The Arizona Supreme Court announced last week it will hear the case of two Christian artists who fear for their livelihoods under a Phoenix law that could require them to violate their religious beliefs. The lawsuit is one in a wave of pre-emptive moves to protect religious liberty across the country.
Breanna Koski and Joanna Duka of the Brush & Nib stationery studio filed suit in 2016 in response to a 2013 Phoenix ordinance that made it unlawful for businesses to publicize any statement that could imply they might refuse service to someone based on sexual orientation or gender identity.
Koski and Duka worried that references to God and faith on their website could be construed as violating the ordinance, which carries potentially crippling penalties such as jail time and fines of up to $2,500 a day. The law bans them from publicly communicating their faith to their customers, for instance, by posting a sign that explains their beliefs about marriage, something pertinent to the numerous orders they receive for custom wedding invitations.
“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 Jonathan Scruggs, senior counsel for Alliance Defending Freedom, which is providing legal representation for Koski and Duka. “That is what’s at stake in this case.”
A lower court ruled against the two, and an Arizona appeals court agreed. The appellate court rejected the artists’ argument that declining to produce an item of custom art, such as a hand-lettered invitation, for a same-sex wedding is different than refusing to serve someone because of their sexual orientation.
“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,” Scruggs said.
At the time they filed their appeal, the artists had not received a request for services for a same-sex wedding. They did get such a request after the appeal was filed, the court stated, but the judges said it was likely in retaliation for the lawsuit, and the artists did not respond.
The appellate court suggested that the women post a disclaimer in their store stating that “the act of selling their goods and services to same-sex couples does not constitute an endorsement of their customers’ exercise of their constitutional right to marry or any other activities.” That idea ignores concerns about moral complicity, a principle “common to many faiths,” as the Jewish Coalition for Religious Liberty noted in an amicus brief in the case. The brief cited a ruling by Supreme Court Justice Neil Gorsuch, then an appellate judge, in the Burwell v. Hobby Lobby Stores case that protected privately held corporations from providing contraceptives and abortifacients to employees in violation of the business owners’ religious beliefs.
“All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others,” Gorsuch wrote. “For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”
ADF has filed other pre-enforcement challenges in recent years to laws that restrict religious liberty. In 2016, the legal group won a victory on behalf of an Iowa church when a federal judge ruled that the Iowa Civil Rights Commission could not censor the speech of churches. ADF also filed a pre-emptive suit in Colorado for a graphic designer challenging a nondiscrimination law that restricts free speech and freedom of religion, and that case is pending.