The opening brief has been filed in a case before the Arizona appeals court after a lower court stunningly ruled that publishing a “religious” statement is not “religious activity.”
Joanna Duka and Breanna Koski, who make wedding invitations and other artwork, filed a lawsuit in May 2016 challenging a Phoenix civil-rights ordinance, contending they could be prosecuted for refusing to do work for a “gay” or lesbian couple’s wedding.
They argue they cannot promote same-sex “marriage” with their work, because it would violate their deeply held Christian beliefs.
Their lawyers with the Alliance Defending Freedom filed an opening brief with the Arizona Court of Appeals after the Maricopa County Superior Court concluded their “creation of custom lettering or artwork … does not constitute ‘expressive speech’ and that publishing a religiously motivated statement and declining to create artwork contradicting one’s core religious beliefs does not involve ‘religious activity.'”
ADF Legal Counsel Samuel Green said artists “shouldn’t be threatened with jail time just because the government doesn’t like the views they choose to express.”
“We are asking the appeals court to reverse the trial court and protect these artists’ freedoms as their case goes forward because no artist should be forced to create art expressing messages that violate their core beliefs,” he said. “In addition, the law’s requirement that artists stay quiet about how their beliefs influence their artistic decisions is unjust and unlawful censorship.”
The far-left American Civil Liberties Union sought permission to file a friend-of-the-court brief defending the city’s law.
On its website, however, the ACLU states that artists should have free expression in a “free society.”
“A free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants – or does not want – to receive or create. Once you allow the government to censor someone else, you cede to it the power to censor you, or someone you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts.”
ADF Senior Counsel Jeremy Tedesco said he and his colleagues “couldn’t agree more with the ACLU’s statement on this, but we couldn’t disagree more with the completely contradictory position they are taking with regard to Joanna and Breanna.’
“It seems the ACLU prefers to be selective in who it thinks ought to be free and who ought to be punished for their views,” he said. “Phoenix officials are playing favorites, too, and we are asking the appeals court to ensure that they respect our clients’ artistic freedom and freedom of speech for the duration of this lawsuit. It’s our hope that the city will respect it permanently for all artists, regardless of the political or religious views that they hold.”
The ADF brief to the higher court states: “When commissioned artists create paintings and write words, they engage in protected speech – speech the government cannot compel or censor. This protection only increases when the government censors art motivated by religious beliefs or compels art forbidden by religious beliefs. These fundamental principles of artistic and religious freedom are at stake in this appeal.”
The Phoenix ordinance, they contend, violates Arizona’s Free Speech Clause and Free Exercise of Religion Act.
WND reported in 2016 when the Christian artists who run Brush & Nib took the city to court pre-emptively to prevent enforcement of the religious-rights violating ordinance.
At the center of the debate is § 18.4(B) of the city code, which “bars public accommodations from discriminating on the basis of a person’s race, color, religion, sex, national origin, marital status, sexual orientation, gender identity, or disability and from making any communication implying people will be discriminated against or are objectionable because of these protected traits.”
That means the city could not only force Koski and Duka to demand that they promote same-sex “marriage,” it prevents them from explaining to customers their religious beliefs.
Listen to the WND/Radio America interview with ADF’s Jonathan Scruggs on the case: