Two Christian artists are launching a preemptive challenge to a Phoenix, Arizona, ordinance, requiring all expressive businesses to service same-sex weddings and refrain from publicizing any beliefs that could be deemed offensive to protected classes of people.
Breanna Koski and Joanna Duka own Brush & Nib, a business that specializes in hand-painting, hand-lettering and calligraphy. The business provides wedding services ranging from invitations to all sorts of wedding day decor, along with services for many other special events. But as a result of their Christian beliefs, Koski and Duka will not accept work for same-sex weddings.
As a result, the women fear they will soon be cited by Phoenix authorities under § 18.4(B) of the city code.
The ordinance, as admitted in Koski and Duka’s motion, “bars public accommodations from discriminating on the basis of a person’s race, color, religion, sex, national origin, marital status, sexual orientation, gender identity, or disability and from making any communication implying people will be discriminated against or are objectionable because of these protected traits.”
Koski and Duka are largely fine with that language, but their motion, filed by their attorneys from Alliance Defending Freedom, says the city’s interpretation of the ordinance is very troubling.
“That basically means because our clients create art for opposite-sex wedding ceremonies, they have to do so for same-sex wedding ceremonies, so really compelling them to create artwork that is against their artistic and religious beliefs,” said Alliance Defending Freedom Senior Counsel John Scruggs, who is directly involved in this case.
Beyond that, Scruggs says the city interpretation won’t even allow expressive professionals from explaining their beliefs due to the possibility of someone in a protected class could construe the message as discrimination.
“[The ordinance] says that any business cannot issue ‘any communication that implies someone is unwelcome or objectionable or not solicited.’ If our clients wanted to express their religious beliefs about one-man, one-woman marriage, that could certainly imply that someone who is seeking a same-sex marriage is objectionable,” said Scruggs.
He says the penalties for violating the ordinance are very severe.
“If our clients violate the law, they could suffer up to $2,500 (in fines) for each day they violate the law and also six months in jail for each day they violate the law,” said Scruggs.
The City of Phoenix has not cited Brush & Nib for violating the ordinance, so Koski and Duka are filing a ‘pre-enforcement’ suit against the city.
“The city has not attempted to force a lawsuit against us yet. But it clearly does apply to our clients. In fact, the city has already interpreted and essentially enforced the law against similar entities,” said Scruggs.
So why go to court when he city hasn’t pointed the finger at Brush & Nib? Scruggs says Koski and Duka don’t want to be looking over their shoulders every day to see if the government is after them.
“Obviously, when you hear, ‘If you violate this law, you’re going to go to jail for a long time and you’re going to suffer these severe financial penalties,’ (this is) the only sane thing a person would do in that situation. They wouldn’t violate the law. They wouldn’t wait around to go to jail. They would challenge the law and ask the court to declare this unconstitutional,” said Scruggs.
Scruggs says the Constitution is clearly on the side of his clients.
“The government makes a bad art critic. It really infringes on artists’ rights and the rights of all citizens,” said Scruggs.
“It’s really an egregious form of regulation on speech and that’s why it’s really important to stress this case is really about artistic freedom: the freedom of artists to create in accordance with their beliefs and to express and explain their art on their website,” added Scruggs.
Scruggs points out Koski and Duka are not opposed to welcoming gay and lesbian customers, it’s attaching their abilities to a particular event that troubles their consciences.
“Our clients willingly will serve people of all different sexual orientations, races, religions, whatever. It’s not about the person, it’s about the message that their art is promoting,” said Scruggs. “That shows this isn’t about discrimination. It’s about creating art that only promotes certain beliefs.”
Phoenix officials have yet to respond to Koski and Duka’s challenge but vow to do so. Scruggs expects this all to be handled by the court within the next few weeks, and he is looking forward to the fight.
“We welcome that challenge. We want to get before a court as soon as we can to make our legal arguments. We feel very confident that the right of free speech prevents the government from telling artists what they should and shouldn’t create,” said Scruggs.
