Dustin Gardiner

The Republic | azcentral.com

Two Phoenix artists who make wedding invitations and other artwork filed a lawsuit Thursday challenging the city's civil-rights ordinance, saying they fear prosecution if they refuse to do work for a gay or lesbian couple's wedding.

The lawsuit could reignite a fiery debate about the intersection of constitutional freedoms and Phoenix's ordinance prohibiting discrimination on the basis of sexual orientation or gender identity. Opponents want the city's law overturned to allow business owners to deny service to LGBT people if it conflicts with their religious beliefs.

Attorneys for the conservative Alliance Defending Freedom filed the lawsuit on behalf of Joanna Duka and Breanna Koski, co-owners of Brush & Nib Studio and self-described evangelical Christians. Their studio sells artwork, such as hand-painting and calligraphy, for weddings and other events.

According to the lawsuit, Duka and Koski fear they could face jail time and other penalties under Phoenix's non-discrimination ordinance if they refuse to create art for a gay couple's wedding ceremony or publicly voice their beliefs against same-sex marriage.

No gay couple has filed a complaint against them, and it's unclear if any gay couples have requested their artistic services.

"As for these beliefs about marriage, Joanna and Breanna believe that God created marriage as a union exclusively between one man and one woman," their lawsuit states. "And they cannot create art for events that celebrate any other kind of marriage, including same-sex marriage."

Duka and Koski directed a request for comment to their attorneys. Their representatives at the Alliance Defending Freedom said the plaintiffs cannot comment because they worry they could be violating the city's ordinance if they explain their desire not to do work for same-sex weddings.

Swift condemnation

The lawsuit drew swift condemnation from Mayor Greg Stanton and gay-rights leaders, who vowed to defend the city's ordinance.

Brendan Mahoney, an LGBT advocate and attorney who helped write the city's law, likened the situation to white supremacists who argued they had religious objections to desegregation. He said the case is about everyone's right to access a public accommodation, not about Duka and Koski's ability to create art.

“Fifty years ago, people argued that their religious beliefs protected them and allowed them to refuse to serve blacks at white-only lunch counters," Mahoney said. "The only difference today is now we’re talking about gay people."

A Phoenix spokeswoman did not respond to a request for comment before deadline. On Thursday evening, she said the city had not been served with their complaint yet.

However, Mayor Greg Stanton, released a statement, saying, "The Phoenix non-discrimination ordinance protects fundamental civil rights for everyone and we will defend it aggressively."

Although no same-sex couple has accused Duka and Koski of breaking the law, they say the city has already infringed on their rights.

Their lawsuit, filed in Maricopa County Superior Court, states they are filing a "pre-enforcement civil rights lawsuit" because they could face prosecution if they refuse to provide service for a same-sex wedding or share their views about marriage. They want to post a statement on their website explaining why they cannot create art for same-sex marriages.

In 2013, Stanton and a majority of the Phoenix City Council voted to outlaw discrimination against gay, lesbian, bisexual and transgender residents.

Threat of fines and jail

The city's ordinance bans discrimination against LGBT people in the areas of housing, employment and public accommodations, including privately owned businesses. Business owners and individuals that don’t comply could be criminally prosecuted and face a misdemeanor charge, with each violation punishable by up to six months in jail and a $2,500 fine.

Duka and Koski's lawsuit asks the court to declare the city's ordinance unconstitutional under the Arizona Constitution's Free Speech Clause and Religious Toleration Clause, among other areas of the law, so they and other artists can create art that "reflects their beliefs, not the government's."

“Artists shouldn’t be threatened with jail for disagreeing with the government,” Jeremy Tedesco, an attorney representing the artists, said in a news release. “The government must allow artists the freedom to make personal decisions about what art they will create and what art they won’t create."

Attorneys for Duka and Koski said the threat of prosecution from the city is imminent. They cited a case where the city investigated a wedding planner after she refused to do business with a lesbian couple. In that instance, the business was run by ordained ministers and the city's ordinance provides an exemption for religious organizations.

Mahoney cast the lawsuit as a fundraising gimmick, saying no person or business has ever been penalized under the city's law.

"That must be bad for Alliance Defending Freedom, which makes its money promoting its anti-gay agenda," Mahoney said in a statement. "Because the Phoenix law has worked so well, ADF has to resort to drumming up a hypothetical case off of which to fundraise."

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