Brush & Nib v. Phoenix

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BRUSH & NIB STUDIO, LC, et al., Plaintiffs/Appellants/Cross-Appellees,
v.
CITY OF PHOENIX, Defendant/Appellee/Cross-Appellant.
No. 1 CA-CV 16-0602
FILED 6-7-2018
Appeal from the Superior Court in Maricopa County
No. CV2016-052251
The Honorable Karen A. Mullins, Judge
AFFIRMED AS MODIFIED
COUNSEL
Alliance Defending Freedom, Scottsdale
By Jeremy D. Tedesco, Jonathan A. Scruggs, Samuel D. Green
Co-Counsel for Plaintiffs/Appellants/Cross-Appellees
Helm, Livesay & Worthington, Tempe
By Roberta S. Livesay
Co-Counsel for Plaintiffs/Appellants/Cross-Appellees
Osborn Maledon, P.A., Phoenix
By Colin F. Campbell, Eric M. Fraser, Joshua David Rothenberg Bendor
Co-Counsel for Defendant/Appellee/Cross-Appellant
Phoenix City Attorney’s Office, Phoenix
By Brad Holm, Heidi E. Gilbert
Co-Counsel for Defendant/Appellee/Cross-Appellant
Margrave Celmins, P.C., Scottsdale
By Michael Kitchen
Counsel for Amici Curiae Constitutional Jurisprudence
Law Offices of Kevin L. Beckwith, P.C., Phoenix
By Kevin Beckwith
Counsel for Amici Curiae Law and Economics Scholars
Center for Arizona Policy, Phoenix
By William M. Clark
Co-counsel for Amici Curiae Center for Religious Expression and Center for
Arizona Policy
Center for Religious Expression, Memphis, Tennessee
By Nathan W. Kellum, appearing pro hac vice
Co-counsel for Amici Curiae Center for Religious Expression and Center for
Arizona Policy
Joshua Carden Law Firm, P.C., Scottsdale
By Joshua Carden
Co-counsel for Amici Curiae Coalition for Jewish Values, Ethics and Religious
Liberty Commission, Jews for Religious Liberty, and The Rabbinical Alliance of
America, Inc.
Perkins Coie LLP, Phoenix
By Daniel C. Barr, Barry Grant Stratford, Katherine Elizabeth May
Counsel for Amicus Curiae Arizona Businesses
Mayes Telles PLLC, Phoenix
By Jessica Hernandez
Co-counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.
Lambda Legal Defense and Education Fund, Inc., Los Angeles, California
By Jennifer C. Pizer, Nancy C. Marcus, both appearing pro hac vice
Co-counsel for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.
2
American Civil Liberties Union, Phoenix
By Kathleen E. Brody
Co-counsel for Amici Curiae American Civil Liberties Union, American Civil
Liberties Union of Arizona, Arizona Trans Youth & Parent Organization,
Equality Arizona, GLSEN Phoenix, Human Rights Campaign, One n Ten,
Phoenix Pride, Southern Arizona AIDS Foundation, Southern Arizona Gender
Alliance, Southern Arizona Senior Pride, Trans Queer Pueblo, Trans Spectrum of
Arizona
American Civil Liberties Union, New York, New York
By Brian Hauss, appearing pro hac vice
Co-counsel for Amicus Curiae American Civil Liberties Union, American Civil
Liberties Union of Arizona, Arizona Trans Youth & Parent Organization,
Equality Arizona, GLSEN Phoenix, Human Rights Campaign, One n Ten,
Phoenix Pride, Southern Arizona AIDS Foundation, Southern Arizona Gender
Alliance, Southern Arizona Senior Pride, Trans Queer Pueblo, Trans Spectrum of
Arizona
OPINION
Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
W I N T H R O P, Presiding Judge:
¶1 Joanna Duka and Breanna Koski (“Appellants”) are the
owners of Brush & Nib Studio, LC (“Brush & Nib”). Appellants filed a pre-
enforcement action against the City of Phoenix (“Phoenix”) challenging the
constitutionality of Phoenix City Code 18-4(B) (“Section 18-4(B)”) and
seeking a preliminary injunction to bar enforcement of the ordinance.
Appellants appeal the superior court’s denial of their preliminary
injunction and grant of summary judgment in favor of Phoenix. For the
following reasons, we affirm as modified.
FACTS AND PROCEDURAL HISTORY
¶2 Brush & Nib is a for-profit limited liability company, which
sells pre-fabricated and design artwork for home décor, weddings, and
special events. Appellants provide retail goods and services to the public
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Opinion of the Court
and acknowledge they operate a place of public accommodation as defined
in Phoenix City Code § 18.1
¶3 Appellants are devout Christians and believe their work is
inextricably related to their religious beliefs. Appellants’ goods and
services include both customer-directed projects (work created through a
consultation between Appellants and their customer) and pre-fabricated
merchandise (work created without Appellants’ knowledge of how the
items will be used or who will use those products).2 Appellants believe
their customer-directed and designed wedding products “convey messages
about a particular engaged couple, their upcoming marriage, their
upcoming marriage ceremony, and the celebration of that marriage.”
Appellants also strongly believe in an ordained marriage between one man
and one woman, and argue that they cannot separate their religious beliefs
from their work. As such, they believe being required to create customer-
specific merchandise for same-sex weddings will violate their religious
beliefs.
¶4 Appellants want to be able to legally refuse to create custom-
made merchandise for all same-sex weddings. Additionally, Appellants
desire to post a public statement explaining their religious beliefs.
Appellants’ proposed statement, in part, would notify potential customers
that “Brush & Nib Studio won’t create any artwork that violates [their]
vision as defined by [their] religious and artistic beliefs and identity,” which
includes “artwork that demeans others, endorses racism, incites violence,
contradicts [their] Christian faith, or promotes any marriage except
1 Section 18-3 defines places of public accommodation as:
[A]ll public places of entertainment, amusement or
recreation, all public places where food or beverages are sold,
public places operated for the lodging of transients or for the
benefit, use or accommodation of those seeking health or
recreation and all establishments offering their services,
facilities or goods to or soliciting patronage from the members
of the general public. Any dwelling, any private club or any
place which is in its nature distinctly private is not a place of
public accommodation.
2 Appellants may utilize hand-painting and hand-lettered calligraphy
in designing announcements, invitations, table and place cards, menus,
wedding signs, and other specialized wedding décor.
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marriage between one man and one woman.” Appellants have not posted
this statement because they believe it would violate Section 18-4(B).
Instead, Appellants sought a preliminary injunction to bar Phoenix from
enforcing Section 18-4(B) and a declaration that Section 18-4(B) violates the
Arizona Constitution’s free speech clause, religious toleration clause, equal
protection clause, due process clause, and the Arizona Free Exercise of
Religion Act (“FERA”).3
¶5 Phoenix filed a motion to dismiss and the case proceeded to a
bench trial before the superior court. The superior court denied Phoenix’s
motion to dismiss, finding Appellants had standing and the case was
justiciable. The court then denied Appellants’ motion for a preliminary
injunction, finding Section 18-4(B) did not violate Appellants’ freedom of
speech nor substantially burden their exercise of religion. Appellants
timely appealed the denial of the preliminary injunction to this court and
moved to stay proceedings before the superior court. The court denied
Appellants’ request. Appellants then moved, and Phoenix cross-moved,
for summary judgment. The court granted Phoenix’s motion for summary
judgment on all claims. Appellants filed a timely appeal from the court’s
summary judgment ruling and moved to consolidate that appeal with the
appeal from the denial of the preliminary injunction.4 We granted
Appellants’ request, and have jurisdiction over this consolidated appeal
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016) and 12-
2101(A)(1) (2016).
