Joanna Duka and Breanna Koski, the Christian owners of a wedding invitation design business called Brush & Nib, say they have the right to refuse service to same-sex couples and have taken their case to the Arizona Supreme Court.
The women argue that an anti-discrimination ordinance in Phoenix violates their free speech and religious rights. Duka and Koski have presented their case in court twice already– in Maricopa County Superior Court and the Arizona Couty of Appeals. The judges ruled in favor of Phoenix in both cases.
The Arizona Supreme Court heard oral arguments on Tuesday, January 22.
Here’s what you need to know.
1. Duka & Koski Argue That Designing Invitations For Same-Sex Couples Would Indicate They Support Same-Sex Marriage, Which They Do Not
Joanna Duka and Breanna Koski have stated that they believe marriage is between one man and one woman. Their attorney, Jonathan Scruggs from the Alliance Defending Freedom, argued before the Arizona Supreme Court that the women do not want to appear as if they are endorsing or supporting same-sex marriage.
The Arizona Republic reported that in court, Scruggs explained that Duka and Koski are willing to sell “pre-made invitations” to any couple, regardless of their sexual preference. He said they’re also willing to create products that would decorate the couple’s home. But they feel it is in their right to refuse to design custom invitations or save-the-dates, products that explicitly celebrate the union.
The Arizona Court of Appeals previously disagreed with this sentiment, as explained in the opinion issued in June of 2018. That portion of the opinion reads:
“The mere fact that Section 18-4(B) requires Appellants to comply with the law does not render their creation of design-to-order merchandise for same-sex weddings expressive conduct. The items Appellants would produce for a same-sex or opposite-sex wedding would likely be indistinguishable to the public. Take for instance an invitation to the marriage of Pat and Pat (whether created for Patrick and Patrick, or Patrick and Patricia), or Alex and Alex (whether created for Alexander and Alexander, or Alexander and Alexa). This invitation would not differ in creative expression. Further, it is unlikely that a general observer would attribute a company’s product or offer of services, in compliance with the law, as indicative of the company’s speech or personal beliefs. See Rumsfeld, 547 U.S. at 65 (finding observers can appreciate the difference between sponsored speech and speech which is permitted because it is required by law). The operation of a stationery store—including the design and sale of customized wedding event merchandise—is not expressive conduct, and thus, is not entitled to First Amendment free speech protections.”
2. The Arizona Court of Appeals Ruled Against the Designers’ Argument That the Phoenix Ordinance, Which Prevents Them From Denying Service to Same-Sex Couples, Infringes on Their First Amendment Rights
The Arizona Court of Appeals disagreed with Duka and Koski’s argument that the Phoenix anti-discrimination ordinance violated their right to free speech. The judges wrote that the designers would be in violation of the law if they chose to refuse service to same-sex couples.
“Appellants want to be able to legally refuse to create custom-made merchandise for all same-sex weddings. Additionally, Appellants desire to post a public statement explaining their religious beliefs. Appellants’ proposed statement, in part, would notify potential customers that “Brush & Nib Studio won’t create any artwork that violates [their] vision as defined by [their]religious and artistic beliefs and identity,” which includes “artwork that demeans others, endorses racism, incites violence, contradicts [their] Christian faith, or promotes any marriage except marriage between one man and one woman…
Although Appellants have not yet refused services to a same-sex couple, we find their claims are justiciable.7 Here, Appellants have a concrete plan to violate Section 18-4(B) by refusing to create “custom made” announcements and invitations for same-sex weddings and by posting a statement about their commitment to their religious beliefs, which includes refusing to create design-on-request merchandise for same-sex weddings. Additionally, Phoenix acknowledges that Appellants would violate Section 18-4(B) if they posted their proposed statement…
Appellants argue Section 18-4(B) compels them to speak in favor of same-sex marriages. We disagree. Although Section 18-4(B) may have an incidental impact on speech, its main purpose is to prohibit discrimination, and thus Section 18-4(B) regulates conduct, not speech…
We are unpersuaded by Appellants’ argument that Section 18-4(B) infringes their freedom of association by requiring that they provide equal services to same-sex couples. Appellants operate an economic entity and a place of public accommodation; as such, they are prohibited from discriminating against customers based on a protected class. Further, although Appellants argue they created Brush & Nib pursuant to their religious beliefs, this alone does not bestow on Appellants the unfettered right of expressive association in their business. We do not dispute that some aspects of Appellants’ operation of Brush & Nib may implicate speech in some regard, but the primary purpose of Brush & Nib is not to convey a particular message but rather to engage in commercial sales activity. Thus, Appellants’ operation of Brush & Nib is not the type of expressive association that the First Amendment is intended to protect.”
The full 26-page court opinion is embedded above, or you can read it here.
3. The Phoenix Ordinance Prohibits Businesses From Discriminating On The Basis of Sexual Orientation
The first time Joanna Duka and Breanna Koski brought their argument before a judge was in 2017, in the Maricopa County Superior Court. That court ruled in favor of Phoenix. Page 3 of the order, embedded directly above, includes the city ordinance against discrimination. It reads:
1. Discrimination in places of public accommodation against any person because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability is contrary to the policy of the City of Phoenix and shall be deemed unlawful.
2. No person shall, directly or indirectly, refuse, withhold from, or deny to any person, or aid in or incite such refusal, denial or withholding of, accommodations, advantages, facilities or privileges thereof because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability nor shall distinction be made with respect to any person based on race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability in connection with the price or quality of any item, goods or services offered by or at any place of public accommodation.
3. It is unlawful for any owner, operator, lessee, manager, agent or employee of any place of public accommodation to directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability or that any person, because of race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability would be unwelcome, objectionable, unacceptable, undesirable or not solicited.
A ‘place of public accommodation’ is defined as including ‘all establishments offering their services, facilities or goods to or soliciting patronage from the members of the general public.’ Phoenix City Code §18-3. Plaintiffs’ business is a place of public accommodation as defined by the Ordinance because it offers services and goods to members of the general public.
4. In 2018, the United States Supreme Court Ruled in Favor of a Colorado Baker Who Refused to Make Cakes For Same-Sex Weddings
Joanna Duka and Breanna Koski’s argument may be supported by another recent case. In 2018, the United States Supreme Court set a precedent on this exact issue– about whether companies can deny service to same-sex couples due to religious or free speech reasons.
That case dated back to 2012. Jack Phillips, the owner of Masterpiece Cakeshop near Denver, refused to bake a wedding cake for Charlie Craig and David Mullins. Phillips argued that doing so would force him to go against his Christian beliefs. Colorado courts decided that Phillips was violating anti-discrimination laws, but Phillips appealed to the Supreme Court.
The Supreme Court narrowly sided with Phillips in their 2018 ruling. But Justice Anthony Kennedy wrote in his opinion that the decision was largely based on the high court’s belief that Phillips had been treated unfairly in the Colorado courts.
Justice Kennedy said that Phillips’ religious beliefs were not properly considered, writing that Phillips “was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”
5. Duka & Koski Met at a Bible Study & Founded Brush & Nib Studio in 2015
Joanna Duka originally had the idea to launch her own calligraphy business. She met Breanna Koski, a painter, at a Bible study. In a video on their website, they credit God for bringing them together.
The women bonded over a love of art and eventually decided to go into business together. They launched Brush & Nib Studio in 2015.
According to her Linkedin profile, Duka studied music at Paradise Valley Community College in Phoenix and worked as a piano teacher for four years. She previously worked as an office manager at the Pregnancy Resource Clinic Of Arizona.
Breanna Koski describes herself on the company website as a self-taught artist.