A Winning Streak

The Arizona Supreme Court Strikes a Powerful Blow

Free Speech and Religious Freedom Upheld

By David French
National Review Online


Free speech and religious liberty are on a winning streak. Last month the Eighth Circuit Court of appeals ruled that Christian wedding photographers could not be compelled to use their artistic talents to help celebrate same-sex weddings. Today, the Arizona Supreme Court reached a similar holding, this time on behalf of Christian calligraphers and painters Joanna Duka and Breanna Koski. The case, brought by my friends and former colleagues at the Alliance Defending Freedom, is similar to multiple other wedding vendor cases. The plaintiffs do not discriminate on the basis of sexual orientation (they happily serve gay customers). They merely refuse to produce art that advances ideas they find objectionable.

Duka and Koski operate a limited liability company called “Brush & Nib Studios.” The company’s Operating Agreement declares its beliefs quite clearly — stating that it will not create “custom artwork that communicates ideas or messages . . . that contradict biblical truth, demean others, endorse racism, incite violence, or promote any marriage besides marriage between one man and one woman, such as same-sex marriage.” As with all these cases, the core question is whether the custom artwork at issue constitutes constitutionally protected speech (the court was interpreting the Arizona constitution, but applied federal free speech precedents). If so, then the state’s demand that the plaintiffs produce art for same-sex marriages constitutes a form of compelled speech, among the most egregious forms of First Amendment violation. Compelled speech violates the fundamental principle that “an individual has autonomy over his or her speech and thus may not be forced to speak a message he or she does not wish to say.”

The court held that the plaintiffs’ custom wedding calligraphy constituted “pure speech:”

Each custom invitation created by Duka and Koski contains their hand-drawn words, images, and calligraphy, as well as their hand-painted images and original artwork. Additionally, Duka and Koski are intimately connected with the words and artwork contained in their invitations . . . For each invitation, Duka and Koski spend many hours designing and painting custom paintings, writing words and phrases, and drawing images and calligraphy. Moreover, they insist on retaining artistic control over the ideas and messages contained in the invitations to ensure they are consistent with their religious beliefs.

The court compared the plaintiffs to tattoo artists, individuals who are unquestionably in the business of creating art. It’s worth repeating time and time again that refusing to advance a particular message is not the same thing as the refusal to provide a service. Custom art is not ham and eggs at Cracker Barrel. Progressive legal dissenters (including the dissent in this case) recognize and don’t wish to overrule the compelled speech doctrine; they instead label the custom artwork at issue (whether it’s a custom cake, custom wedding video, or custom floral arrangement) as mere commercial activity, and the plaintiffs’ refusal to create the custom artwork is discriminatory conduct. The court disagreed:

Ultimately, the City’s analysis is based on the flawed assumption that Plaintiffs’ custom wedding invitations are fungible products, like a hamburger or a pair of shoes. They are not. Plaintiffs do not sell “identical” invitations to anyone; every custom invitation is different and unique. For each invitation, Duka and Koski create different celebratory messages, paintings and drawings; they also personally write, in calligraphy or custom hand-lettering, the names of the specific bride and groom who are getting married. In short, Plaintiffs do not create the same wedding invitation for any couple, regardless of whether the wedding involves a man and a woman or a same-sex couple.

A well-crafted court opinion is an educational document. It can and often should not only persuade the precise legal reasoning at issue but also the justifications for the legal rules it applies. The court’s words are compelling: 

Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone. After all, while our own ideas may be popular today, they may not be tomorrow.

“Free speech for me, but not for thee” cannot be an American governing philosophy. Moreover, continued victories for freedom of speech could well draw lines that allow both sides of the cultural divide the space to speak and exercise their liberties without creating a false, zero-sum conflict. The court quoted the Supreme Court of the United State’s seminal opinion in West Virginia v. Barnette, and it’s worth quoting here as well:

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . . Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

This is a great truth of history, and every American victory for free speech builds a larger and deeper defense of American pluralism. Today, the Arizona Supreme Court did its part to maintain America’s first freedoms.