ANALYSIS
¶6 Arizona courts have long upheld the public’s right to
participate in society without fear of discrimination. See Phillips v. Phoenix
Union High Schs., Maricopa Cty. Super. Ct. No. 72909 (1953) (enjoining
Phoenix Union High Schools from segregating pupils based on race); accord,
Heard v. Davis, Maricopa Cty. Super. Ct. No. 77497 (1954). The Phillips court
expressly found that “democracy rejects any theory of second-class
citizenship” and that “[a] half century of intolerance is enough.” Id.; see also
Paul Rees, A Civil Rights Victory, Pre-Loving, 53 Ariz. Att’y 84 (Aug. 2017)
3 Appellants do not raise in this appeal alleged violations of the
religious toleration clause or their due process rights.
4 Phoenix filed a cross-appeal, arguing Appellants lacked standing.
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(noting that Arizona repealed its anti-miscegenation law before the United
States Supreme Court found such laws unconstitutional).
¶7 In 2014, however, the Arizona legislature sought to amend
FERA to expand the definition of a protected person from “a religious
assembly or institution” to “any individual, association, partnership,
corporation, church, religious assembly or institution, estate, trust,
foundation or other legal entity.” S.B. 1062, 2014 Leg., 51st 2d. Reg. Sess.
(Ariz. 2014). Although S.B. 1062 was ultimately vetoed, it was viewed by
some as a reaction to the development of antidiscrimination ordinances,
which included sexual orientation as a protected class, and the national
trend in favor of granting broader rights to same-sex couples. Dinita L.
James, Amid SB 1062 Frenzy, Tempe Becomes 4th AZ City to Protect LGBT
Status, 20 No. 11 Ariz. Emp. L. Letter 1 (2014).
¶8 Currently, nineteen states have enacted public
accommodation antidiscrimination laws which include sexual orientation
and gender identity as protected classes. See Equality Maps/Non-
Discrimination Laws, Movement Advancement Project (2018),
http://www.lgbtmap.org/equality-maps/non_discrimination_laws.
Arizona’s public accommodation antidiscrimination statute, however, does
not specifically include sexual orientation as a protected class. See A.R.S.
§ 41-1442(A) (2017). Accordingly, several Arizona cities have enacted
broader ordinances to prohibit discrimination based on sexual orientation
in places of public accommodation. See TEMPE CODE CH. 2 Art. VIII § 2-601
(2014); FLAGSTAFF CODE CH. 14 § 14-02-001-0001 (2013); TUCSON CODE Art.
II § 17-1 (1999). Like Tempe, Flagstaff, and Tucson, Phoenix’s Code, Section
18-4(B), as amended in 2013, prohibits discrimination in places of public
accommodation based on sexual orientation. Section 18-4(B) provides that:
No person shall, directly or indirectly, refuse, withhold from,
or deny to any person, or aid in or incite such refusal, denial
or withholding of, accommodations, advantages, facilities or
privileges thereof because of race, color, religion, sex, national
origin, marital status, sexual orientation, gender identity or
expression, or disability nor shall distinction be made with
respect to any person based on race, color, religion, sex,
national origin, marital status, sexual orientation, gender
identity or expression, or disability in connection with the
price or quality of any item, goods or services offered by or at
any place of public accommodation.
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It is unlawful for any owner, operator, lessee, manager, agent
or employee of any place of 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 race, color, religion, sex, national origin,
marital status, sexual orientation, gender identity or
expression, or disability or that any person, because of race,
color, religion, sex, national origin, marital status, sexual
orientation, gender identity or expression, or disability would
be unwelcome, objectionable, unacceptable, undesirable or
not solicited.
Phoenix City Code § 18-4(B)(2)-(3) (2013).5
¶9 On appeal, Appellants raise a myriad of constitutional issues,
arguing that Section 18-4(B) is unconstitutional, both on its face and as-
applied, and that any enforcement of Section 18-4(B) would violate their
First Amendment right to free speech and free exercise of religion under
state law. Appellants are not the first to attempt to use their religious beliefs
to justify practices others consider overtly discriminatory. See Bob Jones
Univ. v. United States, 461 U.S. 574 (1983) (finding a school, which prohibited
interracial dating and marriage, could no longer receive tax-exempt status).
Although the law has at times recognized religious beliefs as justification
for discriminatory practices,6 modern societal trends are to the contrary. See
5 Section 18-4(B)(4) provides an exemption for bona fide religious
organizations. Appellants have not asserted that they qualify as a bona fide
religious organization.
6 In Loving v. Virginia, the trial court sentenced the Lovings to jail
because of their interracial marriage and stated that:
Almighty God created the races white, black, yellow, malay
and red, and he placed them on separate continents. And but
for the interference with his arrangement there would be no
cause for such marriages. The fact that he separated the races
shows that he did not intend for the races to mix.
The United States Supreme Court vacated the sentence, finding laws which
criminalized interracial marriage unconstitutional. 388 U.S. 1, 3 (1967).
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McLaughlin v. Jones, 243 Ariz. 29, 33, ¶ 13 (2017) (“Denying same-sex couples
‘the same legal treatment’ in marriage . . . and ‘all the benefits’ afforded
opposite-sex couples, ‘works a grave and continuing harm’ on [same-sex
couples] in various ways—demeaning them, humiliating and stigmatizing
their children and family units, and teaching society that they are inferior
in important respects.” (citing Obergefell v. Hodges, 135 S. Ct. 2584, 2600-02,
2604 (2015)); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (finding when
the state criminalizes same-sex couples’ conduct it “is an invitation to
subject homosexual persons to discrimination both in the public and in the
private spheres”).
¶10 While this case may be the first of its kind in Arizona, Brush
& Nib is only one of numerous national litigants who seek to preserve and
define their religious freedoms in the face of ordinances which prohibit
places of public accommodation from discriminating based on sexual
orientation. See Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)
(finding a photographer’s refusal to take photographs of a same-sex
wedding violated New Mexico’s antidiscrimination laws), cert. denied, 134
S. Ct. 1787 (2014); Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App.
2015) (finding Colorado’s antidiscrimination statute, which prohibits places
of public accommodation from refusing services on the basis of sexual
orientation, did not violate the baker’s freedom of speech or freedom of
religion), cert. denied, No. 15SC738 (Colo. Apr. 25, 2016), reversed on other
grounds, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-
111, slip op. (U.S. June 4, 2018); Washington v. Arlene’s Flowers, Inc., 389 P.3d
543 (Wash. 2017) (finding a florist’s refusal to provide custom arranged
flowers for a same-sex wedding constituted sexual orientation
discrimination and was unlawful under Washington’s antidiscrimination
law), cert. docketed, No. 17-108 (U.S. Jul. 17, 2017); Telescope Media Grp. v.
