Three judges in an Arizona court, Lawrence Winthrop, Jennifer Campbell, and Paul McMurdie, have announced they are comfortable with the city of Phoenix forcing Christian artists to violate their faith and endorse same-sex marriage.
The announcement came in their decision, from their Arizona Court of Appeals, affirming a Phoenix ordinance that mandates that Christian company owners must support and endorse same-sex marriage with their products and artistry.
The same issue was before the U.S. Supreme Court just this week, and that court ruled in favor of a Colorado Christian baker who refused to lend his artistry to a cake for a homosexual duo. But the court did that on the grounds that the state of Colorado exhibited bias against the baker.
So multiple fights over the issue, by a florist in Washington State and others, continue.
This one involves two Christian artists who run Brush & Nib, a custom calligraphy service, Joanna Duka and Breanna Koski.
They sued when Phoenix adopted an ordinance that would punish them for refusing to violate their faith and promote, with their artistry, a gay wedding.
The decision at the appeals court said the ordinance was seriously flawed, and part had to be struck down for being too vague. But the ruling said the basic premise could be enforced.
The ruling likely won’t be the final word on the fight.
“Artists shouldn’t be forced under threat of fines and jail time to create artwork contrary to their core convictions,” said Jonathan Scruggs, senior counsel for the Alliance Defending Freedom, which is representing the two artists.
“The court’s decision allows the government to compel two artists who happily serve everyone to convey a message about marriage they disagree with. This contradicts basic freedoms our nation has always cherished. In Monday’s Masterpiece Cakeshop decision, the Supreme Court reaffirmed that ‘religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.’
“Phoenix’s position contradicts this principle and violates our clients’ artistic and religious freedom. We intend to appeal the court’s decision.”
Duka and Koski contend they could be and would be prosecuted under the ordinance for refusing to promote a gay or lesbian wedding.
That would, they affirmed and the court agreed, violate their deeply held Christian beliefs.
And it violates Arizona’s Free Speech Clause and Free Exercise of Religion Act, the lawyers explained.
The Monday decision at the U.S. Supreme Court affirmed Jack Phillips’ decision not to do a same-sex wedding cake, and the Arizona court jumped on that as justification to allow the mandate against Christians.
It quoted from the Supreme Court’s decision that society now recognizes that “gay persons and gay couples cannot be treated as social outcasts” but that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
The Arizona judges said First Amendment issues didn’t matter.
“They cannot discriminate,” the court said of the artists, “against potential patrons based on sexual orientation.”
Key, however, was the court’s concession that there was no “specific message” being challenged.
The judges also lashed out at the artists, charging that they “are not the first to attempt to use their religious beliefs to justify practices others consider overtly discriminatory.”
The judges refused to admit that creating custom wedding invitations and artwork was “expressive conduct.”
The judges claimed the ordinance was content and viewpoint neutral, even though on its face it specifically includes some viewpoints, and excludes others.
The judges also quote Elena Kagan’s opinion in the Phillips case, that “a vendor can choose the product he sells, but not the customers he serves,” but that, of course, ignores the fact that the “product” being sold requires personal creation by an artist, and is not the same class as a pair of boots or a loaf of bread.
The Phillips ruling from the U.S. Supreme Court appears not to have made any move toward resolving the fight that was sparked by the creation of same-sex marriage: the conflicting assertions whether the religious rights protected by the First Amendment are supreme, or whether the newly created LGBT rights are supreme.
For example, Barronelle Stutzman’s complaint that authorities and officials in her home state of Washington attacked her for refusing to violate her faith and support a homosexual wedding, with her floral artistry, is moving forward.
“Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage,” said Kristen Waggoner, of the Alliance Defending Freedom, on the florist’s case. “The court was right to condemn that. Tolerance and respect for good-faith differences of opinion are essential in a society like ours. This decision makes clear that the government must respect Jack’s beliefs about marriage.”
Waggoner Tuesday responded to Washington Attorney General Bob Ferguson’s claim that the Phillips case will have little effect on his attacks on Stutzman.
“In Masterpiece Cakeshop, the U.S. Supreme Court denounced government hostility toward the religious beliefs about marriage held by creative professionals like Jack Phillips and Barronelle Stutzman. Such hostility exists when the government treats those people of faith worse than other business owners. The state of Washington, acting through its attorney general, has done just that,” Waggoner said.
“While the attorney general failed to prosecute a business that obscenely berated and discriminated against Christian customers, he has steadfastly – and on his own initiative – pursued unprecedented measures to punish Barronelle not just in her capacity as a business owner but also in her personal capacity. In its Masterpiece Cakeshop ruling, the Supreme Court condemned that sort of one-sided, discriminatory application of the law against people of faith.”
She added, “Also, in the legal briefs that the attorney general has filed in Barronelle’s case, he has repeatedly and overtly demeaned her faith. He has compared her religious beliefs about marriage – which the Supreme Court said are ‘decent and honorable’ – to racial discrimination. This conflicts with the Supreme Court’s recognition in Masterpiece Cakeshop that it was ‘inappropriate’ for the government to draw parallels between those religious beliefs and ‘defenses of slavery.'”
She pointed out that Christian artists like Stutzman and Phillips already serve all customers, but decline to endorse all messages with which they are presented.
In the Phoenix case, one factor could end up being that the ordinance would punish a business owner with one set of beliefs, but not a business owner with different religious beliefs.