Attorney explains why Phoenix artists are suing rather than create art for same sex weddings

Attorney: Phoenix’s anti-discrimination law forces Brush & Nib Studio to serve same-sex weddings, violating its owners’ religious beliefs.

Joanna Duka and Breanna Koski met at a Bible study for young adults, discovered they shared similar artistic and religious passions, and started Brush & Nib Studio together. Brush & Nib is an upscale hand-painting, hand-lettering and calligraphy company that creates and sells customized art, including for weddings.

Brush & Nib reflects who Joanna and Breanna are and what they believe — only creating art consistent with their Christian beliefs. The pair willingly serve and will create art for anyone, but they cannot create art promoting certain messages and ideas. For example, Brush & Nib doesn’t create art that demeans others, promotes racism or objectifies the female body. They also do not create art that violates their Christian beliefs about marriage.

But a Phoenix law is telling them that if they want to avoid prison and fines, they and their business must stay silent about their religious beliefs and create art that violates their religious beliefs. That leaves Joanna and Breanna with a simple yet stark choice: go to jail, forsake their beliefs or shut down their business.

Those options don’t work for Joanna or Brenna — and don’t comply with the Arizona Constitution either.

Law won’t allow them to explain beliefs

So they have decided to not play Phoenix’s version of the Hunger Games, a game they can only lose and lose big. They have instead chosen an option the game maker didn’t give them: to ask a court to declare that the Phoenix law violates their freedom of speech and freedom of religious exercise.

After starting their small business, Joanna and Breanna learned that the Phoenix law prohibits businesses from “discriminating” based on sexual orientation and from communicating any message that “implies” people are “unwelcome” because of sexual orientation. Although the two young women happily create art for everyone regardless of sexual orientation, Phoenix interprets its law to require them to create art for events, like same-sex wedding ceremonies, that are completely at odds with their religious beliefs.

Phoenix also interprets its law to prevent them from explaining their religious beliefs and why they must create art consistent with their beliefs. For Joanna and Breanna, that’s a bridge too far.

Why we’re suing now, before breaking law

When a law prohibits people from exercising their legally protected freedoms, they basically have three options:

  1. They can stop exercising their freedoms and allow the government to trample them without resistance. Not ideal.
  2. They can violate the law, suffer the penalty, and then defend themselves. One Arizona court described this path as “compelling” people “to pull the trigger to discover if the gun is loaded.” It “invites disorder and chaos and subverts the very ends of law.” So, not a reasonable option.
  3. Finally, they can go to court before breaking the law and argue that the law violates their rights and shouldn’t be enforced. This option is called a “pre-enforcement challenge” because it challenges the law before it is enforced.

Joanna and Breanna took this final option and filed a pre-enforcement challenge in May to defend their freedom before going to jail and paying fines. Americans have used this approach numerous times to contest laws, from limits on abortion to restrictions on pornography. Joanna and Breanna are the latest in a long list of individuals to proactively challenge laws through the judicial system rather than violate the law and suffer penalties.

Similar cases around the country

And they have good reason to be concerned about Phoenix’s law. Similar laws have already been used to force others in the wedding industry to violate their religious beliefs. Joanna and Breanna needn’t look any further than the ordeals of a grandmother in Washington, a grandfather in Colorado, or a young couple in New Mexico to understand the severity of the threat.

No fair legal system requires citizens to go to jail before they can oppose injustice. If citizens had to do this, no one would challenge unconstitutional laws, and the government could pass these laws with impunity.

As Dr. Martin Luther King, Jr. noted, those “who engage in nonviolent direct action are not the creators of tension” but “merely bring to the surface the hidden tension that is already alive.”

A stand against forced conformity

Joanna and Breanna are exposing the pre-existing tension between Phoenix’s law and their constitutionally protected freedoms, between the right to speak and create freely and the government’s attempt to crush dissent and command conformity.

And that is precisely what’s at stake. John F. Kennedy framed it well: “If art is to nourish the roots of our culture, society must set the artist free to follow his vision wherever it takes him. We must never forget that art is not a form of propaganda; it is a form of truth.”

Jonathan Scruggs is legal counsel with Alliance Defending Freedom and represents Brush & Nib in its lawsuit against the city of Phoenix.

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