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Alliance Alert

Oct 5, 2018

Phoenix Law Compelling Speech Upheld

Joanna Duka and Breanna Koski met each other at a Bible study for young adults, and soon started a creative-arts venture called Brush & Nib Studio. The two women had a passion for Christ and custom-designed art, and they wanted to share their creative talents with the world.

The idea was to create beautiful illustrated works, calligraphy, and hand-lettered artwork for milestone events, including weddings. Joanna and Breanna officially launched their Phoenix-based business studio in 2015, but soon learned the City of Phoenix had a law that threatened their small business because Phoenix uses that law to force businesses to create expressive content that celebrates same-sex marriage.

They decided to take action against the law, and their case is still ongoing.

Let’s take a look.

Joanna and Breanna will create their beautiful, hand-made designs for anyone, but there are certain messages they can’t create in good conscience. Since they both hold biblical beliefs about marriage, one of those messages is celebration for same-sex ceremonies.

In 2013, Phoenix enacted City Code Section 18.4 (B), which bans “[d]iscrimination in places of public accommodation” based on several characteristics, including sexual orientation, gender expression, and gender identity. Individuals who violate this law face heavy fines and even jail time.

Because Joanna and Breanna were concerned about running into a situation similar to Jack Phillips’s and Barronelle Stutzman’s, they decided to challenge the law with the help of Alliance Defending Freedom.

As ADF legal counsel Jonathan Scruggs puts it:

[T]hey have decided to not play Phoenix’s version of the Hunger Games, a game they can only lose and lose big. They have instead chosen an option the game maker didn’t give them: to ask a court to declare that the Phoenix law violates their freedom of speech and freedom of religious exercise.

To illustrate how broad Phoenix’s law is, ADF legal counsel James Gottry explains:

Breanna and Joanna will gladly serve individuals of any sexual orientation, but there are certain events or messages that they cannot in good conscience promote or celebrate. There are also certain messages they wish to communicate, including their religious beliefs about God’s design for marriage and how those beliefs affect their art.

But under the law, even a simple statement to this effect on Brush and Nib’s website would be deemed a violation of the law. Even quoting Matthew 19:4-5, or stating “God created marriage as a life-long union exclusively for one man and one woman,” implies that a request to celebrate a same-sex wedding would be “unwelcome . . . or not solicited.”

Joanna and Breanna’s challenge to protect their freedom of speech was being fought in Arizona courts under the shadow of the Masterpiece Cakeshop case that had yet to be decided by the U.S. Supreme Court. When the Supreme Court’s decision came down in favor of Jack Phillips, Joanna and Breanna had renewed hope they would be vindicated as well.

Yet the Arizona State Court of Appeals used Masterpiece to rule against Brush & Nib Studio just days after the Supreme Court handed down its decision. The state court asserted that the Arizona law was neutral and respectful of Joanna and Breanna’s religious beliefs in comparison with the open hostility Colorado had shown Jack Phillips.

That judgment rejected not only their religious freedom but also their freedom of speech. The three-judge panel failed to see that forcing artists to promote messages to which they are opposed was a violation of their right to free speech. Jonathan Scruggs explains:

What’s more, the Arizona appellate court actually downplayed the danger of compelling speech, saying that compelling Joanna and Breanna to write words contrary to their religious beliefs would at most “decrease … the satisfaction with which [they] practice their religion.”

That’s quite an understatement. As the U.S. Supreme Court said…compelling speech violates a “cardinal constitutional command” and would be “universally condemned” in most contexts because “[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning…” We’re a bit beyond having a bad day.

The fight is not over; Joanna and Breanna have asked the Arizona Supreme Court to hear their case. They have also recently received the backing of Arizona state legislators, a publisher, and other religious groups. The legislators, in their amicus brief, put it this way:

May Arizona’s government force a Muslim cartoonist who openly commissions his work to the public to accept a request to create a cartoon image of the Quran’s desecration? Perhaps Arizona’s government may require a Jewish sculptor for hire to create a work denigrating the Torah? … This is no parade of horribles, no hyperbole; they are permissible consequences of affirming the [Court of Appeals].
Joanna and Breanna—and others like them—deserve to have their rights protected just as the highest court in the United States protected Jack Phillips. Stay tuned to see what happens.

  • Arlene's Flowers
  • Masterpiece Cakeshop
  • free speech
  • Brush & Nib
  • Friday Feature
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