶ 31 (“[T]he degree of First Amendment protection is not
    diminished merely because the [protected expression] is sold rather than
    given away.” (alterations in original) (quoting Plain Dealer 
    Publ’g, 486 U.S. at 756
    n.5)); Telescope Media, 
    2019 WL 3979621
    at *5–9 (applying the
    compelled speech doctrine to a for-profit, privately owned wedding video
    business operating as a public accommodation).
    ¶110           Additionally, because the purpose of the Ordinance is to
    regulate conduct, not speech, regulating Plaintiffs’ speech is not narrowly
    tailored to accomplish this goal. As the Court stated in Riley, “government
    regulation of speech must be measured in minimums, not maximums,” and
    that in seeking to promote a valid government interest, it should avoid
    adopting “a prophylactic rule of compelled speech” that is “unduly
    burdensome and not narrowly 
    tailored.” 487 U.S. at 790
    , 798; see also Pac.
    Gas & Elec. 
    Co., 475 U.S. at 19
    (holding that a regulation was not “a narrowly
    tailored means of serving a compelling state interest” because, although
    “[t]he State’s interest in fair and effective utility regulation may be
    compelling[,] . . . the State can serve that interest through means that would
    not violate appellant’s First Amendment rights”); NAACP v. Button, 
    371 U.S. 415
    , 433, 438 (1963) (“Because First Amendment freedoms need
    breathing space to survive, . . . [b]road prophylactic rules in the area of free
    expression are suspect. Precision of regulation must be the touchstone in
    an area so closely touching our most precious freedoms.” (citations
    omitted)).
    ¶111           We therefore conclude that because the Ordinance as applied
    to Plaintiffs’ creation of custom wedding invitations cannot survive strict
    scrutiny, the Ordinance runs afoul of the First Amendment, which
    “necessarily implies” a violation of Plaintiffs’ broader free speech right
    under article 2, section 6 of the Arizona Constitution. 
    Coleman, 230 Ariz. at 361
    ¶ 36 n.5; see also Mountain 
    States, 160 Ariz. at 358
    .
    ¶112          The City’s concern that our decision will undermine the anti-
    discrimination purpose of the Ordinance, or that it will encourage other
    businesses to use free speech as a pretext to discriminate against protected
    groups, is unwarranted. Our holding today is limited to Plaintiffs’ creation
    of one product: custom wedding invitations that are materially similar to
    the invitations contained in the record. Supra ¶ 3. These invitations, unlike
    35
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    most commercial products and services sold by public accommodations,
    are unique because they consist of protected pure speech.
    ¶113            Nothing in our holding today allows a business to deny access
    to goods or services to customers based on their sexual orientation or other
    protected status. See Telescope Media, 
    2019 WL 3979621
    at *10 (holding that,
    although the state public accommodations law must give way to the
    owners’ free speech rights to refuse to create videos celebrating same-sex
    marriage, this holding “leaves intact other applications of the [law] that do
    not regulate speech based on its content or otherwise compel an individual
    to speak.”). Additionally, the dissent’s claim that our holding conflicts with
    cases such as Heart of Atlanta Motel, Inc. v. United States, 
    379 U.S. 241
    (1964),
    and Newman v. Piggie Park Enterprises, Inc., 
    256 F. Supp. 941
    (D. S.C. 1966),
    aff’d in part and rev’d in part on other grounds, 
    377 F.2d 433
    (4th Cir. 1967), aff’d
    as modified on other grounds, 
    390 U.S. 400
    (1968) (per curiam), is incorrect.
    Those cases did not involve compelled speech, but rather business owners
    who refused to serve African-Americans based solely on their race, a
    practice Plaintiffs expressly condemn, and that our holding clearly neither
    permits nor condones. See Heart of 
    Atlanta, 379 U.S. at 244
    , 261–62
    (upholding constitutionality of Title II of the Civil Rights Act as applied to
    hotels and motels, against challenges under the commerce, due process,
    and takings clauses and the Thirteenth Amendment); 
    Newman, 256 F. Supp. at 944
    (holding that Title II of the Civil Rights Act prohibited an owner of a
    restaurant from refusing to serve African-Americans).
    E. Other Jurisdictions
    ¶114          Finally, the City claims that several decisions from other
    jurisdictions support its application of the Ordinance. These decisions,
    however, are either distinguishable or not persuasive.
    ¶115           For example, in Elane Photography, LLC v. Willock, 
    309 P.3d 53
    ,
    59–60 ¶ 7 (N.M. 2013), the owners of a commercial photography business
    refused, on religious grounds, to provide photography services for a same-
    sex wedding.        But there, the court determined that the public
    accommodations law was not being applied to speech, but solely to the
    owners’ conduct in operating their photography business. 
    Id. at 66
    ¶¶ 34–
    35, 68 ¶¶ 41–43. However, we have—as has the United States Supreme
    Court—expressly rejected this distinction between a business and the
    speech that it creates. 
    Coleman, 230 Ariz. at 360
    ¶ 31; supra ¶ 65.
    ¶116         Elane Photography also held that the compelled speech
    doctrine did not apply to the owners because they operated their business
    36
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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.
    37
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    38
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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.
    39
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    A. FERA Analysis
    ¶127          FERA establishes a two-step process. First, the party raising
    a free exercise claim must prove that: (1) their action or refusal to act is
    motivated by a religious belief, (2) the religious belief is sincerely held, and
    (3) the government’s regulation substantially burdens the free exercise of
    their religious beliefs. 
    Hardesty, 222 Ariz. at 366
    ¶ 10; see also A.R.S. § 41-
    1493(2); § 41-1493.01(B). If the claimant proves these elements, then the
    burden shifts to the government to show that the law (1) furthers a
    compelling governmental interest and (2) is the “least restrictive means of
    furthering that compelling governmental interest.” § 41-1493.01(C)(1)–(2);
    see also 
    Hardesty, 222 Ariz. at 366
    ¶ 10. Because the text and requirements
    of FERA and RFRA are nearly identical, we rely on cases interpreting RFRA
    as persuasive authority in construing the requirements of FERA. 
    Hardesty, 222 Ariz. at 367
    ¶ 13 n.7.
    1. Religious Belief
    ¶128           A free exercise claim under FERA must be based on a
    religious belief. A.R.S. § 41-1493(2) (defining the “[e]xercise of religion” as
    “the ability to act or refusal to act in a manner substantially motivated by a
    religious belief”); 
    Hardesty, 222 Ariz. at 366
    ¶ 10; cf. 
    Yoder, 406 U.S. at 215
    (“A way of life, however virtuous and admirable, may not be interposed as
    a barrier to reasonable state regulation . . . if it is based on purely secular
    considerations; to have the protection of the Religion Clauses, the claims
    must be rooted in religious belief.”). To satisfy this element, a claimant need
    not prove that a belief is a central tenet of her faith. § 41-1493(2) (stating
    that under FERA, a claimant is not required to show that one’s religious
    exercise “is compulsory or central to a larger system of religious belief”).
    ¶129          Here, it is undisputed that Plaintiffs’ “refusal to act,” that is,
    declining to express messages in their custom invitations celebrating same-
    sex weddings, is substantially motivated by Duka and Koski’s religious
    belief that marriage is only between a man and a woman.
    2. Sincerity of Belief
    ¶130          The City also concedes that Duka and Koski’s religious beliefs
    about same-sex marriage are sincere. Duka and Koski base their beliefs on
    the Bible and the shared traditions and practices of Christians. Cf. 
    Yoder, 406 U.S. at 216
    (“[T]he traditional way of life of the Amish is not merely a
    matter of personal preference, but one of deep religious conviction, shared
    by an organized group, and intimately related to daily living. That the Old
    Order Amish daily life and religious practice stem from their faith is shown
    40
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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
    41
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    criminal an individual’s religiously motivated conduct burdens that
    individual’s free exercise of religion in the severest manner possible, for it
    ‘results in the choice to the individual of either abandoning his religious
    principle or facing criminal prosecution.’” (quoting Braunfeld v. Brown, 
    366 U.S. 599
    , 605 (1961))).
    ¶133          Similarly, in Hobby Lobby, the Supreme Court addressed
    whether a Health and Human Services (“HHS”) regulation substantially
    burdened the free exercise of religion under RFRA for the owners of three
    for-profit 
    corporations. 573 U.S. at 688
    –91. The owners, who opposed
    abortion on religious grounds, objected to the regulation because it required
    them to provide employee health care coverage for certain methods of birth
    control. 
    Id. at 691.
    Because the owners viewed these birth control
    procedures as a form of abortion, they refused to comply with the
    regulation. 
    Id. at 691,
    701, 703. However, by violating the regulation, the
    owners faced severe financial penalties and assessments which, in some
    instances, totaled hundreds of millions of dollars. 
    Id. at 72
    0.
    ¶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 72
    6. 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).
    42
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    Thus, for example, if Plaintiffs post their proposed Statement on their
    website for a month, Duka and Koski could face up to fifteen years in jail.
    See 
    id. Even if
    placed on probation, Plaintiffs face a possible fine of $2,500;
    for a continuing violation, the fine could be tens of thousands of dollars. 
    Id. §§ 1-5,
    18-4(B). Alternatively, the City has the authority under the
    Ordinance’s nuisance provision to simply shut down Duka and Koski’s
    business altogether. See 
    id. § 1-5.
    ¶136          Despite the clear coercive effect of the Ordinance, the City
    claims that requiring Duka and Koski to create custom invitations for same-
    sex weddings does not place any burden on their exercise of their religious
    beliefs. Specifically, the City argues that Duka and Koski’s “religion says
    nothing about making wedding invitations,” and the act of creating a
    wedding invitation is too attenuated from their beliefs about marriage to
    place any burden, much less a substantial burden, on their free exercise of
    religion.
    ¶137          This argument is neither novel nor new. The United States
    Supreme Court rejected precisely the same argument in Hobby Lobby.
    There, in addressing the owners’ RFRA claim, the Court stated that the
    government’s main argument was “that the connection between what the
    [owners] must do (provide health-insurance coverage for four methods of
    contraception that may operate after the fertilization of an egg) and the end
    that they find to be morally wrong (destruction of an embryo) is simply too
    
    attenuated.” 573 U.S. at 723
    . The Court stated, however, that “[t]his
    argument dodges the question” of whether the regulation imposed “a
    substantial burden on the ability of the [owners] to conduct business in
    accordance with their religious beliefs.” 
    Id. at 72
    4. 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 72
    4–25 (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
    43
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    because they “sincerely believe that providing the insurance coverage
    demanded by the HHS regulations lies on the forbidden side of the line,
    and it is not for us to say that their religious beliefs are mistaken or
    insubstantial.” 
