BLOGPhoenix Law Gives Officials Right to Decide What Is and Isn’t Artistically Acceptable

By Alan Sears Posted on: | May 19, 2016

Sometimes, the best defense is a good offense.

In legal terms, we call that a “pre-enforcement” challenge – filing a lawsuit specifically to challenge a unconstitutional law before government bureaucrats try to enforce it. Instead of waiting for the legal boom to be lowered – fines, jail sentences, etc. – we try to do something about removing the boom.

A good case in point: Phoenix, Arizona, where Alliance Defending Freedom is helping two young women who own an art studio stay ahead of the legal wave that has engulfed so many of their fellow Christian artists and business owners around the country. Like certain florists, cake bakers, T-shirt makers, and photographers you may have heard of, these two women, having thought through the Bible’s clear directives on marriage, have decided that lending their creativity in support of same-sex unions and wedding celebrations would dishonor the Lord who gave them their talents in the first place.

Under a Phoenix ordinance, the owners of Brush & Nib studio – which specializes in hand-painting, hand-lettering, and calligraphy for weddings and other events – are compelled to create original artwork for same-sex weddings and other events. They are also forbidden from publicly expressing the Christian teaching that marriage is exclusively the union of one man and one woman, or explaining why they hold to that time-honored view. The penalties for failing to comply with the law include criminal prosecution and possible fines and jail time.

On May 12, ADF attorneys filed suit in state court to challenge that unconstitutional ordinance, which poses a clear threat to essential freedoms protected by the Arizona Constitution’s Free Speech Clause.

“Every American, including artists, should be free to peacefully live and work according to their faith without fear of punishment,” says ADF Legal Counsel Jonathan Scruggs. “Artists don’t surrender their freedom of speech and freedom from coercion when they choose to make a living with their art. Government can’t censor artists or demand that they create art that violates their deepest convictions.”

The complaint and accompanying motion for a preliminary injunction accuse the Phoenix ordinance of violating Arizona’s Free Speech Clause and Free Exercise of Religion Act. The suit also undermines efforts to portray artists like the owners of Brush & Nib as bigots or as artists who decline to create art based on distaste for a given customer’s personal characteristics. In truth, the artists’ objections are to communicating a message with which they disagree.

City officials, though, have no problem blocking a message with which they themselves disagree. The Phoenix ordinance also prohibits businesses, including artists, from communicating any message publicly that “implies” someone is “unwelcome” or “objectionable” based upon the person’s sexual orientation, gender identity, or any one of a number of other characteristics.

In other words, if explaining your side of the argument implies you object to their acts or lifestyle – you’ll just have to be quiet, and let their arguments go unanswered. If you don’t – if you, for instance, try to explain why you don’t believe in same-sex unions – you risk a fine of up to $2,500, and six months in jail for every day you keep violating the ordinance.

How’s that for government intimidation (and rewriting our free speech protections)?

“The government must allow artists the freedom to make personal decisions about what art they will create and what art they won’t create,” says ADF Senior Counsel Jeremy Tedesco. “Just because an artist creates expression that communicates one viewpoint doesn’t mean she is required to express all viewpoints. It’s unjust, unnecessary, and unlawful to force an artist to create against her will and intimidate her into silence.”

The threat isn’t just to people of faith, of course. It’s to artists in general – indeed, to anyone determined to follow their conscience. Are we really going to allow our government to force all artists to create things they don’t want to create, and to stop creating things they do? Does the government get to decide what “good” art is, and isn’t?

“We should all be concerned when the government tries to eradicate a particular idea by silencing adherents and forcing dissenters to profess orthodoxy,” Tedesco says. “When the government manipulates the artistic marketplace and commandeers artists’ minds to squelch an idea, no idea is safe. Everyone eventually loses.”

The number of “losers” is growing every week. Already, people of faith are facing legal showdowns all over the country with government officials who say, “If your faith impacts your business, we’ll shut down your business.” With campus administrators who say, “If your faith inspires your club, your club can’t exist.” With media manipulators who say, “If your faith informs your politics, your politics aren’t welcome at the microphones.” And now, with cultural arbiters who say, “If your faith influences your art, you can’t create.”

What will this increasingly hostile culture say, if they find our faith affects the way we raise our children?

Think about that question, and maybe you’ll understand why more and more Christian business owners and artists are choosing to act first, by filing pre-enforcement lawsuits.

Alan Sears


Alan Sears served as founder of Alliance Defending Freedom, building on his experience as longtime leader of the organization to strengthen alliances, forge new relationships, and develop ADF resources.

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