8 states blast Phoenix attack on artists’ speech

By Bob Unruh


Eight states have filed a brief with the Arizona Supreme Court in support of two calligraphy artists who are challenging a Phoenix ordinance that would require them to violate their Christian faith and support same-sex weddings.

The attorney general from Arizona was joined by officials from Arkansas, Louisiana, Nebraska, Oklahoma, Texas, West Virginia and Kentucky. They stated that while they have an interest to protecting their citizens’ “freedoms of speech and religion,” they do not have any “legitimate interest in coercing artists to use their talents to create government sponsored messages.”

“Such a practice, if permitted, is not only constitutionally forbidden, but would undermine the ‘mutuality of obligation’ upon which our ‘pluralistic’ and ‘tolerant’ society is founded,” they wrote.

The comments come in support of Phoenix artists Joanna Duka and Breanna Koski. Under the Phoenix ordinance, they risk jail time and fines if they don’t adhere to the ordinance.

Other supporting briefs have been filed by lawmakers in Arizona, the CATO Institute, the Center for Religious Expression, the National Center for Law & Policy, Tyndale House Publishers, Crossroads Productions, the Ethics and Religious Commission of the Southern Baptist Convention, Jewish Coalition for Religion Liberty, Arizona Catholic Conference, Association for Biblical Higher Education and Compassionate Counselors.

The statements concern the state Supreme Court’s review of a Phoenix ordinance that forces Christian artists to use their talents to promote homosexuality.

The ordinance also forbids public expression of the Christian belief that marriage is the union of one man and one woman.

A Phoenix art studio, Brush & Nib, which specializes in hand-painting, hand-lettering and calligraphy for weddings and other events, challenged the city ordinance that requires its Christian owners to provide the same promotion to same-sex weddings as they do for traditional weddings.

The Alliance Defending Freedom, which is representing Brush & Nib, said the state Court of Appeals allowed the city “to override” the art company’s decisions about “what messages to convey.”

The ordinance, ADF contends, violates “fundamental principles of freedom of speech and religion.”

The Jewish Coalition for Religious Liberty earlier pointed out that when the U.S. Supreme Court created same-sex marriage, the ruling “promised that religious believers and organizations would remain secure in their constitutional right to believe, teach and live out their sincere religious convictions that marriage is between a man and a woman.”

“The promise was unmistakable and unambiguous,” the filing said.

The Supreme Court’s majority opinion acknowledged those who believe marriage “is by its nature a gender-differentiated union of man and woman.”

“This view long has been held – and continues to be held – in good faith by reasonable and sincere people. … Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” the opinion stated.

Religious believers, the U.S. Supreme Court said, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

ADF Senior Counsel Jonathan Scruggs, who argued the case before the Arizona Court of Appeals, said: “That’s what’s at stake in this case, and we hope that the Arizona Supreme Court’s decision will protect artistic and religious freedom for everyone. The government must allow artists to make their own decisions about which messages they will promote. Joanna and Breanna are happy to design custom art for anyone; they simply object to being forced to pour their heart, soul, imagination, and talent into creating messages that violate their conscience.”

It was judges Lawrence Winthrop, Jennifer Campbell and Paul McMurdie on the Arizona Court of Appeals who allowed the city’s restrictions on speech.

The lower-court judges 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 eight states made clear their position: “The lower court arrived at this holding by concluding that this art is not protected speech when regulated by a public accommodation law that generally prescribes conduct. But art is a classic example of pure speech and pure speech cannot be made a public accommodation.”

The filing said the “concerns of compelled speech are further heightened here because the city’s ordinance would force petitioners to create art for a ceremony considered by them to have deep religious significance.”

That means Phoenix is violating the Arizona Free Exercise of Religion Act, they said.

The brief points out that the Arizona Constitution provides even greater protection for speech than does the First Amendment of the U.S. Constitution.

“Pure speech ‘refer[s]’ not only to written or spoken words, but also to other media (such as painting, music, and film) that predominantly serve to express thoughts, emotions, or ideas.’ Petitioners’ creation of custom-made calligraphy and paintings fit squarely within this definition,” the brief said.

Scruggs said: “As the briefs filed this week affirm, the government shouldn’t threaten artists with jail time and fines to force them to create art that violates their beliefs. Joanna and Breanna work with all people; they just don’t promote all messages. Creative professionals should be free to create art consistent with their convictions without the threat of government punishment. Instead, the government must protect the freedom of artists to choose which messages to express through their own creations.”

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