    Id. at 72
    5; cf. Masterpiece 
    Cakeshop, 138 S. Ct. at 1731
    (stating
    that the government is “obliged under the Free Exercise Clause to proceed
    in a manner neutral toward and tolerant of” a person’s religious beliefs, and
    “[i]t hardly requires restating that government has no role in deciding or
    even suggesting whether the religious ground for [a person’s] conscience-
    based objection is legitimate or illegitimate”); cf. 
    Dale, 530 U.S. at 651
    , 653
    (stating that “it is not the role of the courts to reject a group’s expressed
    values because they disagree with those values or find them internally
    inconsistent,” and therefore, “[a]s we give deference to an association’s
    assertions regarding the nature of its expression, we must also give
    deference to an association’s view of what would impair its expression”).
    ¶139         Thus, based on Hobby Lobby, we reject the City’s invitation to
    assess the reasonableness of Duka and Koski’s sincerely held religious
    beliefs. This is not a proper consideration in determining whether the
    Ordinance places a substantial burden on their right to free exercise of
    religion.
    ¶140          By adhering to Hobby Lobby, we do not, as the dissent claims,
    eliminate the substantial burden element from the FERA analysis. Rather,
    we follow the well-established rule that courts may not, under the guise of
    conducting a substantial burden analysis, examine the reasonableness of a
    person’s 
    belief. 573 U.S. at 724
    . This deference does not, of course, dispose
    of the court’s legal duty under FERA to determine whether a law places a
    substantial burden on a person’s religious belief. As we note above, that
    element is satisfied here because the Ordinance coerces Plaintiffs into
    violating their belief. Supra ¶¶ 131–35.
    ¶141          However, the dissent seeks to evade the coercive effect of the
    Ordinance by attempting to refocus the substantial burden analysis on
    whether Plaintiffs’ belief is substantial. This argument, however, is nothing
    more than a repackaging of the City’s reasonableness argument. For
    example, the dissent contends that Plaintiffs’ adherence to their belief is
    flawed and inconsistent. Infra ¶¶ 208-09. However, by making this
    argument the dissent crosses the line drawn by Hobby Lobby, which
    prohibits a court from examining the alleged flaws or inconsistencies of a
    person’s beliefs while engaging in a substantial burden 
    analysis. 573 U.S. at 724
    –25.
    44
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶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.
    45
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶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
    46
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    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).
    47
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    ¶154            Here, under the dissent’s least restrictive means test, the
    City’s nondiscrimination purpose simply overrides all conflicting
    individual rights and liberties. That, of course, is not the law. As Hobby
    Lobby noted, “[e]ven a compelling interest may be outweighed in some
    circumstances by another even weightier consideration.” 
    Id. at 72
    7.
    Likewise, Masterpiece Cakeshop did not hold that public accommodations
    laws were immune from free exercise exemptions; rather, it clearly
    contemplated that some exemptions, if narrowly confined, were
    permissible. Masterpiece 
    Cakeshop, 138 S. Ct. at 1723
    –24, 1727–29. And while
    we must, in determining whether Plaintiffs’ invitations are entitled to an
    exemption from the Ordinance, consider the impact on the City’s
    nondiscrimination purpose, we must also consider the effect of compelling
    Plaintiffs to create these invitations. See 
    Janus, 138 S. Ct. at 2464
    (stating that
    “[w]hen speech is compelled . . . additional damage is done” because it
    forces “free and independent individuals to endorse ideas they find
    objectionable[, which] is always demeaning,” and coerces individuals “into
    betraying their convictions.”).
    ¶155           Additionally, if it is true, as the City and the dissent claim,
    that uniform application of the Ordinance is necessary to achieve its
    nondiscrimination goal, then no business or organization should be exempt
    from its provisions. However, pursuant to § 18-4(B)(4)(a), the Ordinance’s
    prohibitions regarding discrimination based on sexual orientation “shall
    not apply to bona fide religious organizations” or “be construed to prohibit
    or prevent” them “from taking any action which is calculated by the
    organization to promote the religious principles for which it is established
    or maintained.” In short, the Ordinance allows some organizations, based
    on their religious beliefs, to discriminate against individuals based on their
    sexual orientation, the very thing the Ordinance seeks to eliminate. See
    
    Reed, 135 S. Ct. at 2232
    (stating that a law does not further a compelling state
    interest when it permits exemptions that “leave[] appreciable damage to
    that supposedly vital interest unprohibited” (citation omitted)); cf. O 
    Centro, 546 U.S. at 423
    , 432–37 (stating that the existence of a religious exemption
    for the sacramental use of peyote, a prohibited drug, belied the
    government’s contention that exempting a religious sect’s sacramental use
    of hoasca would undermine the effectiveness of federal drugs laws).
    ¶156          Here, the City has neither shown nor argued that allowing an
    exemption for religious organizations has undercut the effectiveness of the
    Ordinance. Of course, the City could “demonstrate a compelling interest in
    uniform application” of the Ordinance “by offering evidence that granting
    the requested religious accommodations would seriously compromise its
    ability to administer the program.” O 
    Centro, 546 U.S. at 435
    . But the City
    48
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    has made no effort to do so here. Rather, it simply asserts, with no evidence,
    that granting an exemption for Plaintiffs’ custom invitations would
    encourage other businesses to use FERA as a tool to discriminate against
    customers based on their sexual orientation, race and gender. 2
    ¶157          The City’s speculation about what might happen is not
    evidence. Indeed, such “slippery slope” arguments not grounded in fact
    were rejected in Hobby Lobby. There, the government similarly argued that
    granting a religious exemption to the business owners “will lead to a flood
    of religious objections regarding a wide variety of medical procedures and
    drugs, such as vaccinations and blood transfusions.” Hobby 
    Lobby, 573 U.S. at 732
    . Rejecting that argument, the Court stated that the government
    “made no effort to substantiate this prediction,” and there was no “evidence
    that any significant number of employers sought exemption, on religious
    grounds, from any of [the] coverage requirements other than the
    contraceptive mandate.” 
    Id. at 732–33.
    ¶158           Like Hobby Lobby, we find the same lack of evidence here. It
    is not our role to speculate about whether exempting Duka and Koski’s
    creation of custom wedding invitations would cause other businesses to
    seek a religious exemption from the Ordinance. We have no evidence in
    the record to make a conclusion one way or another. Absent such evidence,
    all we can do is enforce FERA as written, under the standards it provides.
    Cf. 
    id. at 735–36
    (“The dissent worries about forcing the federal courts to
    apply RFRA to a host of claims made by litigants seeking a religious
    exemption from generally applicable laws, and the dissent expresses a
    desire to keep the courts out of this business . . . . The wisdom of Congress’s
    judgment on this matter is not our concern. Our responsibility is to enforce
    RFRA as written, and under the standard that RFRA prescribes . . . .”).
    ¶159           Here, like the religious organizations exempt under the
    Ordinance, Brush & Nib was established, and is operated, to promote
    certain religious principles. Although Plaintiffs operate Brush & Nib for
    profit, this does not mean that they cannot, like a religious organization or
    church, also further their “religious objectives as well.” 
    Id. at 712.
    And the
    fact Plaintiffs operate for profit has no bearing on their protection under
    2      We note that the Ordinance’s exemption could not be used even by
    a bona fide religious organization, let alone a business owner, to refuse
    service based on “race, color, religion, sex, national origin . . . or disability”;
    the exemption, by its terms, only applies to marital status, sexual
    orientation, and gender identity or expression. See PCC § 18-4(B)(2), 18-
    4(B)(4).
    49
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    FERA. FERA, by its terms, makes no such distinction, nor does it limit its
    protections to churches and other nonprofit religious organizations. 
    Id. at 691–92,
    705–06, 718–19 (refusing to exclude closely-held corporations from
    RFRA protections because of their for-profit nature). The purpose of the
    exemption under the Ordinance is to allow religious organizations “to
    promote the religious principles for which it is established or maintained.”
    § 18-4(B)(4)(a).
    ¶160          Although the dissent claims our decision sanctions status-
    based discrimination, that mischaracterizes our analysis and our holding.
    Our decision today is limited to one, very unique product (Plaintiffs’
    custom wedding invitations), and the protection afforded this product is
    based solely on the celebratory messages Plaintiffs convey (or refuse to
    convey), not the race, gender or sexual orientation of the customer. Supra
    ¶¶ 14, 16, 76. Indeed, Plaintiffs have never asserted that their faith
    precludes them from serving same-sex couples, or that it requires them to
    refuse service to a customer based on their sexual orientation. Rather, as
    noted above, Plaintiffs consistently testified that they are willing to serve
    all customers, regardless of their status. But what they refuse to do is
    violate their religious convictions by creating a message for anyone that
    celebrates same-sex marriage.
    ¶161          Finally, FERA itself creates several barriers to any business
    owners seeking to use their religious beliefs to engage in status-based
    discrimination. For example, such an owner would have to prove that his
    religious belief is sincere, and not simply a pretext for engaging in illegal
    discrimination based on status. Our courts are well-equipped to address
    questionable or frivolous assertions of religious beliefs where the evidence
    shows that such a belief is being used for purely pretextual purposes. Cf.
    Hobby 
    Lobby, 573 U.S. at 718
    (stating that “the scope of RLUIPA shows that
    Congress was confident of the ability of the federal courts to weed out
    insincere claims”); Cutter v. Wilkinson, 
    544 U.S. 709
    , 725 n.13 (2005) (stating
    that RLUIPA “does not preclude inquiry into the sincerity of a prisoner’s
    professed religiosity”).
    ¶162          More importantly, even if a business owner could somehow
    prove that his status-based religious belief is sincere, and that the regulation
    imposed a substantial burden on that belief, FERA allows the City to show
    that any burden on such a belief is justified by the anti-discrimination
    purpose of the Ordinance. And, because an exemption based on status-
    based discrimination directly undermines the purpose of the Ordinance,
    uniform prohibition of such business practices would be the least restrictive
    means to prevent discrimination. See 
    Hardesty, 222 Ariz. at 364
    ¶¶ 1, 3, 368–
    50
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    69 ¶¶ 19–23 (denying defendant’s request for an exemption from a statute
    making use of marijuana illegal, because based on defendant’s asserted
    religious belief in unlimited use of marijuana, including using marijuana
    while driving, granting an exemption would undermine the public safety
    purpose of the statute); cf. Masterpiece 
    Cakeshop, 138 S. Ct. at 1727
    –28 (stating
    that under the Colorado public accommodations law “religious and
    philosophical objections to gay marriage are protected views and in some
    instances protected forms of expression,” but that “it is a general rule that
    such objections do not allow business owners and other actors . . . to deny
    protected persons equal access to goods and services”).
