Christian artists in Arizona are taking their challenge of a Phoenix ordinance to an appeals court after a lower court upheld the city policy forbidding businesses to refuse service at a same-sex wedding and banning business owners from posting any expressions that protected groups might find offensive.
Brush & Nib owners Breanna Koski and Joanna Duka filed a pre-enforcement suit against Phoenix earlier this year, meaning they were not accused of violating the ordinance but challenged it on first amendment grounds.
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.”
Koski and Duka were generally fine with the language until they understood it to mean they could not opt out of providing work for an event that conflicts with sincerely-held religious beliefs and being unable to display work expressing their beliefs in their shop.
The City of Phoenix vigorously defended the ordinance and on Monday the Superior Court of Arizona for Maricopa County agreed.
“The plain language of the ordinance prohibits only the conduct of refusing to sell and the conduct of publishing that refusal to sell. Conversely, the only thing compelled by the ordinance is the sale of goods and services to persons regardless of their sexual orientation. There is nothing about the ordinance that prohibits free speech or compels undesired speech,” ruled Judge Karen A. Mullins.
“The logic of the court was that when our clients create paintings and write words on their artwork that they’re not expressing any message at all, that it’s not speech at all,” said Alliance Defending Freedom Legal Counsel Jonathan Scruggs.
Alliance Defending Freedom is representing Brush & Nib in the case.
Scruggs says Mullins seemed to side with the two primary arguments made by the city.
“One argument (from the city) is that our clients are not speaking at all. Even though they are writing words and creating artwork, none of that conveys messages. It’s just conduct the city can regulate, just like if our clients were making a sandwich and selling it. That’s just not true. Words do express messages,” said Scruggs.
He says the other contention from the city is equally galling.
“Another disturbing argument is that it’s essentially no big deal when our clients have to celebrate same-sex wedding ceremonies because all our clients have to do is write words down. You just have to write one word and not the other. Therefore, you’re not being burdened at all,” said Scruggs. “That pretty much nonsense.”
He says anyone with a basic grasp of the first amendment should know that argument doesn’t hold water.
“When you have to affirm a belief, a ritual, an idea that you don’t believe in. That really goes to the core of what freedom is,” said Scruggs.
The second dispute with the ordinance centers on forbidding businesses from expressions that might offend others.
“It’s a part of the law that basically says our clients cannot issue any type of communication that implies someone is unwelcome or not solicited or undesirable. The language is very broad and very vague and could apply to anything. Almost anything could make someone feel unwelcome,” said Scruggs.
“If businesses and individuals can’t put things up on their website to express their beliefs, then where can they put it? So it’s really a strong attack on religious and expressive freedoms in our country,” said Scruggs.
Scruggs says the ordinance violates his clients’ rights of free speech and expression from both directions.
“You can’t win here and you can’t win there. You are forced to convey messages you don’t want to convey and you can’t convey the messages that you do want to convey. You’re simultaneously being silenced and being compelled to speak against your beliefs,” said Scruggs.
He says the logical conclusions of this policy are “scary.”
“If these two artists can’t do that, in theory that should mean other artists can’t either – and other writers and other speakers can’t. That’s a scary notion that the government gets to decide what’s legitimate and what’s not, what’s permissible and what’s not,” said Scruggs.
Scruggs says his clients are in strong position on appeal.
“It’s clearly wrong and we’ve already appealed that decision to the appellate court of Arizona. That’s the next step in this process,” said Scruggs.
In addition to arguing the case on constitutional grounds, Scruggs says the Arizona Supreme Court’s recent actions also give him reason for optimism.
“In 2012, just four years ago, the Arizona Supreme Court specifically said that a tattoo parlor engages in expression when it tattoos words and images on somebody. This is just common sense. If being tattooed with images and words is speech then certainly what our clients do when they write on a piece of paper with words or they put it on a website, that has to be speech too,” said Scruggs.
Arguments before the appellate court are likely to come in the next few months. If Brush & Nib lose there, the case will be appealed to the the Arizona Supreme Court.
