Supreme Court got it right, Phoenix violated speech rights

Guest Opinion//September 17, 2019

Supreme Court got it right, Phoenix violated speech rights

Guest Opinion//September 17, 2019


A state court isn’t typically where you’d turn for a dose of inspirational poetry. But once in a while, there’s an exception to every rule.

For anyone interested in freedom, the Arizona Supreme Court’s majority decision in Brush & Nib Studio v. City of Phoenix is music to the ears. The majority delivered a stirring reminder that freedom’s best days may well be ahead of not only every Arizonan, but of every American as well.

Steve Yarbrough
Steve Yarbrough

Ruling in favor of Brush & Nib Studio owners Joanna Duka and Breanna Koski, the court put a stop to Phoenix’s attempt to coerce these artists under threat of steep fines and jail time to create custom artwork in violation of their core beliefs. That’s not just a victory for Christian business owners like these two young women, it’s a win for artists of all different views. It means the government cannot compel a Muslim singer who doesn’t want to sing at a church’s Easter service. Or an LGBT print-shop owner who doesn’t want to design flyers criticizing same-sex marriage. Or an atheist freelance writer who doesn’t want to write a religious group’s promotional pieces.

“The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like-minded friends and family,” Justice Andrew Gould wrote. “These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and the art that express a person’s sincere religious beliefs.”

Justice Gould is right. The government should never try to silence you or force you to communicate something you disagree with. This is a central promise protected by both the U.S. and Arizona constitutions, and reiterated by Arizona’s Free Exercise of Religion Act.

In Arizona, as elsewhere throughout this nation, we’re free to peacefully live out (i.e., “exercise”) our own beliefs without fear of government punishment, and we’re free to speak our mind accordingly. By the same standard, we’re also free to refrain from speaking messages with which we do not agree, or celebrate events we do not endorse.

Yet, Duka and Koski’s case is a good reminder to never take this liberty for granted. Theirs was an appeal for the fundamental rights of free speech and conscience.

Duka and Koski serve everyone at Brush & Nib Studio, but they do not create art celebrating all events. Because their Christian faith informs them that marriage is the union between a man and a woman, they can only use their creativity to celebrate weddings that are between one man and one woman.

While not everyone will agree with their stance, it’s easy to see that if free speech and free religious exercise mean anything, it should mean Joanna and Breanna can decide for themselves which custom artwork to create − and which not to create − at their own studio.

It’s as Justice Gould put it in another section of the ruling: “The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interferences. But here, the City effectively cuts off [Brush & Nib’s] right to express their beliefs … by telling them what they can and cannot say.”

Somehow, this self-evident freedom evaded the Phoenix City Council. Instead of respecting Joanna and Breanna’s freedom, the City threatened them with up to $2,500 in fines, six months’ imprisonment, probation for three years, or any combination of the three for each day they decide to decline to hand-craft artwork conveying messages against their core convictions..

I had the privilege, along with several then-colleagues in the Arizona Legislature, to write an amicus brief supporting these women and the freedom they sought. Phoenix stood in clear violation of Duka’s and Koski’s constitutionally guaranteed freedom to live and work according to their faith. That’s what made Monday’s decision so crucial to the cause of freedom − not just for Brush & Nib, but for everyone.

Freedom is a beautiful thing, and there’s no question it won out at the Arizona Supreme Court in Brush & Nib. That’s something we all should celebrate.

Steve Yarbrough is the former president of the Arizona Senate. An attorney, he served 16 years in the Arizona Legislature from January 2003 until January 2019.