    ¶163            We therefore conclude that the Ordinance, as applied to
    Plaintiffs’ creation of their custom wedding invitations, places a substantial
    burden on their right to free exercise of religion. Additionally, the City has
    failed to show that applying the Ordinance to Plaintiffs’ invitations is the
    least restrictive means to achieve its asserted compelling interest. Thus, the
    trial court erred in denying Plaintiffs’ motion for summary judgment on
    their FERA claim and instead granting summary judgment in favor of the
    City on that claim.
    Conclusion
    ¶164          Freedom of speech and religion requires tolerance of different
    beliefs and points of view. In a diverse, pluralistic society such as ours,
    tolerance of another’s beliefs and point of view is indispensable to the
    survival and growth of our democracy. See Palko v. Connecticut, 
    302 U.S. 319
    , 326–27 (1937) (stating that freedom of thought and expression “is the
    matrix, the indispensable condition, of nearly every other form of
    freedom”), overruled on other grounds by Benton v. Maryland, 
    395 U.S. 784
    (1969). For this reason, we have always recoiled at those governments and
    societies that repress or compel ideas or religious beliefs. See Thomas v.
    Collins, 
    323 U.S. 516
    , 545 (1945) (Jackson, J., concurring) (“The very purpose
    of the First Amendment is to foreclose public authority from assuming a
    guardianship of the public mind through regulating the press, speech, and
    religion.”).
    ¶165          It is the duty of the judiciary to enforce the text of our
    constitution and statutes and the fundamental rights protected within
    them. Enforcing and protecting these rights preserves “individual freedom
    of mind in preference to officially disciplined uniformity for which history
    indicates a disappointing and disastrous end.” 
    Barnette, 319 U.S. at 637
    .
    And while our dissenting colleagues may view a result contrary to our
    holding today as more progressive, “it is not forward thinking to force
    51
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    Opinion of the Court
    individuals to ‘be an instrument for fostering public adherence to an
    ideological point of view [they] fin[d] unacceptable.’” 
    NIFLA, 138 S. Ct. at 2379
    (Kennedy, J., concurring) (alteration in original) (quoting 
    Wooley, 430 U.S. at 715
    ). After all, “[w]hile the law is free to promote all sorts of conduct
    in place of harmful behavior, it is not free to interfere with speech for no
    better reason than promoting an approved message or discouraging a
    disfavored one, however enlightened either purpose may strike the
    government.” 
    Hurley, 515 U.S. at 579
    .
    ¶166           To conclude, we hold that the Ordinance, as applied to
    Plaintiffs’ custom wedding invitations, and the creation of those invitations,
    unconstitutionally compels speech in violation of the Arizona
    Constitution’s free speech clause. See Appendix 1. We further conclude
    that the Ordinance, as applied to Plaintiffs’ creation of custom wedding
    invitations, substantially burdens Plaintiffs’ free exercise of religion, and
    that the City has not demonstrated that its application of the Ordinance to
    Plaintiffs in this way is the least restrictive means of achieving its asserted
    interest in eradicating discrimination. 
    Id. Thus, the
    application of the
    Ordinance in this case violates Plaintiffs’ free exercise rights under FERA,
    § 41-1493.01. Finally, because Plaintiffs’ intended refusal to make custom
    wedding invitations celebrating a same-sex wedding is legal activity under
    Arizona’s free speech clause and FERA, Plaintiffs are entitled to post a
    statement, consistent with our holding today, indicating this choice.
    ¶167           We therefore vacate the court of appeals’ opinion except for
    paragraphs 33 through 45 and 51 through 53, reverse the trial court’s rulings
    on summary judgment, and direct entry of summary judgment in favor of
    Plaintiffs with respect to the creation of custom wedding invitations that
    are materially similar to the invitations in the record. See Appendix 1.
    further, because Plaintiffs have prevailed against the City on their FERA
    claim, upon compliance with ARCAP 21, they are entitled to a mandatory
    award of attorney fees under A.R.S. § 41-1493.01(D) only as to those fees
    incurred in this Court. 
    Id. (“A party
    who prevails in any action to enforce
    this article against a government shall recover attorney fees and costs.”).
    We deny Plaintiffs’ remaining fee requests.
    52
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BOLICK, Concurring
    BOLICK, J., concurring.
    ¶168         I join the Court’s analysis and write separately to further
    examine the state constitutional provision under which this challenge was
    brought.
    ¶169           Article 2, section 6 of the Arizona Constitution provides in
    full: “Every person may freely speak, write, and publish on all subjects,
    being responsible for the abuse of that right.” That language is majestic in
    its sweep, and we have consistently found that it provides greater
    protection for speech than the First Amendment. See, e.g., Coleman v. City of
    Mesa, 
    230 Ariz. 352
    , 361 ¶ 36 n.5 (2012) (“Article 2, Section 6 of Arizona’s
    Constitution . . . is in some respects more protective of free speech rights
    than the First Amendment.”); State v. Stummer, 
    219 Ariz. 141
    , 143 ¶ 17 (2008)
    (“We have also stated that Article 2, Section 6 has ‘greater scope than the
    first amendment.’” (citation omitted)); Mountain States Tel. & Tel. Co. v. Ariz.
    Corp. Comm’n, 
    160 Ariz. 350
    , 356 (1989) (“[W]e apply here the broader
    freedom of speech clause of the Arizona Constitution.”). Even when the
    parties do not fully develop their argument on the Arizona constitutional
    provision, where it constitutes a question on which we granted review, we
    are duty-bound to construe it. Ariz. Const. art. 2, § 32 (“The provisions of
    this Constitution are mandatory, unless by express words they are declared
    to be otherwise.”); 
    Stummer, 219 Ariz. at 140
    ¶ 1, 142 ¶ 14; Mountain 
    States, 160 Ariz. at 354
    (“Because the parties explicitly invoked Arizona’s
    constitution, we must implement whatever protection it extends.”).
    ¶170           As ours is the forty-eighth state, the framers of our
    constitution had abundant lessons from which to draw in framing its
    provisions. Former Chief Justice Rebecca Berch explained that our
    constitution’s framers “had the opportunity to ponder more than 100 years
    of United States history before penning their own constitution, allowing
    them to adopt or adjust provisions employed by the federal government or
    other states to meet Arizona’s needs.” Rebecca White Berch et al.,
    Celebrating the Centennial: A Century of Arizona Supreme Court Constitutional
    Interpretation, 44 Ariz. St. L.J. 461, 468 (2012). As our constitution’s framers
    chose to secure free speech with language different and more protective
    than the First Amendment, our constitutional oath requires us to invest
    those words with their fully intended meaning.
    ¶171          In applying state constitutional provisions, federal
    constitutional jurisprudence addressing the issue at hand is always relevant
    because the United States Constitution sets the base-line for the protection
    53
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BOLICK, Concurring
    of individual liberties. Petersen v. City of Mesa, 
    207 Ariz. 35
    , 37 ¶ 8 n.3 (2004);
    State v. Sieyes, 
    225 P.3d 995
    , 1003 ¶ 28 (Wash. 2010); see City of Mesquite v.
    Aladdin’s Castle, Inc., 
    455 U.S. 283
    , 293 (1982); PruneYard Shopping Ctr. v.
    Robins, 
    447 U.S. 74
    , 81 (1980). But “a state court is entirely free to read its
    own State’s constitution more broadly than th[e United States Supreme]
    Court reads the Federal Constitution.” City of 
    Mesquite, 455 U.S. at 293
    . The
    U.S. Constitution “sets a floor for the protection of individual rights. . . .
    Other federal, state, and local government entities generally possess
    authority to safeguard individual rights above and beyond the rights
    secured by the U.S. Constitution.” American Legion v. American Humanist
    Ass’n, 
    139 S. Ct. 2067
    , 2094 (2019) (Kavanaugh, J., concurring) (citing J.
    Sutton, 51 Imperfect Solutions (2018)); Brennan, “State Constitutions and the
    Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)).
    ¶172           Where the language of a state constitutional provision is
    identical or similar to its federal counterpart, we should examine how the
    provision was interpreted by the federal courts at the time it was adopted
    by the State of Arizona to determine its meaning. See Turken v. Gordon, 
    223 Ariz. 342
    , 346 ¶ 10 (2010); Moore v. Chilson, 
    26 Ariz. 244
    , 255 (1924) (applying
    prior-construction canon); Antonin Scalia & Bryan A. Garner, Reading Law:
    The Interpretation of Legal Texts 322–23 (2012) (discussing prior-construction
    canon). But where the language is different, we must presume it was
    intended to have a different meaning from its federal counterpart and
    determine how the different language affects the constitutional provision’s
    meaning. Cf. State v. Marcus, 
    104 Ariz. 231
    , 233–34 (1969) (noting “it is a
    general principle that the most recent Act controls over the earlier Act”
    when laws are inconsistent); Scalia & 
    Garner, supra, at 256
    (“[A] change in
    the language of a prior statute presumably connotes a change in
    meaning.”).
    ¶173          In so doing, if the meaning of the language is clear, we should
    enforce it without resorting to secondary interpretative methods. Jett v. City
    of Tucson, 
    180 Ariz. 115
    , 119 (1994). Where the meaning is unclear, we
    should seek to determine the intent of the framers as best we can from the
    records of our constitution and other reliable historical sources. Brewer v.
    Burns, 
    222 Ariz. 234
    , 244 (2009); Fain Land & Cattle Co. v. Hassell, 
    163 Ariz. 587
    , 595 (1990); Boswell v. Phx. Newspapers, Inc., 
    152 Ariz. 9
    , 12 (1986);
    McElhaney Cattle Co. v. Smith, 
    132 Ariz. 286
    , 290 (1982). Finally, where our
    provision is similar to provisions in other state constitutions, we may look
    to court decisions and other historical records from those other states prior
    to our constitution’s ratification to help determine the framers’ intent in
    adopting them. See, e.g., 
    Turken, 223 Ariz. at 345
    –46 ¶¶ 10–11; Mountain
    54
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BOLICK, Concurring
    
    States, 160 Ariz. at 355
    . In construing the provisions of our Declaration of
    Rights, we always must be mindful of the admonition that government is
    “established to protect and maintain individual rights.” Ariz. Const. art. 2,
    § 2.