Lindsey, 271 F.Supp.3d. 1090 (D. Minn. 2017) (finding the Minnesota Human
Rights Act, which prohibits places of public accommodation from
discriminating based on sexual orientation, does not infringe a business
owner’s First and Fourteenth Amendment rights); Gifford v. McCarthy, 137
A.D.3d 30 (N.Y.S. 3d. 2016) (finding venue rental owners could not refuse
to rent space for a same-sex wedding).
¶11 In light of these cases and consistent with the United States
Supreme Court’s decisions, we recognize that a law allowing Appellants to
refuse service to customers based on sexual orientation would constitute a
“grave and continuing harm.” Obergefell, 135 S. Ct. at 2604. As most
recently expressed by the Supreme Court:
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Our society has come to the recognition that gay persons and
gay couples cannot be treated as social outcasts or as inferior
in dignity and worth. For that reason the laws and the
Constitution can, and in some instances must, protect them in
the exercise of their civil rights. The exercise of their freedom
on terms equal to others must be given great weight and
respect by the courts. At the same time, the religious and
philosophical objections to gay marriage are protected views
and in some instances protected forms of expression. As this
Court observed in Obergefell v. Hodges, 135 S. Ct. at 2584, “[t]he
First Amendment ensures that religious organizations and
persons are given proper protection as they seek to teach the
principles that are so fulfilling and so central to their lives and
faiths.” Id. at 2607. Nevertheless, while those religious and
philosophical objections are 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. See Newman v. Piggy
Park Enterprises, Inc., 390 U.S. 400, 402 n.5 (1968) (per curiam);
see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these
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”).
Masterpiece Cakeshop, Ltd., slip op. at 9-10.
¶12 With this background in mind, we address each of the parties’
arguments in turn.
I. Standing
¶13 As an initial matter, Phoenix argues in its cross-appeal that
Appellants’ claims fail for lack of standing and ripeness because no case or
controversy exists. The parties agree that, in this case, the underlying
concerns for standing and ripeness are the same; accordingly, we address
both issues under one analytical framework. 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.”).
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¶14 The Arizona Constitution, unlike that of the United States,
does not expressly limit courts to only deciding matters which involve a
case or controversy. Bennett v. Napolitano, 206 Ariz. 520, 525, ¶ 19 (2003).
We find, however, “that as a matter of sound jurisprudence a litigant
seeking relief in the Arizona courts must first establish standing to sue.” Id.This is especially true “in actions in which constitutional relief is sought
against the government.” Id. at 524, ¶ 16 (citing Sears v. Hull, 192 Ariz. 65,
71 (1998)). Further, although federal law does not govern our standing
analysis, we look to federal law as instructive on the issue. Id. at 525, ¶ 22.
¶15 Phoenix relies on Thomas v. Anchorage Equal Rights Comm’n to
argue Appellants have not asserted a justiciable claim. 220 F.3d 1134. In
Thomas, the Ninth Circuit addressed its ability to hear a pre-enforcement
action which alleged that Alaska’s housing law, which prohibited landlords
from discriminating against couples based on marital status, violated the
landlords’ First Amendment rights. Id. The Thomas court found that
“neither the mere existence of a proscriptive statute nor a generalized threat
of prosecution satisfies the ‘case or controversy’ requirement.” Id. at 1139.
Instead, a party may establish standing if she shows she suffered a “genuine
threat of imminent prosecution.” Id. (quoting San Diego Cty. Gun Rights
Comm’n v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)). A “genuine threat of
imminent prosecution” exists if a party establishes a concrete plan to violate
the law, the authorities intend to prosecute the party, and there is a history
of past prosecution or enforcement. Id. (citing San Diego Cty. Gun Rights
Comm’n, 98 F.3d at 1126-27). A party, thus, need not suffer arrest or actual
prosecution before challenging a law. Susan B. Anthony List v. Dreihaus, 134
S. Ct. 2334, 2342 (2014); see also MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 128-29 (2007) (“[W]here threatened action by government is concerned,
we do not require a plaintiff to expose himself to liability before bringing
suit to challenge the basis for the threat.”).
¶16 Although Appellants have not yet refused services to a same-
sex couple, we find their claims are justiciable.7 Here, Appellants have a
concrete plan to violate Section 18-4(B) by refusing to create “custom-
made” announcements and invitations for same-sex weddings and by
posting a statement about their commitment to their religious beliefs, which
7 At the time Appellants filed their complaint they had not yet
received a request to provide services for a same-sex wedding. After they
filed their complaint, however, they received such a request, though both
the court and Appellants agreed the request was likely in retaliation for
Appellants’ lawsuit. Appellants did not respond to the inquiry.
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includes refusing to create design-on-request merchandise for same-sex
weddings. Additionally, Phoenix acknowledges that Appellants would
violate Section 18-4(B) if they posted their proposed statement. Moreover,
unlike Thomas, where the parties brought a pre-enforcement challenge to a
statute that had been in effect for over twenty years, but had never been
enforced, here, Section 18-4(B) has only been in effect since 2013 and
Phoenix has received and investigated complaints arising from the
ordinance. Appellants’ concrete plan to refuse to provide services for same-
sex weddings, Phoenix’s likelihood of prosecution, and the history of
enforcement, although brief, is sufficient to confer standing onto
Appellants.
II. Standard of Review
¶17 Summary judgment is proper if there is no genuine dispute as
to any material fact, and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 305
(1990). We review the grant of summary judgment de novo, and view the
evidence in the light most favorable to the party opposing the motion.8
Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395
Pension Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002).
¶18 Appellants appear to have raised both facial and as-applied
challenges to Section 18-4(B). Generally, to succeed on a facial challenge a
party “must establish that no set of circumstances exists under which the
[law] would be valid.” State v. Seyrafi, 201 Ariz. 147, 153, ¶ 28 (App. 2001)
(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). This heavy
burden lightens, however, if a party raises a facial challenge which
implicates First Amendment rights. Boehler, 228 at 35, ¶ 5. In a First
Amendment challenge we consider whether the application of that law “as
a whole prohibits a ‘substantial’ amount of protected speech in relation to
its many legitimate applications.” Virginia v. Hicks, 539 U.S. 113, 124 (2003).
Even if a law burdens a substantial amount of free speech, we will not
prohibit its enforcement if the law “reflects ‘legitimate state interests in
8 We recognize the standard of review for a preliminary injunction is
different from that of a summary judgment. See Planned Parenthood Ariz.,
Inc. v. Am. Ass’n of Pro-Life Obstetricians & Gynecologists, 227 Ariz. 262, 268,
¶ 9 (App. 2011). We need not address Appellants’ appeal from the superior
court’s preliminary injunction ruling because we find Appellants failed to
establish that they are entitled to relief pursuant to a de novo review. It
follows that Appellants would fail to establish they are entitled to
preliminary injunctive relief pursuant to an abuse of discretion review.
