On Tuesday, the Arizona Supreme Court agreed to hear another case that shares eerie similarities with the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case. This time, instead of cake, the court will hear about two artists who run a shop called Brush and Nib Studio. Like Jack Phillips, the two women, Joanna Duka and Breanna Koski, are devout Christians. While they are happy to hand-paint artwork for their customers, particularly for weddings, they do not wish to convey messages that violate their religious beliefs. A sweeping law in Phoenix would mean the artists could face fines and jail time if the artists refuse to design messages with with they disagree.
According to Phoenix City Code 18-4(B)(1)-(3), the ordinance prohibits discrimination based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability. Adopted in 2013, it applies to businesses offering services to the general public. Unlike with Jack Phillips, there has not been a specific instance where the owners of Brush and Nib were asked to create artwork with which they did not agree. However, Alliance Defending Freedom, which represents the artists, believes “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.” 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.”
About a year ago, one judge sided with the city of Phoenix, saying the code does not violate the studio’s right to free speech or the free exercise of religion. In a June ruling, the Arizona Court of Appeals ruled with the city again. The artists face an uphill climb to show the Phoenix ordinance violates their rights.
“No one should be forced to create artwork contrary to their core convictions, and certainly not under threat of criminal fines and jail time. That is what’s at stake in this case, and we hope that the Arizona Supreme Court’s decision will protect artistic and religious freedom for everyone,” said Alliance Defending Freedom Senior Counsel Jonathan Scruggs in a statement. “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.”
During the Masterpiece case, the Supreme Court justices argued briefly about the definition of art and artistic expression:
MS. WAGGONER: Some —
JUSTICE KAGAN: But you have a — you have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?
Without a specific instance to show the Arizona Supreme Court where a patron tried to compel owners of Brush and Nib to create art with which they disagreed, it might be difficult to make the case that the Phoenix ordinance violates their First Amendment rights. So far, the Arizona lower courts have not sided with the owners. Still, the fact that the Arizona Supreme Court will hear the case is a positive development for the overarching issue of religious freedom, this time as it relates to artistic expression.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