    ¶174           The words of article 2, section 6 and the First Amendment are
    very different. The First Amendment provides in relevant part that
    “Congress shall make no law . . . abridging the freedom of speech . . . .” It
    is phrased as a constraint on government power and is applied through the
    Fourteenth Amendment to the states. Gitlow v. New York, 
    268 U.S. 652
    , 666
    (1925) (incorporating Free Speech Clause of First Amendment); 
    Stummer, 219 Ariz. at 142
    ¶ 14 (noting the First Amendment is only a constraint on
    government). Our provision, by contrast, is a categorical guarantee of the
    individual right to freely speak, write, and publish, subject only to
    constraint for the abuse of that right. See 
    Stummer, 219 Ariz. at 142
    ¶ 14; see
    also 
    id. ¶ 15
    (“The encompassing text of Article 2, Section 6 indicates the
    Arizona framers’ intent to rigorously protect freedom of speech.”). In fact,
    as this Court has stated, “[t]he right of every person to freely speak, write[,]
    and publish may not be limited.” 
    Id. ¶ 15
    (citation omitted).
    ¶175          Although this Court has consistently held that article 2,
    section 6 provides greater speech protection than the First Amendment, it
    has never fully explored the contours of the right. This case involves a
    straightforward application of the plain language of article 2, section 6.
    Unlike cases in other jurisdictions involving such activities as photography
    or custom cake design, the entirety of Plaintiffs’ business, to the extent it is
    at issue here, comprises custom writing. As such, it is at the core of our
    constitutional protection.
    ¶176          The ordinance, as applied to Plaintiffs, requires them under
    threat of severe criminal penalties or loss of their livelihood to write words
    for purposes with which they profoundly disagree. This application of the
    ordinance directly implicates the speech protections of the Arizona
    Constitution. See 
    Coleman, 230 Ariz. at 359
    –61 ¶¶ 24–26, 30, 36 & n.5
    (holding tattoos, even when comprised of only “standard designs or
    patterns,” and the creative process of tattooing are subject to protection
    under the Arizona Constitution’s free speech guarantee). When they have
    no choice to refuse to write a message with which they disagree, Plaintiffs
    are not “freely” writing. See Freely, Webster’s Third New International
    Dictionary (3d ed. 2002) (defining “freely” as “of one’s own accord”).
    Indeed, in concluding that a law that compelled speech violated the
    California Constitution’s similarly-worded free speech guarantee, the
    55
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BOLICK, Concurring
    California Supreme Court declared, “[o]ne does not speak freely when one
    is restrained from speaking. But neither does one speak freely when one is
    compelled to speak.” Gerawan Farming, Inc. v. Lyons, 
    12 P.3d 720
    , 750 (Cal.
    2000). The City has not suggested any way, such as libel, in which Plaintiffs
    have abused that right, see, e.g., 
    Stummer, 219 Ariz. at 142
    –43 ¶ 16.
    ¶177          Regardless of the circumstances under which compelled
    speech may be tolerated under United States Supreme Court precedent, see,
    e.g., Williams-Yulee v. Fla. Bar, 
    135 S. Ct. 1656
    , 1662 (2015), our state
    constitution categorically protects an individual’s freedom to write free
    from compulsion, being responsible only for the abuse of that right. See
    
    Stummer, 219 Ariz. at 142
    ¶ 15 (“[T]he words of Arizona’s free speech
    provision ‘are too plain for equivocation.’” (citation omitted)). This case
    does not require us to determine the complete scope of that right, such as
    the extent to which it protects other speech-related activities. Nor does our
    decision extend to anti-discrimination laws that do not by their application
    require individuals to speak, write, or publish.
    ¶178           The dissenters engage in unfortunate hyperbole when they
    invoke shameful historical examples of discrimination. Infra ¶¶ 217–18
    (Bales, J. (Ret.), dissenting). Plaintiffs do not seek to employ the coercive
    apparatus of government to impose disabilities on others. They do not
    discriminate against patrons based on their sexual orientation (indeed, it
    remains unlawful for them to do so), but instead object to conveying certain
    messages regardless of who the patron is. Plaintiffs seek merely to
    vindicate their right not to engage in speech that offends their deeply held
    religious beliefs, a right not only protected by the Arizona Constitution and
    the Free Exercise of Religion Act, but also one of our nation’s most
    cherished civil liberties—one that, as Justice Robert H. Jackson declared, is
    “beyond the reach of majorities and officials.” W. Va. State Bd. of Educ. v.
    Barnette, 
    319 U.S. 624
    , 629, 638, 642 (1943) (striking down law that required
    Jehovah’s Witnesses to salute the American flag). As the Court’s opinion
    abundantly illustrates, that right does not evaporate upon enactment of a
    public accommodations law, no matter how beneficently inspired.
    ¶179          There is a reciprocity and universality to these rights of
    speech and conscience that give us all a direct stake in protecting them
    regardless of the circumstances of a particular case. For instance, Phoenix
    could lawfully prohibit a gay calligrapher from discriminating against
    Christian patrons whatever their beliefs but could not force the calligrapher
    to create a program for a church that preached against same-sex marriage.
    Likewise, if Michelangelo were alive, the City could require that he sell his
    56
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BOLICK, Concurring
    sculptures free from discrimination but could not compel him to paint a
    chapel ceiling in a way he deemed blasphemous. That distinction is the fair
    accommodation required in a pluralistic society bounded by constitutional
    protections of individual rights.
    57
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    BALES, J. (Ret.), joined by TIMMER, V.C.J., and STARING, J., dissenting.
    ¶180         Can a business selling custom wedding invitations and other
    wedding products discriminate against same-sex couples because its
    owners, based on their sincerely held religious beliefs, disapprove of same-
    sex marriage, itself a constitutionally protected right? We thus are faced
    with a tension between our fundamental values of liberty and equality,
    because any legal prohibition on discrimination—that is, any guarantee of
    equal treatment—necessarily constrains the choices of those who prefer to
    treat some people differently.
    ¶181          Because the interest in preventing discrimination is
    compelling, equality prevails when we are dealing with public
    accommodations such as businesses serving the public. Vendors can freely
    choose which products or services they offer but they cannot refuse to sell
    them to groups of customers whom they disfavor. A baker, for example,
    might choose to sell only special-order Easter cakes decorated with the
    symbol of a cross, but having made that choice, the baker cannot refuse to
    sell those cakes to non-Christians. Similarly, a professional photographer
    may or may not choose to take children’s photos, but a photographer who
    chooses to do so cannot, based on his or her religious beliefs, refuse to
    photograph mixed-race children.
    ¶182         Brush & Nib and its owners argue that creating custom
    wedding products, which may include painting or calligraphy, implicates
    their freedom of expression and their choice to refuse to sell such products
    to same-sex couples is protected by the Arizona Constitution’s free speech
    clause and FERA. The majority accepts these arguments at least for certain
    “custom” wedding invitations, supra ¶¶ 3, 38, reasoning that barring Brush
    & Nib from discriminating against same-sex customers would compel its
    owners to engage in “pure speech” conveying a message of approval of
    same-sex marriage and impermissibly burden their exercise of religion.
    Supra ¶ 2.
    ¶183         Our constitutions and laws do not entitle a business to
    discriminate among customers based on its owners’ disapproval of certain
    groups, even if that disapproval is based on sincerely held religious beliefs.
    In holding otherwise, the majority implausibly characterizes a
    commercially prepared wedding invitation as “pure speech” on the part of
    the business selling the product and discounts the compelling public
    interest in preventing discrimination against disfavored customers by
    58
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    businesses and other public accommodations. Contrary to the majority,
    supra ¶¶ 7–8, requiring businesses to treat customers equally is in no way
    comparable to compelling public-school children to salute the flag, the issue
    in W. Va. Bd. of Educ. v. Barnette, 
    319 U.S. 624
    (1943). With respect for my
    colleagues, I dissent.
    A.
    ¶184           Our analysis should begin by recognizing how this case
    implicates the compelling interest in preventing discrimination in public
    accommodations. “[A]cts of invidious discrimination in the distribution of
    publicly available goods, services, and other advantages cause unique evils
    that government has a compelling interest to prevent . . . .” Roberts v. U.S.
    Jaycees, 
    468 U.S. 609
    , 628 (1984); see also Bd. of Dirs. of Rotary Int’l v. Rotary
    Club of Duarte, 
    481 U.S. 537
    , 549 (1987); Bob Jones Univ. v. United States, 
    461 U.S. 574
    , 604 (1983).
    ¶185           As relevant here, the Phoenix Ordinance (“Ordinance”)
    provides that a public accommodation may not refuse service “because of .
    . . sexual orientation.” Phx., Ariz., City Code (“PCC”) § 18-4(B)(2). Brush
    & Nib offers goods and services to the general public and, as it concedes, is
    a public accommodation. Thus, the Ordinance requires Brush & Nib to
    “perform the same services for a same-sex couple as it would for an
    opposite-sex couple.” Elane Photography, LLC v. Willock, 
    309 P.3d 53
    , 66 ¶ 35
    (N.M. 2013).
    ¶186          The Ordinance is content neutral and does not purport to
    regulate speech, but rather conduct. And the United States Supreme Court
    has stated that public accommodations laws “are well within the State’s
    usual power to enact when a legislature has reason to believe that a given
    group is the target of discrimination, and they do not, as a general matter,
    violate the First or Fourteenth Amendments.” Hurley v. Irish-Am. Gay,
    Lesbian & Bisexual Grp. of Bos., Inc., 
    515 U.S. 557
    , 571–72 (1995).
    ¶187          Brush & Nib sells premade and made-to-order wedding
    products, including save-the-date cards, invitations, programs, vows,
    marriage certificates, place cards, escort cards, menus, and maps. The
    wedding invitations contained in the record identify the names of the
    couple to be wed, provide logistical details, and usually—but not always—
    expressly invite the recipient to join in the celebration of the couple’s
    wedding. See Appendix 1. Some invitations do not refer to “celebration”
    but instead ask guests to “share in the joy of the marriage” or merely
    59
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    “[r]equest the honor of [the guest’s] presence.” 
    Id. The invitations
    also
    include various colors as a background or floral designs around the border.
    Illustrative copies of two such invitations and Brush & Nib’s other made-
    to-order products are attached as Appendix 2; Appendix 1 includes copies
    of other invitations in the record referenced by the majority.
    ¶188           Brush & Nib and its owners seek to refuse to provide services
    based on the same-sex status of the marrying couple rather than the content
    of the company’s made-to-order products. Notably, this case does not
    involve any specific request that Brush & Nib prepare invitations or other
    artwork for a same-sex wedding, and the City acknowledges that the
    Ordinance does not require Brush & Nib to include any particular message
    (such as a statement praising marriage equality) in the items it sells.
    Moreover, consistent with the court of appeals’ holding (unchallenged by
    the City), Brush & Nib is free to express on its website the owners’ religious
    belief that marriage is between a man and a woman. See Brush & Nib Studio,
    LC v. City of Phoenix, 
    244 Ariz. 59
    , 72–73 ¶ 31 (App. 2018).