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maintaining comprehensive control over harmful, constitutionally
unprotected conduct.’” Id. at 119 (quoting Broadrick v. Oklahoma, 413 U.S.
601, 615 (1973)).
¶19 Here, we need not distinguish between Appellants’ facial and
as-applied challenge because it has no bearing on the ultimate outcome of
the case. See Isaacson v. Horne, 716 F.3d 1213, 1230 (9th Cir. 2013) (finding
the “precise characterization of the Physicians’ complaint . . . has little
bearing on the resolution of the legal question”); see also Citizens United v.
Fed. Election Comm’n, 588 U.S. 310, 331 (2010) (noting the distinction
between facial and as-applied challenges is not well defined). Although
Appellants are subject to a heavier burden for their facial claims, the
difference is irrelevant because, as discussed below, Appellants fail to
succeed on both their as-applied and facial challenges.
III. Free Speech
¶20 Appellants argue Section 18-4(B) impermissibly burdens their
freedom of speech by forcing them to create custom-made goods for same-
sex weddings and by prohibiting them from posting a statement that
describes their religious objection to providing stationery and other services
for same-sex weddings. Appellants attempt to distinguish their refusal to
create custom-made work for same-sex weddings—which they argue is a
lawful exercise of their freedom of speech and religion—from the refusal to
serve a customer based on the customer’s sexual orientation. We are
unpersuaded by Appellants’ distinction. Courts have consistently found
“there is no basis for distinguishing between discrimination based on
sexual orientation and discrimination based on someone’s conduct of
publicly committing to a person of the same sex.” Gifford, 137 A.D.3d at 37(quoting Elane Photography, LLC, 309 P.3d at 62, ¶ 18). Further, the Supreme
Court disfavors the conduct/status distinction that Appellants advocate.
See, e.g., Obergefell, 135 S. Ct. at 2604 (finding discrimination based on sexual
orientation deprives individuals of their fundamental right to marry the
person of their choice); Lawrence, 539 U.S. at 575 (by criminalizing same-sex
sodomy the state essentially discriminated against gay men); Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (noting “a tax on
wearing yarmulkes is a tax on Jews”).
¶21 In support, Appellants rely on Coleman v. City of Mesa, 230
Ariz. 352 (2012), to argue that custom-made works for weddings and the
stationery business constitute pure speech, and thus Section 18-4(B) is only
constitutional if it survives strict scrutiny. In Coleman, the Arizona Supreme
Court held that the process of tattooing, as well as the associated business
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of tattooing, constituted pure speech, and was entitled to First Amendment
protections. Id. at 360, ¶ 31. Notably, the court did not address whether
Mesa’s denial of a permit to operate a tattoo parlor violated the business
owners’ free speech rights. Id. at 361, ¶ 36. Moreover, Coleman did not
address the dichotomy between the speech of the artist and the speech of
the patron choosing the message to be applied, and we do not read Coleman
to approve using the First Amendment as a shield to protect a business
owner’s decision to discriminate against customers based on sexual
orientation.
¶22 Whether we agree with Appellants that in certain
hypothetical circumstances the operation of a stationery store, as well as the
creation of design-on-request wedding-related merchandise, may
constitute pure speech is irrelevant, because these hypotheticals are not at
issue in this case. Instead, our inquiry is whether Section 18-4(B), which
requires that Appellants provide equal services to customers regardless of
sexual orientation, infringes their First Amendment rights, not whether
Appellants have a free speech right to operate their stationery store. Thus,
Appellants reliance on Coleman is misplaced.
¶23 The Arizona Constitution guarantees that “[e]very person
may freely speak, write, and publish on all subjects, being responsible for
the abuse of that right.” Ariz. Const. art. II, § 6. Appellants assert that the
Arizona Constitution provides broader free speech protections than the
United States Constitution. Even assuming this to be true, Appellants do
not explain how, in this case, our analysis under Arizona’s free speech
clause would differ from our analysis under federal free speech
jurisprudence. Thus, we analyze Appellants’ free speech claim pursuant to
federal law. See State v. Stummer, 219 Ariz. 137, 142, ¶ 16 (App. 2008)
(applying federal free speech jurisprudence because courts have had
limited opportunities to develop Arizona’s free speech clause).
¶24 Appellants argue Section 18-4(B) compels them to speak in
favor of same-sex marriages. We disagree. Although Section 18-4(B) may
have an incidental impact on speech, its main purpose is to prohibit
discrimination, and thus Section 18-4(B) regulates conduct, not speech.
Because Section 18-4(B) regulates conduct, we find the Court’s analysis and
holding in Rumsfeld v. Forum for Acad. & Inst’l Rights, Inc., 547 U.S. 47 (2006),
to be most applicable to the issue here. In Rumsfeld, the Supreme Court
upheld the constitutionality of the Solomon Amendment, which required
that institutions seeking federal funding must allow military recruiters the
same access to students as other employers. Id. at 54. The Forum for
Academic and Institutional Rights, Inc. (“FAIR”), an association of law
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schools and law faculties, sought to bar the military’s presence on campus
because it opposed the military’s policy of forbidding individuals from
joining the Armed Forces if they “engaged in homosexual acts,” identified
as “homosexual,” or “married a person of the same sex.” Id. at 52 n.1. FAIR
argued that the Solomon Amendment violated its First Amendment right
of free speech and freedom of association by forcing the schools to allow
military recruiters on campus. Id. at 52-53. The Supreme Court rejected
FAIR’s argument, finding the Solomon Amendment did not limit what
schools could say, but rather what they could do. Id. at 60. The Supreme
Court recognized that while in some circumstances the Solomon
Amendment may require the schools to speak, such as by sending out e-
mails notifying students about the military recruiters’ presence, this speech
was merely incidental to the properly mandated conduct. Id. at 61-62.
¶25 We find Rumsfeld controlling in this case. Here, the primary
purpose of Section 18-4(B) is to prohibit places of public accommodation
from discriminating based on certain protected classes, i.e., sexual
orientation, not to compel speech. See Elane Photography, LLC, 309 P.3d at
64, ¶ 27 (finding New Mexico Human Rights Act “only mandates that if
Elane Photography operates a business as a public accommodation, it
cannot discriminate against potential clients based on their sexual
orientation,” but does not compel speech). Like Rumsfeld, Section 18-4(B)
requires that places of public accommodation provide equal services if they
want to operate their business.9 While such a requirement may impact
speech, such as prohibiting places of public accommodation from posting
signs that discriminate against customers, this impact is incidental to
properly regulated conduct.
¶26 Appellants try to distinguish Rumsfeld by relying on Coleman’s
holding that tattoos, and the business of tattooing, are pure speech, and by
citing dicta in the Colorado Court of Appeals’ decision in Masterpiece
Cakeshop that “a wedding cake, in some circumstances, may convey a
particularized message celebrating same-sex marriage, and in such cases,
First Amendment speech protections may be implicated.” 370 P.3d at 288,
¶ 71. We are unpersuaded by this argument. We do not doubt that
“words” are generally considered pure speech. Or that, in some instances,
9 To the extent Appellants argue that Section 18-4(B) imposes
unconstitutional conditions, this argument fails. To find an
unconstitutional condition we must first find the waiver of a constitutional
right. See Niehaus v. Huppenthal, 233 Ariz. 195, 202, ¶ 23 (App. 2013). Here,
there is no such waiver.
