Facing threat of jail time, Arizona artists ask state Supreme Court to protect their freedom

PHOENIX – Under threat of up to six months jail time, two artists asked the Arizona Supreme Court Monday to take up their challenge to a sweeping city of Phoenix criminal law that forces them to design and create custom artwork expressing messages that violate their core beliefs.

Alliance Defending Freedom attorneys representing artists Joanna Duka and Breanna Koski, owners of Brush & Nib Studio, are asking the high court to take the case because the Phoenix ordinance illegally controls artistic expression—violating the freedom of Duka and Koski to choose which messages they will convey and refrain from conveying. In a ruling last month, the Arizona Court of Appeals allowed the law to stand.

“Artists shouldn’t be forced to create artwork contrary to their core convictions, and certainly not under threat of criminal fines and jail time,” said ADF Senior Counsel Jonathan Scruggs, who argued the case before the Arizona Court of Appeals. “The government must allow artists to make their own decisions about which messages they will promote. Breanna and Joanna are happy to design custom art for all people; they simply object to being forced to pour their heart, soul, imagination, and talent into creating messages that violate their conscience.”

“The court’s decision allows the government to compel two artists who happily serve everyone to convey a message about marriage they disagree with. This contradicts basic freedoms our nation has always cherished,” Scruggs said.

Duka and Koski specialize in creating custom artwork using hand painting, hand lettering, and calligraphy to celebrate weddings and other events. The women’s religious convictions guide them in determining which messages they can and cannot promote through their custom artwork.

The city’s ordinance forces the two artists to use their artistic talents to celebrate and promote same-sex marriage in violation of their beliefs. It also bans them from publicly communicating what custom artwork they can and cannot create consistent with their faith. The law threatens up to six months in jail, $2,500 in fines, and three years of probation for each day that there is a violation.

In the pre-enforcement challenge to Phoenix City Code Section 18-4(B), a public accommodation law, ADF attorneys argue that the ordinance violates the Arizona Constitution and Arizona’s Free Exercise of Religion Act. Phoenix officials have interpreted the ordinance to force artists, like Duka and Koski, to create objectionable art, even though they decide what art they can create based on the art’s message, not the requester’s personal characteristics.

“If Joanna and Breanna politely decline to create custom artwork celebrating same-sex weddings or publish their desired statement [explaining how their religious beliefs prevent them from creating certain artwork], Phoenix will prosecute them…,” the petition ADF attorneys filed with the Arizona Supreme Court in Brush & Nib Studio v. City of Phoenix explains. “But the [Court of Appeals] upheld this application as consistent with Arizona’s free-speech and free-exercise protections. This Court should grant this petition to clarify whether public accommodation laws trump free-speech and free-exercise rights, to correct the COA’s narrow understanding of these important freedoms, and to align Arizona’s jurisprudence with recent U.S. Supreme Court decisions.”

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