    ¶189           Brush & Nib claims it can refuse to prepare any custom
    products for a same-sex wedding, even if they do not identify the gender of
    the two people marrying or, for items such as table place cards, even refer
    to the couple. At bottom, Brush & Nib argues that its owners’ choosing
    among customers based on their sexual orientation—as distinct from
    identifying the content of invitations or other custom products—itself
    constitutes a legally protected exercise of the freedom of speech or religion.
    ¶190            This case does not concern the content of the made-to-order
    wedding products, but instead the identity of the customer and end user.
    Such a refusal constitutes discrimination based on sexual orientation. This
    fact is not altered by Plaintiffs’ assertion that they want to refuse to provide
    custom wedding products for a same-sex wedding whether the marrying
    couple or someone else buys them. Refusing to sell to the latter—for
    example, a parent—does not make it any less discriminatory for the
    business to refuse to sell to the couple, and because the refusal is based on
    the marriage involving a same-sex couple, it is based on sexual orientation.
    See PCC § 18-4(B) (prohibiting both directly and indirectly refusing
    accommodations based on sexual orientation).
    ¶191        Unfortunately, the majority sanctions discrimination in this
    manner, concluding that Brush & Nib can refuse to prepare custom
    wedding invitations for Jordan and Alexis who share the same sex even
    60
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    though it would sell identical invitations to an opposite-sex couple with the
    same names. Moreover, although the majority limits its holding to
    wedding invitations like the exemplars in the record, supra ¶¶ 38, 112, the
    majority leaves open the prospect that vendors can otherwise refuse to
    prepare custom wedding items that “celebrate” a same-sex wedding. Supra
    ¶ 160. Today’s decision is also deeply troubling because its reasoning
    cannot be limited to discrimination related to same-sex marriage or based
    on the beliefs of any one religion, but instead extends more broadly to other
    claims of a “right” by businesses to deny services to disfavored customers.
    ¶192           We should instead recognize that the City’s interest in this
    case is compelling and narrowly tailored to enforce “rights of public access
    on behalf of [] citizens” as well as protect against deprivation of “individual
    dignity” and “the benefits of wide participation in political, economic, and
    social life.” 
    Jaycees, 468 U.S. at 625
    . As the court of appeals cogently
    observed, “[t]he least restrictive way to eliminate discrimination in places
    of public accommodation is to expressly prohibit such places from
    discriminating.” Brush & 
    Nib, 244 Ariz. at 78
    ¶ 50.
    B.
    ¶193           Arizona’s free speech clause does not entitle Brush & Nib or
    its owners to refuse to provide goods and services for same-sex couples that
    it otherwise provides to opposite-sex couples.
    ¶194           As an initial matter, because the majority has decided the case
    on statutory grounds, it should not reach the constitutional issue—a point
    we have repeatedly emphasized. See Stanwitz v. Reagan, 
    245 Ariz. 344
    , 348
    ¶ 12 (2018); State v. Gomez, 
    212 Ariz. 55
    , 61 ¶ 31 (2006). Exercising such
    restraint is especially appropriate here, where the analysis of the free speech
    claim in no way depends on the statutory claim under FERA. Moreover,
    although Arizona’s constitution provides greater protections for speech
    than does the First Amendment in some contexts, I agree with the majority
    that we should rely on First Amendment case law in analyzing the claim
    under Arizona’s free speech clause.
    ¶195          In construing article 2, section 6, Arizona courts generally
    “have followed . . . interpretations of the United States Constitution.” State
    v. Stummer, 
    219 Ariz. 137
    , 142 ¶ 16 (2008). The parties below couched their
    arguments solely in terms of First Amendment case law, and they have
    identified no reason for the Court here to give greater protections under the
    61
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    state constitution. See State v. Jean, 
    243 Ariz. 331
    , 342 ¶ 39 (2018) (“Merely
    referring to the Arizona Constitution without developing an argument is
    insufficient to preserve a claim that it offers greater protection than the
    Fourth Amendment.”). Finally, nothing in the text of our constitution or its
    history suggests that it should be read to give greater protection for
    discriminatory conduct by businesses or other public accommodations than
    does the Federal Constitution.
    ¶196           The Ordinance is content neutral and does not compel a
    vendor of publicly available goods or services to speak about anything.
    Rather, it ensures that once a vendor decides to offer a good or service, a
    vendor must not refuse to provide such goods or services to a protected
    class that it would otherwise provide to the public. Although the creation
    of wedding invitations may be expressive, the operation of a business
    catering to the public is not. Furthermore, we recognized in Coleman v. City
    of Mesa that a business engaged in expressive activity is still subject to
    generally applicable laws. 
    230 Ariz. 352
    , 360 ¶ 31 (2012); see also 
    id. at 357
    ¶ 16 (noting that “[t]he City is not attempting to impose a generally
    applicable law . . . to the on-going operations of businesses engaged in
    protected speech.”). Coleman concerned a city’s barring a tattoo studio from
    operating at a particular location; it did not address whether a business
    choosing to sell items with expressive content can refuse to sell things to
    some customers that it willingly provides to others.
    ¶197           Because the Ordinance regulates conduct, and not speech, any
    burden on speech is incidental. “[A]n incidental burden on speech . . . is
    permissible . . . so long as the neutral regulation promotes a substantial
    government interest that would be achieved less effectively absent the
    regulation.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc. (“FAIR”), 
    547 U.S. 47
    , 67 (2006) (quoting United States v. Albertini, 
    472 U.S. 675
    , 689 (1985)).
    In FAIR, the United States Supreme Court upheld a requirement that
    universities, as a condition for federal funding, provide military recruiters
    the same access to students through university communications and
    meeting rooms as allowed other prospective employers. 
    Id. at 55,
    70. The
    communications between the universities and their students were
    undoubtedly speech (even “pure” speech), but the Court recognized, citing
    public accommodations cases, that the First Amendment does not protect
    discriminatory conduct, even if such conduct is accomplished through
    speech. See 
    id. at 62–63.
    62
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    ¶198          Here the conduct prohibited by the Ordinance is a vendor’s
    refusing to sell to same-sex couples the same goods or services offered to
    others. Such a refusal is the very definition of discrimination by a public
    accommodation. That complying with the public accommodations law
    may require the vendor to engage in “speech” does not mean that
    discriminatory conduct is constitutionally protected. See, e.g., 
    FAIR, 547 U.S. at 62
    (“[I]t has never been deemed an abridgement of freedom of
    speech or press to make a course of conduct illegal merely because the
    conduct was in part initiated, evidenced, or carried out by means of
    language, either spoken, written, or printed.” (citation omitted)).
    ¶199          Hurley, on which the majority relies, is inapposite. That case
    involved a “peculiar” application of a public accommodations law to a
    privately organized parade that the Supreme Court described as
    “inherent[ly] 
    expressive[].” 515 U.S. at 568
    , 572. The Court held that the
    parade organizer could not be compelled to include groups whose views
    the organizer did not share. 
    Id. at 566.
    Hurley distinguished this situation
    from the generally permissible application of public accommodations laws
    to businesses. 
    Id. at 578;
    see also Butler v. Adoption Media, LLC, 
    486 F. Supp. 2d
    1022, 1059–60 (N.D. Cal. 2007) (noting absence of a “reported decision
    extending the holding of Hurley to a commercial enterprise carrying on a
    commercial activity”). To the extent a parade analogy is apt, this case is
    more like a supplier of banners refusing to sell to a disfavored group than
    a parade-organizer being compelled to include groups with objectionable
    views. Brush & Nib and its owners are like the suppliers, not the parade-
    organizers. The organizers would be the marrying couple and forcing them
    to include particular messages in their wedding would be more analogous
    to Hurley.
    ¶200          The majority also argues that the Spence-Johnson test for
    determining whether conduct contains an expressive element is
    inapplicable here, because the wedding invitations in the record constitute
    “pure speech.” Supra ¶ 87. The majority goes even further and holds that
    whether a message is attributed to a speaker is irrelevant in this case. Supra
    ¶ 87. But Hurley itself considered attribution relevant, and it remains a part
    of a free speech analysis. See 
    Hurley, 515 U.S. at 575
    –77; see also 
    FAIR, 547 U.S. at 65
    (noting that misattribution was not likely and did not warrant
    exempting universities from complying with Solomon Amendment). Thus,
    our analysis of the issues should consider whether others would view
    Brush & Nib’s creation of custom invitations as expressing its owners’
    endorsement of same-sex marriage.
    63
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    ¶201           The majority’s conclusion that requiring Brush & Nib to
    provide wedding invitations on a non-discriminatory basis would compel
    “pure speech” by the owners endorsing same-sex marriage is strained and
    implausible. The exemplar invitations do not suggest that they reflect the
    views of the business preparing them. See Appendix 1. Invitations to
    attend and celebrate a wedding are no more a “celebration” on the part of
    the business preparing them than is the wedding cake provided by a caterer
    or pictures taken by a wedding photographer. Contrary to the majority’s
    conclusion that an invitation constitutes “pure speech” reflecting that Brush
    & Nib endorses same-sex marriage, supra ¶ 68, the expression of a wedding
    invitation, as “perceived by spectators as part of the whole” is that of the
    marrying couple. See 
    Hurley, 515 U.S. at 577
    ; cf. 
    Coleman, 230 Ariz. at 359
    ¶ 25 (noting that “a tattoo reflects not only the work of the tattoo artist but
    also the self-expression of the person displaying the tattoo’s relatively
    permanent image”). Of course, nothing requires Brush & Nib to identify
    itself as the supplier of an invitation or precludes it from disclaiming that
    its sales constitute an endorsement of the beliefs of its customers. Cf. 
    FAIR, 547 U.S. at 49
    (“Nothing about recruiting suggests that law schools agree
    with any speech by recruiters, and nothing in the Solomon Amendment
    restricts what they may say about the military’s policies.”).
    ¶202          Even if the Ordinance burdens speech, it is a constitutionally
    permissible burden because the Ordinance is content neutral, serves a
    compelling governmental interest, and there is no less restrictive
    alternative. Long-settled law recognizes that a business cannot, based on
    its owner’s beliefs, refuse to serve customers who belong to a racial
    minority. See Newman v. Piggie Park Enters., Inc., 
    390 U.S. 400
    , 402 n.5 (1968)
    (describing such a claim as “patently frivolous”). Similarly, a business,
    even one organized as a partnership, cannot justify sex-based
    discrimination in its hiring by contending that its conduct reflects the
    freedom of association protected by the First Amendment. See Hishon v.