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Opinion of the Court
an ordinance may infringe a stationery store’s First Amendment right, if for
example, like Coleman, the ordinance completely bars the store’s ability to
create stationery or to operate its business. Nor do we doubt that a law
prohibiting a baker from writing certain words on a cake may implicate the
First Amendment. None of these hypothetical First Amendment violations
are currently before us, and they do not affect the outcome of this case. The
case before us is one of a blanket refusal of service to the LGBTQ
community and not a First Amendment challenge to a specific message
requested by a specific customer.
¶27 Simply stated, if Appellants, as an economic entity, want to
operate their for-profit business as a public accommodation, they cannot
discriminate against potential patrons based on sexual orientation. It bears
repeating that Section 18-4(B) regulates conduct, not speech. Accordingly,
the conduct at issue is not the creation of words or images but the conduct
of selling or refusing to sell merchandise—either pre-fabricated or designed
to order—equally to same-sex and opposite-sex couples. This conduct,
even though it may incidentally impact speech, is not speech. Further,
allowing a vendor who provides goods and services for marriages and
weddings 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.” Masterpiece Cakeshop, Ltd., slip op. at 10.
¶28 Although Section 18-4(B) regulates conduct, this is not the end
our inquiry. Next, we must determine whether the conduct regulated by
Section 18-4(B) is inherently expressive.10 Rumsfeld, 547 U.S. at 65. Conduct
is entitled to full First Amendment protections if the “speaker” intended to
convey a particularized message by the conduct and if, given the
10 At oral argument, Appellants primarily relied on Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995), to argue that
forcing them to provide services for same-sex weddings violated their First
Amendment right to free speech. Appellants’ reliance on Hurley is
misplaced. In Hurley, the United States Supreme Court found a parade was
expressive conduct and that forcing an organization to include a gay,
lesbian and bisexual group would alter the message of that expressive
conduct. Id. at 573. As explained throughout this opinion, Appellants’ act
of creating stationery and wedding-related goods is not expressive conduct.
Accordingly, the fact that Section 18-4(B) requires Appellants to provide the
same services for same-sex weddings as opposite-sex weddings does not
implicate their First Amendment rights.
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BRUSH & NIB, et al. v. PHOENIX
Opinion of the Court
surrounding circumstances, there was a strong likelihood that the speaker’s
message would be understood by those who viewed it. Spence v.
Washington, 418 U.S. 405, 410-11 (1974). Like many similar cases decided in
other jurisdictions, we find Appellants’ act of creating design-to-order
wedding announcements, invitations, and the like is not inherently
expressive. See Elane Photography, LLC, 309 P.3d at 68, ¶ 41 (“While
photography may be expressive, the operation of a photography business
is not.”); Arlene’s Flowers, Inc., 389 P.3d at 557 (finding the creation of floral
arrangements is not inherently expressive); Masterpiece Cakeshop, Inc., 370
P.3d at 286, ¶ 62 (concluding “the act of designing and selling a wedding
cake to all customers free of discrimination does not convey a celebratory
message about same-sex weddings likely to be understood by those who
view it”); Gifford, 137 A.D.3d at 42 (finding “there is no real likelihood that
the Giffords would be perceived as endorsing the values or lifestyle of the
individuals renting their facilities as opposed to merely complying with
anti-discrimination laws”).
¶29 The mere fact that Section 18-4(B) requires Appellants to
comply with the law does not render their creation of design-to-order
merchandise for same-sex weddings expressive conduct. The items
Appellants would produce for a same-sex or opposite-sex wedding would
likely be indistinguishable to the public. Take for instance an invitation to
the marriage of Pat and Pat (whether created for Patrick and Patrick, or
Patrick and Patricia), or Alex and Alex (whether created for Alexander and
Alexander, or Alexander and Alexa). This invitation would not differ in
creative expression. Further, it is unlikely that a general observer would
attribute a company’s product or offer of services, in compliance with the
law, as indicative of the company’s speech or personal beliefs. See Rumsfeld,
547 U.S. at 65 (finding observers can appreciate the difference between
sponsored speech and speech which is permitted because it is required by
law). The operation of a stationery store—including the design and sale of
customized wedding event merchandise—is not expressive conduct, and
thus, is not entitled to First Amendment free speech protections.
¶30 The law has long recognized a state’s authority to “create
rights of public access on behalf of its citizens.” Roberts v. U.S. Jaycees, 468
U.S. 609, 625 (1984) (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74(1980)). It follows that a state may prohibit businesses from posting
discriminatory signs. See Rumsfeld, 547 U.S. at 62 (finding if Congress
prohibits employment-based racial discrimination, then states can require
employers to remove “White Applicants Only” signs as a proper restriction
on conduct not speech); accord Sorrell v. IMS Health Inc., 564 U.S. 552, 567
(2011); Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014). See also R.A.V. v.
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BRUSH & NIB, et al. v. PHOENIX
Opinion of the Court
City of St. Paul, 505 U.S. 377, 389 (1992) (“[W]ords can in some circumstances
violate laws directed not against speech but against conduct.”). Thus,
“[p]osting language on a website telling potential customers that a business
will discriminate based on sexual orientation is part of the act of sexual
orientation discrimination itself; as conduct carried out through language,
[and] this act is not protected by the First Amendment.” Telescope Media
Grp., 271 F.Supp.3d at 1112 (citing Rumsfeld, 547 U.S. at 62); see also
Masterpiece Cakeshop, Ltd., slip op. at 12 (noting that a baker interposing a
sincere religious objection to providing a wedding cake for a gay couple
was entitled to a neutral and respectful consideration of his claim, but
disapproving of the baker or other businesses posting signs saying “no
goods or services will be sold if they will be used for gay marriages,”
observing such would “impose a serious stigma on gay persons.”).
¶31 Although Appellants are prohibited from posting
discriminatory statements about their intent to refuse services for same-sex
weddings, they may post a statement endorsing their belief that marriage
is between a man and a woman and may post a disclaimer explaining that,
notwithstanding that belief, Section 18-4(B) requires them to provide goods
and services to everyone regardless of sexual orientation. Or they may post
a disclaimer that the act of selling their goods and services to same-sex
couples does not constitute an endorsement of their customers’ exercise of
their constitutional right to marry or any other activities. See Hurley, 515
U.S. at 576-77 (noting, in some circumstances, an individual can distance
himself from expressive conduct by providing disclaimers that he does not
identify with the speaker’s viewpoint).
¶32 Appellants may have to change their proposed posting to
ensure that they comply with Section 18-4(B). However, “an incidental
burden on speech is no greater than is essential, and therefore is permissible
. . . so long as the neutral regulation promotes a substantial government
interest that would be achieved less effectively absent the regulation.”
