“Brush And Nibs” Wins Free Speech Case In Arizona.

(image courtesy of Alliance Defending Freedom.)

In 2015, Joanna Duka and Breanna Koski of Phoenix, Arizona met each other and decided to combine their talents to design and produce custom, hand lettered invitations to events including events such as a wedding. Duka and Koski were creating specific, individual invitations that celebrated marriage. The two formed a company called “Brush & Nibs” which offered the custom and hand lettered invitations. What the two devoutly Christian women refused to do was to use their talents to create specialized wedding invitations for same sex marriages due to the women’s religious beliefs.

From the Alliance Defending Freedom, who represented Duka and Koski:

But this wedding focus drove Joanna and Breanna straight into a problem. Phoenix law required Brush & Nib to create and speak according to Phoenix’s definition of marriage.

As Joanna and Breanna were starting their business, they kept seeing news reports about authorities forcing Christians in the wedding industry to promote same-sex wedding ceremonies. Meanwhile, their friends began to ask them if Brush & Nib would promote same-sex wedding ceremonies. Then Joanna and Breanna saw the ensuing social media frenzy over the U.S. Supreme Court creating a constitutional right to same-sex marriage. They realized that they may not have the freedom to create art consistent with their artistic and religious beliefs. They had to find out for sure.

What they found was worse than they imagined. A Phoenix law required Brush & Nib to create invitations and other artwork for same-sex wedding ceremonies. It also prevented Brush & Nib from explaining to customers and the public why they could only create art consistent with their beliefs about marriage. And this law did all this through criminal penalties. For each day Joanna and Breanna followed their religious beliefs and disobeyed the law, they would each be penalized up to $2500 and six months in jail.

That left Joanna and Breanna with an impossible choice. They didn’t want to violate the law. They didn’t want to go to jail and pay $2500 for each day they failed to comply. They didn’t want to close the business they poured so much into. But the alternative wasn’t doable. They could not compromise their artistic and religious beliefs. They could not accept sitting down in their studio and hand-drawing artwork that contradicted who they are and what they hold dear. They could not condone lying to customers or wasting customers’ time – telling customers that Brush & Nib would create something it couldn’t. And they could not stomach staying silent about the very beliefs that inspire their art.

It is somewhat interesting to note that Brush & Nibs had not been cited under Phoenix’s public accommodation laws when they launched their lawsuit against the City in 2016. Instead, the lawsuit sought to stop the City from enforcing the ordinance against Brush & Nibs should the City want to do so under the doctrine of a “Pre-Enforcement Challenge” lawsuit.

Initially, Brush & Nibs lost their case in lower courts:

In October 2017, Maricopa Country Superior Judge Karen A. Mullins ruled that the city code in question does not violate the studio’s right to free speech, or the free exercise of religion.

Under that ruling, the studio couldn’t legally refuse to sell their custom-made products to same-sex couples, or post a statement on their website saying that same-sex couples aren’t welcome as customers. That decision was affirmed by the Arizona Court of Appeals in June of 2018.

The two women and the Alliance Defending Freedom appealed to the Arizona Supreme Court which ruled this past Monday by a 4-3 vote that the ordinance violated the free speech of the two women by compelling them to create works that violated their religious beliefs and objections.

In it’s opinion, the majority wrote:

The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs’ right to express their beliefs about same–sex marriage by telling them what they can and cannot say. And to justify this action, both the City and the primary dissent claim that if we dare to allow Plaintiffs to express their beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of theOld South.

But casting Plaintiffs’ free speech and exercise rights in such a cynical light does grave harm to a society. As Justice Jackson observed in Barnette, “[s]truggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men,” but, inevitably “those bent on its accomplishment must resort to an ever-increasing severity.” Barnette, 319 U.S. at 640. We would be wise to heed his warning about government efforts to compel uniformity of beliefs and ideas:

[a]s governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . . Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. Id. at 641.

The Arizona Supreme Court went further:

Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record. See Appendix 1. We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance.

That’s perfect as far as we are concerned. If Brush & Nibs wants to create paper, or artwork or “fill in the blank” invitations and have them on display for sale, you shouldn’t (and we would argue can’t) say “you can’t purchase them because you are ……”

Yet artistic expression by its very nature is different. It has to be. It conveys a message more than just words on a page. In this case, the custom invitations convey more than just a time and place message, but a celebration of marriage.

The Arizona Supreme Court has rightfully decided that the government cannot compel people to create messages and works of art that are contrary to their beliefs. To do so is a violation of the the First Amendment.

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