    King & Spalding, 
    467 U.S. 69
    , 78 (1984). And although the majority suggests
    that cases such as Heart of Atlanta Motel are not relevant because they did
    not address the First Amendment, supra ¶ 113, there is no reason to think
    that the Supreme Court would address such cases differently if that ground
    were argued as an excuse for discriminatory conduct. In Hurley, the Court
    specifically cited to Heart of Atlanta Motel while noting that public
    accommodations laws do not generally violate the First or Fourteenth
    Amendments. 
    Hurley, 515 U.S. at 572
    ; cf. Masterpiece Cakeshop, Ltd. v. Colo.
    Civil Rights Comm’n, 
    138 S. Ct. 1719
    , 1727 (2018) (citing Piggie Park in noting
    64
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    that “it is a general rule that [religious and philosophical objections to same-
    sex marriage] do not allow business owners and other actors in the
    economy and in society to deny protected persons equal access to goods
    and services under a neutral and generally applicable public
    accommodations law.”).
    ¶203           The majority’s analysis turns on labeling the conduct at issue
    “pure speech,” but this legal formalism harbors two pernicious ideas: one
    is that a vendor’s refusal to sell to certain customers is itself protected
    expression, the other is that the public interest in preventing discrimination
    does not suffice to require a vendor to serve all equally if the items sold
    involve expression by the vendor. One would think—indeed fervently
    hope—that we are long past the notion that businesses operating as public
    accommodations have a “right” to tell certain customers that they do not
    serve their kind and so they should take their patronage elsewhere.
    Although the majority baldly asserts that its holding will not allow
    “invidious, status-based discrimination,” supra ¶ 6, its reasoning suggests
    that any business offering made-to-order goods and services with
    expressive content—an open universe that includes printing, painting,
    tattoos, videography, and other “art” broadly defined—can selectively
    refuse to sell to groups of customers whom the business disfavors. Free
    speech jurisprudence does not dictate such a result, nor the result in this
    case.
    C.
    ¶204          FERA does not allow Plaintiffs to refuse services for a same-
    sex wedding that it would provide for an opposite-sex wedding. FERA
    generally protects an individual’s exercise of religion from substantial
    governmental burdens, but that protection is not unlimited. See A.R.S. § 41-
    1493.01(B), (E).
    ¶205          To prevail on their claim under FERA, Brush & Nib’s owners
    must show that refusing to provide same-sex couples with the same
    services they would provide to opposite-sex couples: (1) is motivated by
    their religious beliefs; (2) their beliefs are sincerely held; and (3) the
    government action—here, requiring equal treatment of all customers
    without regard to sexual orientation—substantially burdens the exercise of
    those beliefs. See State v. Hardesty, 
    222 Ariz. 363
    , 366 ¶ 10 (2009). Even if
    these elements are established, the prohibition on discrimination will be
    upheld if the government meets its burden of showing that it both furthers
    65
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    a compelling governmental interest and is the least restrictive means of
    furthering that interest. See 
    id. ¶206 On
    this record, there is no dispute that Brush & Nib’s owners,
    in seeking to refuse to create made-to-order invitations and other custom
    wedding products for same-sex couples, are motivated by religious beliefs
    that they sincerely hold. But the City does dispute their assertion that
    complying with the Ordinance would substantially burden the exercise of
    their religious beliefs.
    ¶207            FERA itself does not define what constitutes a “substantial
    burden.” It does, however, observe that the term “is intended solely to
    ensure that this article is not triggered by trivial, technical, or de minimis
    infractions.” § 41-1493.01(E). The majority concludes that a substantial
    burden is imposed when state action forces someone to choose between
    following the precepts of their religion and receiving a government benefit,
    or when it compels them under threat of criminal sanction to perform acts
    undeniably at odds with fundamental tenets of their religious beliefs. Supra
    ¶ 131; see also Navajo Nation v. U.S. Forest Serv., 
    535 F.3d 1058
    , 1070 (9th Cir.
    2008) (adopting similar standard for federal Religious Freedom Restoration
    Act (RFRA)).
    ¶208          In terms of a substantial burden, the issue here is whether the
    Ordinance compels Brush & Nib’s owners to perform acts undeniably at
    odds with fundamental tenets of their religious beliefs. The City notes that
    Brush & Nib’s owners are willing to sell prepackaged wedding products
    for use in same-sex weddings. The owners have also acknowledged that
    they are willing to sell made-to-order products to opposite-sex couples who
    engage in conduct they find objectionable on religious grounds. The City
    also observes that the owners have not identified any tenet of their faith that
    requires them to sell wedding products to certain customers or forbids
    them from selling them to others.
    ¶209           Because the owners do not object to selling some items for use
    in same-sex marriages or selling custom items for other weddings raising
    religious concerns, the City infers that requiring them to sell custom items
    for same-sex weddings does not substantially burden the exercise of their
    religious beliefs. The majority frames the City’s argument as declaring the
    owners’ religious beliefs “unreasonable,” and contends that such reasoning
    is foreclosed by Hobby Lobby. Supra ¶¶ 137–38. The majority errs on both
    points. The City has not argued that the owners’ beliefs are unreasonable;
    66
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    nor was such reasoning adopted by the court of appeals. See Brush & 
    Nib, 244 Ariz. at 77
    ¶ 49. Moreover, while Hobby Lobby recognizes that it is not
    the role of courts to gauge the reasonableness of a claimant’s religious
    belief, both RFRA and FERA by their terms require a court to consider
    whether a burden is substantial, itself a legal conclusion. On the latter
    point, Hobby Lobby does not suggest a court must accept a claimant’s
    assertion that a substantial burden exists. See, e.g., Real Alts., Inc. v. Sec’y
    Dep’t of Health & Human Servs., 
    867 F.3d 338
    , 356–58 (3d Cir. 2017).
    ¶210          Even if we assume that the Ordinance places a substantial
    burden on the owners’ exercise of their religious beliefs, they cannot prevail
    on their FERA claim because the City has a compelling interest in
    preventing discrimination and has done so through the least restrictive
    means. That interest would be thwarted if businesses can discriminate
    based on their owners’ views. See Masterpiece 
    Cakeshop, 138 S. Ct. at 1727
    (noting that allowing vendors of wedding goods and services to refuse
    similar services for gay persons would result in “a community-wide stigma
    inconsistent with the history and dynamics of civil rights laws that ensure
    equal access to goods, services, and public accommodations”); State v.
    Arlene’s Flowers, Inc., 
    441 P.3d 1203
    , 1235 ¶ 107 (Wash. 2019). The issue is
    not whether the City might have authorized less severe sanctions for
    violations of the Ordinance, but instead whether the goal of preventing
    discrimination could otherwise be achieved. See Tyms-Bey v. State, 
    69 N.E.3d 488
    , 491 (Ind. Ct. App. 2017).
    ¶211            The goal of equal access cannot be achieved allowing ad hoc
    exemptions for businesses based on their owners’ beliefs, even if they are
    sincerely held. The “fundamental object” of public accommodation laws is
    to prevent the “deprivation of personal dignity that surely accompanies
    denials of equal access to public establishments.” Heart of Atlanta 
    Motel, 379 U.S. at 250
    (quoting S. Rep. No. 88-872, at 16 (1964)). Allowing businesses
    to refuse services to groups they disfavor, and to publicly advertise those
    practices, is inherently unequal. This point is not undermined by the City’s
    excepting “bona fide religious organizations” from the Ordinance, as the
    issue is not whether the Ordinance has proscribed discriminatory conduct
    by every entity, but instead whether allowing a broader exception for
    businesses under FERA would undermine the statutory goal. Cf. 
    Hardesty, 222 Ariz. at 368
    –69 ¶ 23 (rejecting argument that religious-use defense for
    possession of peyote supported also recognizing FERA-based defense for
    possession of marijuana and noting “disparate magnitudes” of respective
    uses).
    67
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    ¶212           In concluding that the City has not shown the Ordinance is
    the least restrictive means of preventing discrimination, the majority
    mistakenly relies on Hobby Lobby, 
    573 U.S. 682
    (2014), and Gonzales v. O
    Centro Espirita Beneficente Uniao do Vegetal, 
    546 U.S. 418
    (2006). Supra
    ¶¶ 155–58. Neither of those cases involved a RFRA-based claim for an
    exemption from a public accommodations law, much less questioned the
    compelling interest in preventing discrimination by businesses. Cf.
    
    Hardesty, 222 Ariz. at 368
    ¶ 19 (recognizing that analysis of least restrictive
    means depends on compelling interest involved). In fact, Hobby Lobby
    recognized that considering impacts on third parties from a requested
    exemption should inform analysis of the government’s compelling interest
    and the availability of a less-restrictive means. 
    See 573 U.S. at 729
    n.37; 
    id. at 739
    (Kennedy, J., concurring) (noting that religious accommodation may
    not “unduly restrict other persons . . . in protecting their own interests”). In
    granting a religious accommodation to the closely held corporations under
    RFRA, the Court noted that doing so would have “precisely zero” effect on
    the interests of others. 
    Id. at 693.
    O Centro rejected the contention that the
    government’s interest in uniformly enforcing the Controlled Substances
    Act (CSA) was sufficiently compelling to deny a religious exemption for the
    use of hoasca, a ceremonial tea containing a proscribed hallucinogen,
    noting that the CSA itself contains an exemption for the religious use of
    
    peyote. 546 U.S. at 423
    , 425. But O Centro itself recognized that “there may
    be instances in which a need for uniformity precludes the recognition of
    exceptions to generally applicable laws under RFRA.” 
    Id. at 436.
    ¶213            The “less restrictive means” contemplated by the majority—
    allowing businesses selectively to discriminate based on their owners’
    beliefs—enables the very conduct the Ordinance legitimately seeks to
    prohibit. Unlike Hobby Lobby or O Centro, granting ad hoc exemptions to
    the Ordinance imposes discrete and identifiable harms on those subjected
    to discrimination. It is no answer to say that today’s holding is limited to
    “custom” wedding invitations or that same-sex couples may obtain
    wedding-related services from other vendors.             The prohibition on
    discrimination not only promotes equal access, but also serves to eradicate
    discrimination and the attendant humiliation and stigma that result if
    businesses can selectively treat some customers as second-class citizens.
    See, e.g., 
    Jaycees, 468 U.S. at 625
    (noting that public accommodations laws
    “vindicate ‘the deprivation of personal dignity that surely accompanies
    denials of equal access to public establishments’” (quoting Heart of Atlanta
    
    Motel, 379 U.S. at 250
    )).