Rumsfeld, 547 U.S. at 67 (quoting United States v. Albertini, 472 U.S. 675, 689
(1985)). Section 18-4(B) satisfies this requirement. Antidiscrimination laws,
like Section 18-4(B), are content and viewpoint neutral. See Hurley, 515 U.S.
at 572 (finding Massachusetts’ antidiscrimination statute, which is similar
to Section 18-4(B), “does not, on its face, target speech or discriminate on
the basis of its content, the focal point of its prohibition being rather on the
act of discriminating against individuals in the provision of publicly
available goods, privileges, and services on the proscribed grounds”); see
also Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 801 (9th Cir. 2011)
(“As the Supreme Court has made clear, antidiscrimination laws intended
to ensure equal access to the benefits of society serve goals ‘unrelated to the
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BRUSH & NIB, et al. v. PHOENIX
Opinion of the Court
suppression of expression’ and are neutral as to both content and
viewpoint.” (quoting Jaycees, 468 U.S. at 623-24)). Further, Phoenix clearly
has a substantial interest in discouraging discrimination in places of public
accommodation. The way to effectively accomplish this goal is to explicitly
prohibit places of public accommodation from discriminating. While it is
imaginable that there may be other ways to achieve this goal, that does not
render Section 18-4(B) unconstitutional.11
IV. Expressive Association
¶33 Appellants additionally argue Section 18-4(B) compels
expressive association. Concurrent with the First Amendment’s right to
free speech is the “right of expressive association.” Rumsfeld, 547 U.S. at 68
(citing Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000)). The right to
associate, or not associate, “is crucial in preventing the majority from
imposing its views on groups that would rather express other, perhaps
unpopular, ideas.” Dale, 530 U.S. at 647-48 (citing Jaycees, 468 U.S. at 622).
Thus, “implicit in the right to engage in activities protected by the First
Amendment [is] a corresponding right to associate with others in pursuit
of a wide variety of political, social, economic, educational, religious, and
cultural ends.” IDK, Inc. v. Clark Cty., 836 F.2d 1185, 1194 (9th Cir. 1988)
(citing Jaycees, 468 U.S. at 622). The right to associate, however, is not
absolute and “may be curtailed if necessary to further a significant
11 Even assuming Section 18-4(B) directly regulates speech, it still
survives constitutional scrutiny. Laws which are content and viewpoint
neutral are subject to intermediate scrutiny. See State ex rel. Napolitano v.
Gravano, 204 Ariz. 106, 112, ¶ 19 (App. 2002) (“If a regulation serves
purposes unrelated to the content of the expression, it is neutral, even if it
incidentally affects some speakers or messages but not others.” (citing Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Thus, to be constitutional,
under this test, Section 18-4(B) needs only to further a substantial
government interest unrelated to the suppression of free speech. See United
States v. O’Brien, 391 U.S. 367, 377 (1968). We have previously found that
antidiscrimination statutes are content and viewpoint neutral and
unrelated to the suppression of speech. See Hurley, 515 U.S. at 572; accord
Alpha Delta Chi-Delta Chapter, 648 F.3d at 801. Accordingly, Section 18-4(B),
as an antidiscrimination ordinance which regulates the conduct of
providing services in a place of public accommodation, is content and
viewpoint neutral. Moreover, as explained throughout this opinion
Phoenix has a substantial, if not compelling, interest in eradicating
discrimination based on sexual orientation.
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Opinion of the Court
governmental interest like eliminating . . . public evils.” 3613 Ltd. v. Dep’t
of Liquor Licenses & Control, 194 Ariz. 178, 186, ¶ 36 (App. 1999) (quoting
Jaycees, 468 U.S. at 622).
¶34 Although the First Amendment “fully protects expression
about philosophical, social, artistic, economic, literary, ethical, and other
topics . . . , it does not protect every communication or every association
that touches these topics.” IDK, Inc., 836 F.2d at 1194 (citing Abood v. Detroit
Bd. of Educ., 431 U.S. 209, 231 (1977)). Importantly, a state does not lose its
ability to regulate commercial activity merely because the activity has a
speech component. Id. A law, however, will be found to violate the right
to “expressive association” if it requires the inclusion of an unwanted
member, and that inclusion would significantly affect the group’s
association. Dale, 530 U.S. at 648-50.
¶35 We are unpersuaded by Appellants’ argument that Section
18-4(B) infringes their freedom of association by requiring that they provide
equal services to same-sex couples. Appellants operate an economic entity
and a place of public accommodation; as such, they are prohibited from
discriminating against customers based on a protected class. Further,
although Appellants argue they created Brush & Nib pursuant to their
religious beliefs, this alone does not bestow on Appellants the unfettered
right of expressive association in their business. We do not dispute that
some aspects of Appellants’ operation of Brush & Nib may implicate speech
in some regard, but the primary purpose of Brush & Nib is not to convey a
particular message but rather to engage in commercial sales activity. Thus,
Appellants’ operation of Brush & Nib is not the type of expressive
association that the First Amendment is intended to protect. See IDK, Inc.,
836 F.2d at 1195 (finding an association is not fully protected by the First
Amendment if its “activities are not predominately of the type protected by
the First Amendment” (quoting Jaycees, 468 U.S. at 635, (O’Connor, J.,
concurring in part)). Section 18-4(B)’s requirement that Appellants provide
equal goods and services does not infringe their primary goal of operating
a business; if anything, such mandate is more aligned with their commercial
interests by requiring services be provided to a broader customer base.
¶36 Even assuming, arguendo, that Appellants’ business
constitutes an expressive association, Section 18-4(B) remains constitutional
in scope and application. The right to associate may permissibly be
infringed if the regulation is adopted to “serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms.” Fraternal
Order of Eagles, Inc., Tucson Aerie No. 180 v. City of Tucson, 168 Ariz. 598, 602
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Opinion of the Court
(App. 1991) (quoting Jaycees, 468 U.S. at 623). We have previously found
that eliminating discrimination constitutes a compelling interest. See
Jaycees, 468 U.S. at 626 (“Assuring women equal access to such goods,
privileges, and advantages clearly furthers compelling state interests.”).
Further we have found that antidiscrimination ordinances are not aimed at
the suppression of speech, but at the elimination of discriminatory conduct.
Id. at 625; accord Telescope Media Grp., 271 F.Supp.3d at 1112. Appellants’
compliance with Section 18-4(B) does not hinder their freedom to associate;
as previously noted, Appellants remain free to disclaim and/or post their
belief that their religion only recognizes marriage between one man and
one woman. That said, however, Appellants cannot deny access to their
goods and services based on potential customers’ sexual orientation.
V. Overbroad and Vague
¶37 Appellants argue Section 18-4(B) is both overbroad and vague
because it is unclear which actions would violate Section 18-4(B)(3), and
because the ordinance applies to a substantial amount of protected speech.
While certain words or phrases in Section 18-4(B), in isolation, may appear
to be overbroad or vague, that does not render the ordinance
unconstitutional. See State v. Baldwin, 184 Ariz. 267, 270 (App. 1995),
corrected (Jan. 10, 1996) (finding we strive to give statutes a constitutional
construction, and thus, shall give a limiting construction, where
appropriate, to cure a statute of any “constitutional infirmity”) (quoting
State v. Takacs, 169 Ariz. 392, 295 (App. 1991)).
