In a refreshing and robust affirmation of free speech, the Arizona Supreme Court commenced its ruling on Brush & Nib Studio v. City of Phoenix with clarity:
The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like–minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.
With these fundamental principles in mind, today we hold that the City of Phoenix (the “City”) cannot apply its Human Relations Ordinance (the “Ordinance”) to force Joanna Duka and Breanna Koski, owners of Brush & Nib Studios, LC (“Brush & Nib”), to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs. Duka, Koski, and Brush & Nib (“Plaintiffs”) have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01.
Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record. 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.
Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow. Indeed, “[w]e can have intellectual individualism” and “rich cultural diversities . . . only at the price” of allowing others to express beliefs that we may find offensive or irrational. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641–42 (1943). This “freedom to differ is not limited to things that do not matter much . . . [t]he test of its substance is the right to differ as to things that touch the heart of the existing order.” Id. at 642.
Given this reality, the government “must not be allowed to force persons to express a message contrary to their deepest convictions.” 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 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).