    68
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    ¶214           The majority’s outcome is even more peculiar considering
    that, in 2014, the legislature attempted to pass SB 1062, which would have
    amended the definition of “person” under FERA to include “any
    individual, association, partnership, corporation, church, religious
    assembly or institution, or other business organization,” thus giving
    businesses an explicit right to invoke FERA as a defense to refusing to
    comply with, among other things, public accommodation laws. S.B. 1062,
    51st        Leg.,        2d        Reg.        Sess.       (Ariz.       2014),
    https://apps.azleg.gov/BillStatus/GetDocumentPdf/237882.              Due to
    concerns of discrimination against minority groups, the bill was vetoed by
    the governor. See Bill Chappell & Mark Memmott, Arizona Gov. Brewer
    Vetoes      Controversial       Bill,     NPR        (Feb.      26,     2014),
    https://www.npr.org/sections/thetwoway/2014/02/25/282507942/ariz
    ona-gov-brewer-vetoes-controversial-bill; cf. J.D. v. Hegyi, 
    236 Ariz. 39
    , 43
    ¶ 21 (2014) (rejecting court of appeals’ statutory interpretation in part as in
    tension with statutory purpose, when legislature considered and rejected
    proposed amendment).
    ¶215          The majority errs in concluding that the City has not met its
    burden under FERA. The majority is likewise unpersuasive in asserting
    that its holding is narrow with limited consequences. Supra ¶¶ 3, 112.
    Saying that today’s decision applies only to custom wedding invitations
    that are “materially similar” to those in the record, supra ¶ 3, does not
    delimit the ruling even as to wedding-related products, as the majority does
    not identify the salient characteristics of the invitations in the record;
    observes that every invitation is “different and unique,” supra ¶ 78; and
    disclaims addressing whether Brush & Nib can refuse to provide other
    custom products for same-sex weddings. Supra ¶ 3. More broadly, if
    religious beliefs can allow discriminatory refusals of service to same-sex
    couples, there is no principled reason why FERA will not also protect
    discriminatory denials of goods or services in other contexts to other
    protected groups.
    D.
    ¶216           This case is not about the government compelling individuals
    to create art or pure speech expressing a message with which they disagree.
    Instead, it involves a business, undisputedly a public accommodation,
    whose owners wish to deny the same goods and services for a same-sex
    wedding that they would provide for an opposite-sex wedding. Barring
    69
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUSTICE BALES (RET.), joined by VICE CHIEF JUSTICE TIMMER AND JUDGE
    STARING, Dissenting
    those who choose to offer goods and services to the public from
    discriminating does not impermissibly compel speech. A vendor may no
    doubt engage in a form of expression by refusing to sell things to customers
    it disfavors. But expression through such discriminatory conduct, even if
    motivated by sincerely held religious beliefs, is not legally protected.
    ¶217           Beyond the injury to particular customers who are denied
    goods or services, today’s holding threatens a more general harm. It could
    portend a marketplace in which vendors—regardless of their religious
    beliefs—who make items with expressive content can openly proclaim their
    refusal to sell to customers whom they disfavor, as can vendors—whether
    or not they sell items with expressive content—who, based on their
    religious beliefs, object to selling things to some customers that they offer
    to others. This prospect diminishes our defining statement that all are
    created equal and can only dismay those who believe that this ideal should
    be “constantly looked to, constantly labored for, and even though never
    perfectly attained, constantly approximated, and thereby constantly
    spreading and deepening its influence.” Abraham Lincoln, Speech at
    Springfield, Illinois (June 26, 1857), in Abraham Lincoln: Speeches and
    Writings 1832–1858 398 (1989).
    ¶218           Over our history, Arizonans have been denied access to
    housing, employment, and public accommodations based on invidious
    discrimination. Phoenix’s early history includes shopkeepers placing “No
    Mexicans Allowed” signs in their shop windows, landowners inserting
    restrictions against people of Chinese descent in property deeds,
    widespread refusals to serve black Arizonans in restaurants, and hotel
    operators refusing to accommodate Jewish guests. Bradford Luckingham,
    Minorities in Phoenix 40, 116, 148 (1994); Hon. Elizabeth Finn, The Struggle
    for Civil Rights in Arizona, 34 Ariz. Att’y 24, 27 (July 1998). Through years
    of hard work and perseverance, protections like the Ordinance have been
    put in place to ensure that we do not repeat the denials of access and
    opportunity that plagued our state in its infancy.
    ¶219          This case, sadly, illustrates that our progress toward equality
    has been tortuous and incomplete. Despite today’s mistaken holding, our
    constitutions and laws should not entitle a business to discriminatorily
    refuse to provide goods or services to customers whom the business
    disfavors.
    70
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    TIMMER, V.C.J., dissenting.
    ¶220            I respect and admire people who not only profess religious
    faith but attempt to live by their religious principles. Nevertheless, in an
    ordered society of many beliefs, “every person cannot be shielded from all
    the burdens incident to exercising every aspect of the right to practice
    religious beliefs.” United States v. Lee, 
    455 U.S. 252
    , 261 (1982). When people
    of faith, like Plaintiffs, choose to engage in commercial activities, “the limits
    they accept on their own conduct as a matter of conscience and faith are not
    to be superimposed on the statutory schemes which are binding on others
    in that activity.” 
    Id. The Ordinance,
    which binds businesses in the City,
    similarly binds Plaintiffs, and neither Arizona’s free speech provision nor
    FERA provides an exemption. Although I agree wholeheartedly with
    Justice Bales’ dissent, the alarming consequences of today’s decision spur
    me to emphasize some points. I also write separately to express
    disagreement with the majority’s “substantial burden” analysis under
    FERA.
    ¶221           First, the majority errs by concluding that the Ordinance
    compels Plaintiffs to express messages supporting same-sex marriages,
    “cuts off the Plaintiffs’ right to express their beliefs about same-sex
    marriage,” and attempts to coerce “uniformity of beliefs and ideas” by
    “telling [Plaintiffs] what they can and cannot say.” See supra ¶¶ 7-8, 103.
    The Ordinance regulates conduct, not speech. It only requires Plaintiffs to
    sell the same products equally to all customers, regardless of sexual
    orientation. Plaintiffs retain control over the type of products they sell, their
    style and design, and the specific messages written. Thus, if Plaintiffs
    would not design a wedding invitation with a pink triangle or a rainbow
    flag for an opposite-sex couple, the Ordinance cannot compel them to do so
    for a same-sex couple. If they always include language in wedding
    invitations for opposite-sex couples describing marriage as a union only
    between men and women, they can insist on doing so in same-sex wedding
    invitations without penalty. They can freely publish views opposing same-
    sex marriages or say nothing at all about marriages. But because Plaintiffs
    design and sell custom invitations expressing customers’—not Plaintiffs’—
    requests for guests to “share the joy,” “celebrate,” or simply attend
    weddings, Plaintiffs cannot refuse to do so for same-sex couples.
    ¶222            Relatedly, the majority mistakenly contends that requiring
    Plaintiffs to sell custom wedding products intended for same-sex weddings
    compels them to endorse same-sex marriages in violation of their beliefs.
    71
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    See supra ¶ 103. I disagree. A wedding invitation invites attendees to
    celebrate a particular couple’s wedding; it does not endorse the idea of
    opposite-sex marriages or same-sex marriages. See Janus v. Am. Fed’n of
    State, Cty., & Mun. Emps., Council 31, 
    138 S. Ct. 2448
    , 2463–64 (2018)
    (“[c]ompelling individuals to mouth support for views they find
    objectionable” generally violates First Amendment principles). The
    meaning of these expressions—invitations to attend a wedding—does not
    change as the sexual orientation of customers varies. And it defies common
    sense to think that a wedding invitation expresses a commercial artist’s
    endorsement of the subject wedding whether it involves, for example, a
    same-sex couple, an opposite-sex couple in an abusive relationship, or a
    loveless match. Cf. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,
    
    547 U.S. 47
    , 64–65 (2006) (rejecting law schools’ argument that allowing the
    military to recruit at the schools evidences the schools’ agreement with
    military policies).
    ¶223           Second, the majority misapplies FERA’s “substantial burden”
    requirement by failing to consider how the Ordinance itself—before
    considering penalties for violations—substantially burdens Plaintiffs’
    exercise of their beliefs. A.R.S. § 41-1493.01(B), (E) (providing that FERA is
    triggered only if government laws, rules, or other actions “substantially
    burden a person’s exercise of religion,” which excludes “trivial, technical or
    de minimis infractions”). If the Ordinance’s proscription of discrimination
    in public accommodation does not substantially burden Plaintiffs’ free
    exercise of religion in the first instance, there is no need to consider the
    potential penalties for violating the Ordinance. So how does requiring
    Plaintiffs to sell the same type of wedding products to opposite-sex and
    same-sex couples burden Plaintiffs’ exercise of their sincerely held religious
    beliefs? And what makes any burden “substantial” and not “trivial,
    technical or de minimis”? The majority does not say. Instead, it incorrectly
    focuses only on the penalties for violating the Ordinance, finding a
    substantial burden exists here because if Plaintiffs adhere to their sincerely
    held religious beliefs and refuse to sell custom wedding invitations for
    same-sex weddings, they could suffer “severe civil and criminal sanctions.”
    See supra ¶ 135.
    ¶224          The majority’s misapplication of FERA’s “substantial
    burden” requirement effectively eliminates it. Under the FERA paradigm
    announced today, a claimant need only demonstrate that exercise of a
    sincerely held religious belief conflicts with a law, which could result in a
    penalty. The claimant has no need to demonstrate that the law itself
    substantially burdens the claimant’s exercise of religion—a requirement
    72
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    intended to remove trivial and de minimis infringements from FERA’s
    protection. Thus, as the City predicts, a Phoenix taxi-cab owner with a
    religious belief that women should only travel with men and who therefore
    refuses to accept unaccompanied women riders can show a substantial
    burden under FERA just by demonstrating the sincerity of his beliefs and
    pointing to the potential penalties for violating the Ordinance. It is not
    difficult to imagine similarly discriminatory scenarios involving race, color,
    religion, sex, national origin, marital status, and disability, all of which the
    Ordinance proscribes. See Phx., Ariz., City Code § 18-4(B).
    ¶225           In my view, whether a “substantial burden” on the exercise of
    religion exists under FERA is a legal question for the courts rather than a
    factual question determined by the sincerity of a person’s religious beliefs
    and the existence of penalties for exercising those beliefs in a manner that
    violates a law. See Pennsylvania v. President United States, 
    930 F.3d 543
    , 572
    n. 28 (3d Cir. 2019); Real Alts., Inc. v. Sec’y Dep’t of Health and Human Servs.,
    
    867 F.3d 338
    , 356 (3d Cir. 2017). Thus, “[w]hile the Supreme Court
    reinforced in Hobby Lobby that [courts] should defer to the reasonableness of
    the [RFRA claimant’s] religious beliefs, this does not bar our objective
    evaluation of the nature of the claimed burden and substantiality of that
    burden on the [claimant’s] religious exercise.” Real 
    Alts., 867 F.3d at 356
    (alterations in original and added) (citation omitted); see also Burwell v.