¶38 A statute is unconstitutionally overbroad if it burdens or
punishes constitutionally protected activities. State v. Kessler, 199 Ariz. 83,
87, ¶ 15 (App. 2000) (quoting State v. Jones, 177 Ariz. 94, 99 (App. 1993)). To
determine whether a statute which regulates conduct is overly broad, we
must assess on a case-by-case basis whether the overbreadth of the statute
is real and substantial as it relates to its plainly legitimate sweep. Broadrick,
413 U.S. at 615. Thus, the mere fact that there are some impermissible
applications of the ordinance is insufficient to render the entire ordinance
overbroad. Id.; see also United States v. Williams, 553 U.S. 285, 293 (2008)
(invalidating a provision as overbroad is a “strong medicine”) (citing Los
Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)).
¶39 Section 18-4(B) does not by its terms implicate speech. Thus,
Appellants must prove that Section 18-4(B)’s overbreadth is real and
substantial, which they have failed to do. We decline to entertain
Appellants and amici’s parade of hypotheticals that, if present, could
potentially render Section 18-4(B) overbroad. Instead, we review on a case-
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Opinion of the Court
by-case basis whether the ordinance is overbroad. Here, Section 18-4(B)
properly restricts Appellants from announcing they will discriminate
against customers based on sexual orientation. As previously mentioned,
Appellants are free to proclaim their religious beliefs, but must do so within
the confines of the law.
¶40 Appellants additionally argue that Section 18-4(B) is
unconstitutionally vague because it “encourage[s] arbitrary and
discriminatory enforcement.” In response, Phoenix urges that we must
construe Section 18-4(B) as objective because it prohibits statements which
indicate that a person would be unwelcome as opposed to the subjective
interpretation that Section 18-4(B)(3) prohibits statements that make a
person feel unwelcome.
¶41 A statute is unconstitutionally vague if it “fails to give a
person of average intelligence reasonable notice of what behavior is
prohibited or permits arbitrary and discriminatory enforcement.” Kessler,
199 Ariz. at 87, ¶ 15 (quoting State v. Steiger, 162 Ariz. 138, 141-42 (App.
1989)). A statute, however, need not define proscribed conduct with
absolute precision, but it must adequately warn an individual of the
proscribed conduct. State v. Burke, 238 Ariz. 322, 325-26, ¶ 6 (App. 2015)
(quoting State v. McMahon, 201 Ariz. 548, 551, ¶ 8 (App. 2002)); see also
Baldwin, 184 Ariz. at 270 (finding undefined terms susceptible to multiple
meanings does not necessarily render a statute unconstitutionally vague).
¶42 Section 18-4(B)(3) provides that:
It is unlawful for any owner . . . of any place of 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 . . . sexual
orientation . . . or that any person, because of . . . sexual orientation
. . . would be unwelcome, objectionable, unacceptable, undesirable
or not solicited.
(Emphasis added.)
¶43 We are unable to interpret Section 18-4(B)(3)’s use of the
words “unwelcome,” “objectionable,” “unacceptable,” and “undesirable”
in a way that would render Section 18-4(B)(3) constitutional. The presence
of one invalid prohibition, however, does not invalidate all of Section 18-
4(B)(3). See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 110, ¶ 12 (App.
2001) (“We need not invalidate the entire Ordinance if the invalid portion
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Opinion of the Court
can be severed from the remaining valid portions of the Ordinance.”) (citing
Randolph v. Groscost, 195 Ariz. 423, 426-27, ¶ 13 (1999)). Instead, we consider
whether the invalid portion of Section 18-4(B)(3) can be severed from the
remainder of the ordinance and assess whether “the valid portion,
considered separately, can operate independently and is enforceable and
workable.” Randolph, 195 Ariz. at 427, ¶ 15.
¶44 Here, striking the second half of Section 18-4(B)(3)—which
bans an owner of a place of public accommodation from making a person
feel “unwelcome,” “objectionable,” “unacceptable,” and “undesirable”
based on sexual orientation—does not render the remainder of the
ordinance unenforceable or unworkable. Moreover, removing this clause
from Section 18-4(B)(3) does not “produce a result so irrational or absurd as
to compel the conclusion that an informed [drafter] would not have
adopted one portion without the other.” Randolph, 195 Ariz. at 427, ¶ 15.
The remainder of Section 18-4(B)(3) operates independently and is
enforceable as intended. Given this construction, we need not find Section
18-4(B) unconstitutional; instead we construe the ordinance as lawfully
prohibiting discriminatory speech, but allowing Appellants to disclaim
personal support for same-sex marriage and to proclaim their religious
beliefs. See LaFaro v. Cahill, 203 Ariz. 482, 488, ¶ 21 (App. 2002) (“We
attempt to construe statutes with ‘a reasonable and constitutional meaning’
whenever possible in order to remove potential doubts regarding the
statute’s viability.”) (quoting McGovern v. McGovern, 201 Ariz. 172, 178, ¶
20 (App. 2001)).
¶45 We therefore sever the invalid portion of Section 18-4(B)(3),
but leave the remainder of the ordinance intact.12
VI. Free Exercise of Religion
¶46 Appellants argue Section 18-4(B) burdens their free exercise
of religion under state law by requiring them to create “custom artwork to
12 We strike the following language from Section 18-4(B)(3), “or that
any person, because of race, color, religion, sex, national origin, marital
status, sexual orientation, gender identity or expression, or disability would
be unwelcome, objectionable, unacceptable, undesirable or not solicited.”
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Opinion of the Court
celebrate and promote . . . marriage[s] outside of God’s design for marriage
as an institution between one man and one woman.”13
¶47 FERA protects an individual’s exercise of religion from undue
governmental interference. A.R.S. § 41-1493.01 (2017); see also State v.
Hardesty, 222 Ariz. 363, 365, ¶ 8 (2009). Under the statute, the “government
shall not substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability” unless the rule is both
“[i]n furtherance of a compelling government interest [and is] [t]he least
restrictive means of furthering that compelling governmental interest.”
A.R.S. § 41-1493.01(B)-(C). Pursuant to FERA, a party must establish that
her act or refusal to act is motivated by her religious belief, that the religious
belief is sincerely held, and that the governmental action substantially
burdens the exercise of religious beliefs. Hardesty, 222 Ariz. at 366, ¶ 10.
Once a party establishes those elements, the burden shifts to the
government to prove the action “furthers a compelling governmental
interest” and is “[t]he least restrictive means of furthering that compelling
governmental interest.” Id. (citing A.R.S. § 41-1493.01(C)). What constitutes
the “least restrictive means” depends on the compelling interest at stake.
Id. at 368, ¶ 19. FERA parallels the Federal Religious Freedom Restoration
Act of 1993; as such we look to federal law as instructive on this issue. See
Hardesty, 222 Ariz. at 365, ¶ 8.
