Jail time for Phoenix artists who disagree with government?

PHOENIX – Alliance Defending Freedom attorneys representing a Phoenix art studio that specializes in hand-painting, hand-lettering, and calligraphy for weddings and other events filed suit in state court Thursday to challenge a city ordinance that forces the studio’s two young female owners to use their artistic talents to promote same-sex ceremonies. The ordinance also forbids the studio, Brush & Nib, and its proprietors from publicly expressing their Christian belief that marriage is the union of one man and one woman or explaining why they hold to that time-honored view.

“Artists shouldn’t be threatened with jail for disagreeing with the government,” said ADF Senior Counsel Jeremy Tedesco. “The government must allow artists the freedom to make personal decisions about what art they will create and what art they won’t create. 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 lawsuit is known in legal circles as a “pre-enforcement challenge,” a lawsuit that allows citizens to challenge a law—in this case, a law that threatens First Amendment freedoms—before the government enforces it against them. Organizations such as the American Civil Liberties Union and Planned Parenthood routinely file such lawsuits against laws they oppose.

For example, in 1998, the ACLU filed a pre-enforcement challenge to a New Mexico law two months before it even went into effect. The law banned transmitting material harmful to minors, such as pornography, via computer. In 2013, Planned Parenthood of Wisconsin filed a pre-enforcement challenge against a law on the day that the governor signed it, three days before the law went into effect and before the law had been enforced against anyone. The law required abortionists to have admitting privileges at a nearby hospital.

The complaint and accompanying motion for preliminary injunction in Brush & Nib Studio v. City of Phoenix that ADF attorneys filed Thursday in Maricopa County Superior Court says the city ordinance runs afoul of Arizona’s Free Speech Clause and Free Exercise of Religion Act. Specifically, the suit challenges Phoenix City Code Section 18.4(B), a non-discrimination ordinance which the city has construed to force artists like the owners of Brush & Nib to create objectionable art, even though they decide what art to create based on the art’s message, not the requester’s personal characteristics.

“Phoenix has already investigated another business for declining to promote a same-sex wedding ceremony for religious reasons and issued a formal report saying [the ordinance] requires businesses like Brush & Nib—those that create expression—to promote same-sex wedding ceremonies if they promote opposite-sex wedding ceremonies,” the ADF complaint explains.

“Thus, whether public accommodations serve sandwiches or create custom art, Phoenix treats them exactly the same…,” the ADF preliminary injunction brief adds. “By forcing Brush & Nib to create art for same-sex wedding ceremonies, [the ordinance] violates a cardinal free speech principle: speakers have the right to choose the content of their own message.”

The Phoenix ordinance also prohibits businesses, including artists, from communicating any message publicly that would make someone feel “unwelcome” based upon the person’s sexual orientation, gender identity, or any one of a number of other characteristics, thus preventing many artists from explaining their position on marriage publicly without risking up to $2,500 fines and six months in jail for each day the artist violates the ordinance.

“We simply value art too much to let Phoenix invade the artistic process as if Phoenix were regulating widgets…,” the ADF brief contends. “And make no mistake. Phoenix is playing favorites. It allows artists to speak and create in favor of same-sex marriage yet threatens to incarcerate artists if they speak or create only for opposite-sex marriage. We should all be concerned when the government tries to eradicate a particular idea by silencing adherents and forcing dissenters to profess orthodoxy. When the government manipulates the artistic marketplace and commandeers artists’ minds to squelch an idea, no idea is safe. Everyone eventually loses.”

“Every American, including artists, should be free to peacefully live and work according to their faith without fear of punishment,” said 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.”

• Pronunciation guide: Tedesco (Tuh-DESS’-koh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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