Legislators, publisher, religious groups voice support for artistic freedom at Arizona Supreme Court

PHOENIX – Arizona state legislators, a publisher, and a variety of religious groups filed 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. In a June ruling, the Arizona Court of Appeals decided to allow Phoenix to override Duka and Koski’s artistic and religious decisions.

“As the briefs filed last week affirm, no one should 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. Joanna and Breanna are happy to design custom art for anyone; they simply object to being forced to pour their heart, soul, imagination, and talent into creating messages that violate their conscience.”

“These briefs are asking the Arizona Supreme Court to consider critical questions and provide Arizonans with needed clarity about their fundamental freedoms,” said ADF Legal Counsel Samuel Green. “Related questions have received the attention of the highest courts of multiple states and even the U.S. Supreme Court in the Masterpiece Cakeshop case. This matter warrants the Arizona Supreme Court’s attention as well.”

As the brief filed by state legislators points out, “Given the happy variety of Arizonans’ backgrounds in our state melting pot, the question posed in this case could take the following forms out [of] a myriad: May Arizona’s government require a fine art painter with a public portraiture business and who is a self-avowed feminist to create a portrait that features the denigration of women? 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].”

Other parties filing briefs asking the Arizona Supreme Court to consider Brush & Nib Studio v. City of Phoenix include the Center for Religious Expression, the Jewish Coalition for Religious Liberty, Tyndale House Publishers, and the National Center for Law & Policy.

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 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.

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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