¶48 On appeal, Phoenix does not dispute that Appellants’ desire
to refuse to create wedding-related merchandise for same-sex weddings
and to post an explanatory statement is motivated by their religious beliefs,
nor does Phoenix dispute the sincerity of Appellants’ beliefs. Thus, we
13 Brush & Nib does not explicitly argue on appeal that §18-4(B)
violates the Free Exercise Clause of the First Amendment; however, even
assuming such an argument was advanced, Phoenix’s obligation is to not
enact, interpret or apply its laws or regulations based on hostility to a
religion or religious viewpoint. There is no evidence in the record to
support any suggestion that Phoenix’s adoption of §18-4(B), or its
interpretation as it relates to Brush & Nib, has been anything other than
neutral toward and respectful of their sincerely-expressed religious beliefs.
See Masterpiece Cakeshop, Ltd., slip op. at 16-18. Further, as noted by Justice
Kagan in her concurring opinion in Masterpiece Cakeshop, Ltd., “As this
Court has long held, and reaffirms today, a vendor cannot escape a public
accommodations law because his religion disapproves selling a product to
a group of customers, whether defined by sexual orientation, race, sex, or
other protected trait. A vendor can choose the product he sells, but not the
customers he serves—no matter the reason.” (Internal citation omitted.)
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Opinion of the Court
focus our inquiry on Appellants’ burden to demonstrate that Section 18-
4(B) substantially burdens their exercise of religious beliefs. A substantial
burden on the free exercise of religion requires more than a government
action which merely “decreases the spirituality, the fervor, or the
satisfaction with which a believer practices his religion,” and instead is akin
to the government coercing an individual to act contrary to her religious
beliefs or penalizing faith. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,
1063 (9th Cir. 2008). To determine whether Section 18-4(B) places a
substantial burden on religion we analyze whether the ordinance will force
Appellants “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 whether the regulation
“affirmatively compels [Appellants], under threat of criminal sanction, to
perform acts undeniably at odds with fundamental tenets of their religious
beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).
¶49 Here, Appellants have failed to prove that Section 18-4(B)
substantially burdens their religious beliefs by requiring that they provide
equal goods and services to same-sex couples. Appellants are not penalized
for expressing their belief that their religion only recognizes the marriage
of opposite-sex couples. Nor are Appellants penalized for refusing to create
wedding-related merchandise as long as they equally refuse similar
services to opposite-sex couples. Section 18-4(B) merely requires that, by
operating a place of public accommodation, Appellants provide equal
goods and services to customers regardless of sexual orientation.
Appellants are free to discontinue selling custom wedding-related
merchandise and maintain the operation of Brush & Nib for its other
business operations. What Appellants cannot do is use their religion as a
shield to discriminate against potential customers. Although providing the
same goods and services to same-sex couples might “decrease . . . the
satisfaction” with which Appellants’ practice their religion this does not, a
fortiori, make their compliance with Section 18-4(B) a substantial burden to
their religion. See Navajo Nation, 535 F.3d at 1063.
¶50 Even if Appellants had met their burden of proof to
demonstrate that Section 18-4(B) places a substantial burden on their
religious exercise, Section 18-4(B) is still constitutional because Phoenix has
a compelling interest in preventing discrimination, and has done so here
through the least restrictive means. When faced with similar contentions,
other jurisdictions have overwhelmingly concluded that the government
has a compelling interest in eradicating discrimination. See Arlene’s Flowers,
Inc., 389 P.3d at 565-66, ¶¶ 74-75 (compiling cases where the state’s
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Opinion of the Court
compelling interest in eradicating discrimination survived strict scrutiny).
It goes without saying that providing equal access to places of public
accommodation does “not simply guarantee access to goods or services,”
but “serve[s] a broader societal purpose: eradicating barriers to the equal
treatment of all citizens in the commercial marketplace.” Id. at 566, ¶ 77.
Appellants, however, argue that Phoenix does not suffer from pervasive
sexual orientation discrimination, as evident from the historic lack of
lawsuits to date, and that Phoenix could have used other means to achieve
its goal, such as posting lists of businesses that will provide services for
same-sex weddings. Other courts have addressed this “go elsewhere”
argument and found it unpersuasive. We agree with those courts. See
Arlene’s Flowers, Inc., 389 P.3d at 566, ¶ 77 (rejecting Arlene’s “go elsewhere”
argument and finding that the “case is no more about access to flowers than
civil rights cases in the 1960s were about access to sandwiches”).
Prohibiting places of public accommodation from discriminating against
customers is not just about ensuring equal access, but about eradicating the
construction of a second-class citizenship and diminishing humiliation and
social stigma. The least restrictive way to eliminate discrimination in places
of public accommodation is to expressly prohibit such places from
discriminating.
VII. Equal Protection
¶51 Appellants’ final argument is that Section 18-4(B) violates
their right to equal protection under state law because Section 18-4(B)
“favor[s] artists who support same-sex marriage and punish[es] those who
oppose it.” We disagree.
¶52 Arizona’s equal protection clause provides that “[n]o law
shall be enacted granting to any citizen, class of citizens, or corporation
other than municipal, privileges or immunities which, upon the same
terms, shall not equally belong to all citizens or corporations.” Ariz. Const.
art. II, § 13. In interpreting Arizona’s equal protection clause, we use the
same standard as the federal equivalent. Coleman, 230 Ariz. at 361, ¶ 39. If
a law discriminates against a suspect class or denies fundamental rights to
one group it must meet a higher level of scrutiny to be constitutional. San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973). A law which does
not infringe on any fundamental rights, however, is subject to rational basis
review, and is constitutional if it “relate[s] to a legitimate government
purpose.” State v. Panos, 239 Ariz. 116, 118-19, ¶ 8 (App. 2016) (quoting
State v. Lowery, 230 Ariz. 536, 541, ¶ 13 (App. 2012)).
25
BRUSH & NIB, et al. v. PHOENIX
Opinion of the Court
¶53 Appellants have not alleged they are members of a suspect
class; instead, they argue they are treated differently than other similarly
situated businesses because “[a]rtists who support same-sex marriage can
operate their businesses in accordance with their beliefs” whereas
Appellants purportedly cannot. Even assuming this to be true, it does not
render Section 18-4(B) unconstitutional. Section 18-4(B) applies to all places
of public accommodation and all business owners equally, regardless of
their beliefs. Contrary to Appellants assertions, Section 18-4(B) does not
infringe their fundamental rights by requiring that they provide equal
goods and services to all customers regardless of sexual orientation. As
such, the provisions of Section 18-4(B) must only be rationally related to a
legitimate governmental purpose. As previously demonstrated, Phoenix
has a legitimate governmental purpose in curtailing discriminatory
practices, and prohibiting businesses from sexual orientation
discrimination is rationally related to that purpose. Thus, Section 18-4(B)
does not violate Appellants’ equal protection.
VIII. Attorneys’ Fees
¶54 Both parties request attorneys’ fees on appeal pursuant to
A.R.S. § 12-342 (2016) and A.R.S. § 12-348 (Supp. 2017). In the exercise of
our discretion, we decline both requests, but award Phoenix its taxable
costs, to be determined upon compliance with ARCAP 21.
CONCLUSION
¶55 We affirm as modified the superior court’s summary
judgment in favor of Phoenix.
AMY M. WOOD • Clerk of the Court
FILED: AA
26