A preemptive step to avoid fines, possible jail time

Two Christian business owners in Phoenix are hoping their legal challenge to a local ordinance will usher in a happy new year for them.

Artists Joanna Duka and Breanna Koski (pictured) believe in traditional, biblical marriage – a belief that brought them into conflict with a Phoenix ordinance as owners of Brush & Nib Studio in the capital city (see more details on this case). The Arizona Supreme Court will decide in January whether to rule in favor of Duka and Koski – or uphold a lower court's ruling that says the artists must comply with an ordinance that requires they do artwork for all weddings, regardless of their religious objections.

The attorney representing Duka and Koski explains this is a preemptive challenge – meaning the artists are challenging this ordinance before they're found guilty of violating the ordinance, which requires fines and even jail time for guilty parties.

"In terms of pre-enforcement challenges, this has been used in the Civil Rights-era many, many times, because Americans shouldn't have to wait to be thrown in jail before they can challenge an unjust law," said attorney Kristen Waggoner of Alliance Defending Freedom during an interview Thursday on Fox & Friends (see below).

Eric Fraser, the attorney representing Phoenix, says the artists in question want the court system to give them a "blank check" to refuse service to any same-sex couple that is requesting wedding products.

"There is no principled way to distinguish between discrimination on the basis of sexual orientation versus discrimination on other basis such as race or even religion," he continues in statements shared by both Arizona-based KJZZ and Fox & Friends. But that argument is just "flat wrong," says Waggoner.

"If the free speech guarantees mean anything, they protect the author's pen and the painter's brush – and this old, tired analogy to race is just a bankrupt analogy that the U.S. Supreme Court has rejected not once but twice: in the Obergefell same-sex marriage decision as well as in the Masterpiece Cakeshop decision," she explained to Fox & Friends. "They serve everyone [but] they don't express all messages – and that's critical distinction."

Fox & Friends interview with Waggoner, Duka, and Koski