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Alliance Alert

Sep 20, 2019

The City of Phoenix Learns Free Speech Still Exists

It might have taken eight months of anxious waiting and fervent prayer, but when the Arizona Supreme Court issued a ruling in Breanna Koski and Joanna Duka’s case, the answer was a much-needed confirmation of free speech rights—not just for them, but for everyone.

Joanna and Breanna are co-owners of Brush & Nib Studios, where they use their artistic talents to paint and hand-letter beautiful designs for life’s momentous events. While they serve everyone, there are certain messages they can’t create because of their religious beliefs.

When they learned the city of Phoenix threatened to penalize them with steep fines and even jail time for applying their art consistently with their belief that marriage is between one man and one woman, Joanna and Breanna decided to challenge the city’s effort to compel their speech and expression.

And the Arizona Supreme Court stood for their right—and everyone’s right—to create freely.

Let’s take a look.

Brush & Nib Studios was created by Joanna Duka and Breanna Koski as a way to follow their life-long passion to creating art that reflects and glorifies God. As Breanna related at a press conference outside the Arizona Supreme Court:

Ever since we were little girls, Joanna and I have been encouraged to follow our dreams, pursue our passions, and treat every person we encounter with dignity and respect. One of our passions is creating art that reflects the beauty we see all around us, and it’s this passion—along with our shared faith—that brought us together to start Brush & Nib Studio. There, we create custom artwork to celebrate some of life’s most important events.

Through our artwork, we are able to create beauty in the world and reflect God’s creativity in small ways. We cannot separate our faith from our art. They are deeply interwoven. What we create stems from who we are. And who we are stems from who God is and what He’s done for us.

At the same conference, Joanna described their process in creating art:

At Brush & Nib Studio, Breanna and I create beautiful, hand-made artwork to celebrate weddings and other events. Breanna is a talented painter, and I specialize in calligraphy and hand-lettering. Breanna and I can spend hours or even days imagining, designing, and creating these custom artistic pieces. This process is very personal for us. We pour our hearts and souls into the custom artwork we create and care deeply about what that artwork expresses. With each pen and brushstroke, we seek to craft a message that is beautiful and inspiring.

The messages we convey through our art mean so much to us. Breanna and I will gladly serve everyone, but we cannot create custom artwork celebrating certain events. And the government should not control those expressive decisions.

It should be easy to see that creatives have the right to choose what messages they promote. A Muslim singer shouldn’t be forced to sing at a church Easter service. An LGBT filmmaker should not be forced to create films promoting the view that marriage is between one man and one woman. A pro-abortion photographer should not be forced memorialize the March for Life through his unique imagery.

These scenarios seem self-evident, yet the profoundly powerful First Amendment principles of free speech and free exercise of religion that undergird intuition escaped Phoenix city officials—and too many other officials around the country.

In Phoenix—just as in Minnesota—government officials have tried compelling conformity, which is every bit as ineffective as it is illegal. Until the Arizona Supreme Court’s ruling, Phoenix wielded its ordinance, City Code Section 18-4(B), in a manner that forces artists like Duka and Koski, to use their artistic talents to celebrate and promote same-sex marriage in violation of their beliefs. The city also used the ordinance to ban Joanna and Breanna from publicly communicating what custom artwork they can and cannot create consistent with their faith.

Joanna and Breanna, with the help of Alliance Defending Freedom, argued time and again in court that they serve all customers but can’t produce “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.” The owners of Brush & Nib would never turn away anyone for who they are; it’s a question of what messages and events they choose to celebrate with their custom artwork. That, however, wasn’t enough in the eyes of Phoenix, which threatened them with crushing penalties simply for following their conscience.

The Arizona Supreme Court rightly saw that as unconstitutional overreach.

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…cannot apply its Human Relations Ordinance…to force Joanna Duka and Breanna Koski…to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs.

While the city argued that Joanna and Breanna should create every custom message, the court rejected that notion.

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.

The court also described just why Breanna and Joanna’s speech needed to be protected:

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.

David French of National Review noted:

“Free speech for me, but not for thee” cannot be an American governing philosophy. Moreover, continued victories for freedom of speech could well draw lines that allow both sides of the cultural divide the space to speak and exercise their liberties without creating a false, zero-sum conflict.

After the court released its decision, ADF Senior Counsel Jonathan Scruggs praised the ruling, saying:

Joanna and Breanna work with all people; they just don’t promote all messages. They, like all creative professionals, should be free to create art consistent with their convictions without the threat of government punishment. Instead, government must protect the freedom of artists to choose which messages to express through their own creations. The court was right to find that protections for free speech and religion protect the freedom of creative professionals to choose for themselves what messages to express through their custom artwork.

Perhaps Phoenix should have been more mindful that even in the Obergefell decision legalizing same-sex marriage, the United States Supreme Court pointed out the understanding that marriage is uniquely between one man and one woman “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” Had Phoenix honored the First Amendment and what the Court said about marriage, it wouldn’t now be having to mend its ways and after losing Brush & Nib.

The decision in Brush & Nib—just like the Telescope Media ruling a few weeks before it—is an important reminder that free speech applies to all speech … not just what is popular at the time. There is certainly more work to be done, but as much as we all may differ on hot-button social issues, we should all agree that those issues are ours to debate—not the government’s to dictate.

  • religious freedom
  • free speech
  • Brush & Nib
  • Friday Feature
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