Artists to appeals court: Halt Phoenix ordinance that punishes artistic freedom with jail time

PHOENIX – Alliance Defending Freedom attorneys filed their opening brief on appeal Wednesday that asks an Arizona appeals court to temporarily stop Phoenix from applying an ordinance to an art studio specializing in hand-painting, hand-lettering, and calligraphy for weddings and other events because the ordinance conflicts with free speech. The ordinance forces Brush & Nib Studio’s two owners, Joanna Duka and Breanna Koski, to use their artistic talents to promote same-sex wedding ceremonies and also forbids them from publicly communicating the Christian beliefs that require them to create art celebrating only marriages between one man and one woman.

ADF attorneys filed the appeal after a trial court judge declined to issue an order that would prevent the city from enforcing the ordinance against the studio or its artist-owners while their lawsuit moves forward in court.

“Artists shouldn’t be threatened with jail time just because the government doesn’t like the views they choose to express,” said ADF Legal Counsel Samuel Green. “We are asking the appeals court to reverse the trial court and protect these artists’ freedoms as their case goes forward because no artist should be forced to create art expressing messages that violate their core beliefs. In addition, the law’s requirement that artists stay quiet about how their beliefs influence their artistic decisions is unjust and unlawful censorship.”

The American Civil Liberties Union asked to file a friend-of-the-court brief at the trial court in opposition to the artistic freedom of Duka, Koski, and their studio—a position in contradiction to the ACLU’s supposed stance on artistic freedom, as stated on its website: “The answer is simple, and timeless: a free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants—or does not want—to receive or create. Once you allow the government to censor someone else, you cede to it the power to censor you, or something you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts. Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our democracy.” 

“We couldn’t agree more with the ACLU’s statement on this, but we couldn’t disagree more with the completely contradictory position they are taking with regard to Joanna and Breanna. It seems the ACLU prefers to be selective in who it thinks ought to be free and who ought to be punished for their views,” said ADF Senior Counsel Jeremy Tedesco. “Phoenix officials are playing favorites, too, and we are asking the appeals court to ensure that they respect our clients’ artistic freedom and freedom of speech for the duration of this lawsuit. It’s our hope that the city will respect it permanently for all artists, regardless of the political or religious views that they hold.”

As the opening brief filed in the Arizona Court of Appeals explains, “When commissioned artists create paintings and write words, they engage in protected speech—speech the government cannot compel or censor. This protection only increases when the government censors art motivated by religious beliefs or compels art forbidden by religious beliefs. These fundamental principles of artistic and religious freedom are at stake in this appeal.”

ADF attorneys argue that the ordinance runs afoul of Arizona’s Free Speech Clause and Free Exercise of Religion Act. Specifically, the suit, Brush & Nib Studio v. City of Phoenix, challenges Phoenix City Code Section 18.4(B), a non-discrimination ordinance which the city has construed to force artists like the owners of Brush & Nib to create objectionable art, even though they decide what art to create based on the art’s message, not the requester’s personal characteristics.

The Phoenix ordinance also prohibits businesses, including artists, from publicly communicating any message that “implies” someone would be “unwelcome” based upon the person’s sexual orientation, gender identity, or any one of a number of other characteristics, thus preventing many artists from explaining their position on marriage publicly without risking up to $2,500 fines and six months in jail for each day the artist violates the ordinance.

• Pronunciation guide: Tedesco (Teh-DESS’-koh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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