Broad support for artistic freedom at Arizona Supreme Court

PHOENIX – The Arizona attorney general joined by other states, numerous state lawmakers, various scholars, and a diverse array of business, artistic, and faith-based groups have filed friend-of-the-court briefs with the Arizona Supreme Court in support of preserving artistic and religious freedom. Specifically, the briefs support two Phoenix artists who face jail time and fines if they violate a sweeping 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, asked the high court in July to take the case because Phoenix interprets its ordinance in a way that illegally controls artistic expression and tramples religious liberty—violating the freedom of Duka and Koski to choose which messages they will convey and refrain from conveying consistent with their religious beliefs. On Nov. 20, the court agreed to take the case.

“As the briefs filed this week affirm, the government shouldn’t threaten artists with jail time and fines to force them to create art that violates their beliefs,” said ADF Senior Counsel Jonathan Scruggs, who argued the case before the Arizona Court of Appeals. “Joanna and Breanna work with all people; they just don’t promote all messages. Creative professionals should be free to create art consistent with their convictions without the threat of government punishment. Instead, the government must protect the freedom of artists to choose which messages to express through their own creations.”

“Artists don’t surrender their freedom of speech when they choose to make a living by creating custom artwork,” said ADF Legal Counsel Samuel Green. “Just because artists communicate one viewpoint doesn’t mean the government can force them to convey an opposing viewpoint that violates their core convictions. Yet that’s precisely what Phoenix is trying to do in violation of the fundamental freedoms that everyone should enjoy.”

As the brief filed by Arizona Attorney General Mark Brnovich and other state attorneys general in Brush & Nib Studio v. City of Phoenix points out, “A government simply cannot force a citizen to engage in or endorse expression…. [Phoenix] must not be allowed to force artists to create customized expressions contrary to their moral, religious, or political beliefs, even if such work is paid for by the one requesting it.” 

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.

Phoenix interprets its ordinance in a way that 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 case, a pre-enforcement challenge to Phoenix City Code Section 18-4(B), 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 when they decide what art they can create based on the art’s message, not the requester’s personal characteristics.

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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