    Hobby Lobby Stores, Inc., 
    573 U.S. 682
    , 724 (2014) (characterizing the RFRA
    issue as whether the government imposed a substantial burden on the
    parties to conduct business in accordance with their religious beliefs and
    not whether those beliefs are reasonable); Mahoney v. Doe, 
    642 F.3d 1112
    ,
    1121 (D.C. Cir. 2011) (“[T]o make religious motivation the critical focus is .
    . . to read out of RFRA the condition that only substantial burdens on the
    exercise of religion trigger the compelling interest requirement.” (citation
    omitted)).
    ¶226          Relying on Hobby Lobby, the majority asserts it cannot decide
    whether the Ordinance itself substantially burdens Plaintiffs’ exercise of
    their sincerely held religious belief that marriage occurs only between a
    man and a woman because doing so would require the Court to decide the
    reasonableness of Plaintiffs’ religious views, which is nonjusticiable. See
    supra ¶¶ 136–40. I recognize that some language in Hobby Lobby supports
    the majority’s position. See Hobby 
    Lobby, 573 U.S. at 725
    (stating that
    plaintiffs “sincerely believe that providing the insurance coverage
    demanded by the HHS regulations lies on the forbidden side of the line,
    and it is not for us to say that their religious beliefs are mistaken or
    insubstantial. Instead, our ‘narrow function . . . in this context is to
    73
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    determine’ whether the line drawn reflects ‘an honest conviction’”). But the
    Court in Hobby Lobby did not address whether a sincere religious belief
    alone would suffice under RFRA when a business is compelled by a public
    accommodation law to provide goods and services equally to customers, as
    opposed to funding morally objectionable acts, and it may well address the
    issue differently in that context. Cf. Masterpiece Cakeshop, Ltd. v. Colo. Civil
    Rights Comm’n, 
    138 S. Ct. 1719
    , 1727 (2018) (noting that while religious
    objections to same-sex marriage are constitutionally protected, “it is a
    general rule that such objections do not allow business owners and other
    actors in the economy and in society to deny protected persons equal access
    to goods and services under a neutral and generally applicable public
    accommodations law”); 
    id. (stating that
    although objecting clergy cannot be
    compelled to perform a same-sex wedding ceremony, “if that exception
    were not confined, then a long list of persons who provide goods and
    services for marriages and weddings might refuse to do so for gay persons,
    thus resulting in a community-wide stigma inconsistent with the history
    and dynamics of civil rights laws that ensure equal access to goods,
    services, and public accommodations”). Regardless, although instructive,
    Hobby Lobby is not binding on our interpretation of FERA any more than
    RFRA is binding on the City.
    ¶227            A “substantial burden” under FERA occurs only if the
    Ordinance (1) compels claimants “to choose between following the precepts
    of [their] religion and forfeiting benefits, on the one hand, and abandoning
    one of the precepts of [their] religion in order to accept work, on the other
    hand,” Sherbert v. Verner, 
    374 U.S. 398
    , 404 (1963), or (2) threatens claimants
    with criminal sanctions unless they “perform acts undeniably at odds with
    fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 
    406 U.S. 205
    , 218 (1972). A court’s inquiry should focus on “the nexus between
    religious practice and religious tenet: whether the regulation at issue forced
    plaintiffs to engage in conduct that their religion forbids or prevents them
    from engaging in conduct their religion requires.” 
    Mahoney, 642 F.3d at 1121
    (interlineations accepted) (citation omitted).
    ¶228         Plaintiffs have not shown that the Ordinance substantially
    burdens the exercise of their religious beliefs. The Ordinance does not
    compel them to express approval of same-sex marriages, and they would
    not be penalized for refusing to design wedding products expressing such
    approval. See 
    Sherbert, 374 U.S. at 404
    .      Plaintiffs do not claim that
    “fundamental tenets of their religious beliefs,” see 
    Yoder, 406 U.S. at 218
    ,
    require them to refrain from selling custom wedding products (as opposed
    to non-custom goods) related to same-sex weddings. See supra ¶ 160
    74
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    (“Plaintiffs have never asserted that their faith precludes them from serving
    same-sex couples, or that it requires them to refuse service to a customer
    based on their sexual orientation.”). Nor does selling custom wedding
    products for same-sex weddings make Plaintiffs participants in such
    weddings as such items do not themselves “enabl[e] or facilitat[e]”
    weddings any more than would the artistically created but non-custom
    wedding products Plaintiffs willingly sell for use in same-sex weddings.
    See Hobby 
    Lobby, 573 U.S. at 724
    .
    ¶229          Selling custom wedding products for same-sex weddings
    may “decrease[] the spirituality, the fervor, or the satisfaction” with which
    Plaintiffs practice their religion. See Navajo Nation v. U.S. Forest Serv., 
    535 F.3d 1058
    , 1063 (9th Cir. 2008) (stating that such impacts do not constitute a
    “substantial burden” under RFRA). But they have not shown that selling
    the same custom items to customers for use in opposite-sex and same-sex
    weddings forces Plaintiffs to choose between running their business and
    following their faith, see 
    Sherbert, 374 U.S. at 404
    , or is “undeniably at odds
    with fundamental tenets of their religious beliefs.” See 
    Yoder, 406 U.S. at 218
    .
    ¶230          Despite the majority’s unfounded assertion, see supra ¶¶ 141-
    42, I fully embrace that Plaintiffs’ religious beliefs are sincere and
    substantial. Nevertheless, deference to Plaintiffs’ sincere religious beliefs
    should not require deference to their assertion that the Ordinance
    substantially burdens their exercise of those beliefs. It is our role as jurists
    to decide whether they proved FERA’s substantial burden requirement. On
    this record, like the trial court, I conclude they have only shown a de
    minimis burden and so FERA is not triggered. See § 41-1493.01(E).
    ¶231          Third, the majority ignores Plaintiffs’ request to be relieved
    from designing other custom wedding-related items for same-sex
    marriages, such as wedding invitations that do not include celebratory
    messages, “save the date” notices, table numbers, menus, and “welcome”
    signs. Samples of those items are in the record, so no reason exists not to
    address them. See Appendix 2. The majority possibly ignores the request
    because, for example, it is difficult to understand how a menu proclaiming
    that guests are having beef tenderloin for dinner communicates anything
    other than what meal guests will be served. That message remains the same
    whether those guests are attending an opposite-sex wedding or a same-sex
    wedding. And it is difficult to discern how designing and selling such items
    substantially burdens Plaintiffs’ exercise of their religious beliefs in
    violation of FERA. Putting aside whether requiring Plaintiffs to design
    75
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    VICE CHIEF JUSTICE TIMMER , Dissenting
    custom wedding invitations expressing messages of “celebration” or “joy”
    for same-sex weddings is compelled speech and violates FERA, the
    majority missteps by neglecting to tell Plaintiffs they must at least design
    and sell wedding invitations lacking celebratory language and items like
    table numbers, menus, and welcome signs equally for both same-sex
    weddings and opposite-sex weddings. As a result, the City, Plaintiffs, like-
    minded businesses, and the lower courts are left with incomplete guidance.
    ¶232          I greatly respect my colleagues in the majority. Regardless, in
    my view, their analysis is flawed, it leaves issues unresolved, and, most
    distressingly, it unduly hinders public accommodation laws seeking to
    ensure that businesses serve persons equally regardless of their status,
    including sexual orientation. I dissent.
    76
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUDGE STARING , Dissenting
    STARING, J., dissenting.
    ¶233          I respectfully dissent, joining Justice Bales’s dissent. I write
    separately to briefly address the following points.
    ¶234           For “custom wedding invitations that are materially similar
    to the invitations contained in the record,” supra ¶ 112, the majority finds
    an exception to the general enforceability of public accommodation laws,
    see Masterpiece 
    Cakeshop, 138 S. Ct. at 1727
    (importance of limiting
    exceptions to public accommodation laws); 
    Hurley, 515 U.S. at 572
    (public
    accommodation laws “do not, as a general matter, violate the First or
    Fourteenth Amendments”). I am, however, very skeptical concerning the
    effectiveness of the majority’s expressions of limitation. It is hardly difficult
    to envision objections to providing public accommodations involving other
    forms of artistic expression no less substantial than the custom wedding
    invitations here. See Masterpiece 
    Cakeshop, 138 S. Ct. at 1723
    (“examples of
    possibilities that seem all but endless”). Is there, for example, a meaningful
    difference between drawings and lettering on cardstock and the same
    drawings and lettering on a cake? Must the baker use the piping bag to
    provide exactly the same message for the very same wedding the
    calligrapher may refuse to employ the pen? Our state’s lower courts—one
    of which I sit on—will struggle with limiting today’s holding when
    confronted with circumstances that are not meaningfully distinct. This case
    will sweep much more broadly than the majority expresses.
    ¶235           Among other things, I am concerned that, ironically, today’s
    holding could be relied on to discriminate against individuals based on
    their religion and religious beliefs, notwithstanding the fact that both
    Arizona and Phoenix include religion as a basis for protection in their
    public accommodation laws. See A.R.S. § 41-1442(A); PCC § 18-4(B). This
    concern is partially premised on the fact that, based on the plain language
    of A.R.S. § 41-1493.01(E), the holding in Hobby Lobby, and the axiomatic
    constitutional proscription against government evaluation of the validity of
    religious beliefs, see Masterpiece 
    Cakeshop, 138 S. Ct. at 1731
    , the task of
    showing a substantial burdening of sincerely held religious beliefs under
    FERA may be accomplished with relative ease. In fact, in light of these
    authorities, I generally agree with the majority’s conclusion—although not
    with all facets of its analysis—that Brush & Nib has established that PCC
    § 18-4(B) substantially burdens its owners’ free exercise of religion. But the
    ease with which a party may establish a substantial burden places a
    premium on correctly analyzing the compelling state interest and least
    restrictive means elements of FERA, particularly in a circumstance like
    considering whether to grant an exception to public accommodation laws.
    77
    BRUSH & NIB ET AL. V. CITY OF PHOENIX
    JUDGE STARING , Dissenting
    Justice Bales correctly analyzes those elements in his dissent, which, as
    noted, I join.
    78
    APPENDIX 
    1 Ohio App. 269
    App. 272
    APPENDIX 2