Conservatives Hope Religious Art Trumps LGBT Protections In New Lawsuit

Breanna Koski and Joanna Duka of Brush & Nib. CREDIT: ALLIANCE DEFENDING FREEDOM
Breanna Koski and Joanna Duka of Brush & Nib. CREDIT: ALLIANCE DEFENDING FREEDOM

Wedding vendors seeking to discriminate against same-sex couples have been on the defensive across the country for actually refusing service. Now, a conservative law firm has found a business willing to be the poster child for an effort to knock down a law protecting LGBT people from discrimination with claims of artistic expression and “religious freedom.”

Joanna Duka and Breanna Koski own a calligraphy studio in Phoenix, Arizona called Brush & Nib Studio. They make all kinds of custom art, including wedding invitations and other items marrying couples might use. They’re also evangelical Christians who refuse to serve same-sex couples. Even though they haven’t yet been asked by such a couple, they’re partnering with the Alliance Defending Freedom (ADF) to file a legal complaint in Arizona state court attempting to overturn Phoenix’s nondiscrimination ordinance.

This pre-enforcement challenge is based on the idea that if they refused to sell the same services to same-sex couples that they already sell to opposite-sex couples, they would be penalized under the law. And the law, they argue, infringes on their right to freely express their religious beliefs.

Basically, they just don’t want to have to follow that law. Not only do they not want to have to serve marrying same-sex couples, but they also want to be able advertise their beliefs on their website so that same-sex couples don’t even bother asking for their services. Most importantly, they don’t want anybody else to have to follow it either. They’ve filed a facial complaint, asking for the entire law to be thrown out and made unenforceable.


“Joanna and Breanna must live authentic, holistic Christian lives,” the complaint reads. “They must seek to honor God in all aspects of their lives, including all aspects of their work, and must seek to serve God and their neighbors through their vocation. As a result, Joanna and Breanna cannot do anything in their business that violates their religious beliefs or dishonors God.”

The suit outlines just what the pair believes in detail:

Joanna and Breanna beleive that God created two distinct genders in His image, that God ordained marriage to be between one man and one woman, and that God intends for all sexual activity to occur within this one-man/one-woman marriage covenant.

As a corollary to these beliefs and because of statements in the Bible addressing this topic, Joanna and Breanna believe that all sexual acts outside a one-man/one-woman marriage covenant violate God’s will, including adulterous, polygamous, or homosexual behavior.

Nevertheless, they also “believe Jesus commanded Christians to love their neighbors no matter who they are, what they believe, or what they do.” In order for them “to love their customers,” they believe “they must be upfront and honest with their customers and respectful toward their customers and their customers’ time.” In fact, they’ll even create custom artwork for LGBT people “so long as that artwork does not violate Joanna and Breanna’s artistic and religious beliefs.”


The bottom line, however, is that “Joanna and Breanna simply cannot create custom artwork that conveys messages condoning, supporting, or participating in activities or ideas that violate their religious beliefs, such as custom artwork for same-sex wedding ceremonies.”

Duka and Koski claim that the law violates their “religious freedom,” but they also argue that it singles them out. It permits “those whose religious and artistic beliefs support same-sex marriage to express their beliefs without fear of punishment, while imposing penalties on those who express artistic and religious beliefs opposing same-sex marriage.”

But the law doesn’t actually take any position on same-sex marriage. It only stipulates that public accommodations — i.e. businesses like Brush & Nib — serve all customers equally regardless of their sexual orientation. ADF wants it overturned for everybody.

Jeremy Tedesco, the calligraphers’ attorney, openly admitted that the goal isn’t just to protect the pair but to take down the whole law in a piece at The Federalist explaining the suit. “If they dare disobey, Phoenix can incarcerate them for six months and fine them up to $2,500 for each day of disobedience,” he warned. “Instead of risking that, Joanna and Breanna chose the only rational option left: ask a court to invalidate the law for violating the Arizona Constitution.”

Overturning the law was the only option because they do not want to be punished under it, they do not want to close their business, and they refuse to “compromise their artistic and religious beliefs.”

ADF has used these same arguments in other cases — to no avail. In particular, it was their chief argument when defending Jack Phillips, a Colorado baker who refused to serve a same-sex couple. Their claims that artistic expression deserves an exemption under nondiscrimination laws lost all the way up to the Colorado Supreme Court, which refused to hear their case in April. As the Colorado Appeals Court explained, refusing service because of a belief opposing same-sex marriage is indistinguishable from refusing service because of the couple’s sexual orientation.


The same argument has also failed in the defense of florist Barronelle Stutzman, the Washington florist who refused to provide flowers for a same-sex couples’ wedding. What Stutzman believes about same-sex marriage is irrelevant, Benton County Superior Court Judge Alex Ekstrom concluded, because the state’s nondiscrimination protections “address conduct, not beliefs.” ADF has appealed that case to the Washington Supreme Court and continues to highlight it nearly weekly in fundraising emails.

Phoenix Mayor Greg Stanton (D) rebuffed the Brush & Nib complaint, saying in a statement, “The Phoenix non-discrimination ordinance protects fundamental civil rights for everyone and we will defend it aggressively.”

Brendan Mahoney, an attorney who helped craft the 2013 law, accused ADF of using the suit as a fundraising gimmick, noting that since the law’s implementation, no business has ever been penalized under it. “That must be bad for Alliance Defending Freedom, which makes its money promoting its anti-gay agenda. Because the Phoenix law has worked so well, ADF has to resort to drumming up a hypothetical case off of which to fundraise.”