Our First Amendment freedom is functionally meaningless when it is reduced to the “right” to express government-approved views. Throw in a simultaneous prohibition on all expression that hasn’t received the government’s stamp of approval, and you have the makings of George Orwell’s “1984,” where even beliefs are controlled.
Indeed, to forbid people from articulating beliefs and peacefully acting consistently with those beliefs is, at its core, an attempt to forbid the beliefs themselves. As the Supreme Court has held, “First Amendment freedoms are most in danger when the government seeks to control thought…The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
It’s one thing to have guiding moral principles. It’s another thing entirely to be able to express those principles and allow them to guide your actions. In Phoenix, two artists who together operate a custom art studio, Brush and Nib Studio, are acutely aware of the distinction.
Compelling Expression, One Brush at a Time
In 2015, Joanna Duka and Breanna Koski launched a business based on their shared passions for Christ, painting, hand-lettering, and calligraphy. As their website states, they seek to “announce and commemorate life’s important moments,” which include weddings. As Christians, Joanna and Breanna seek to create art that is consistent with their beliefs, which includes the belief that marriage is between one man and one woman.
Shortly after launching their expressive enterprise, Breanna and Joanna learned that a law in Phoenix requires them to create artwork expressing messages that violate their sincerely held beliefs. This includes artwork celebrating and promoting a same-sex marriage.
While Breanna and Joanna gladly serve all individuals regardless of their sexual orientation, the pair believe that only marriage between a man and a woman is consistent with God’s plan for marriage and, therefore, they cannot in good conscience promote a same-sex marriage through their own artistic expression. The problem is, according to the Phoenix law they must.
Phoenix City Code Section 18.4(B) bans “[d]iscrimination in places of public accommodation.” The city interprets the law as requiring Brush and Nib to create art celebrating same-sex wedding ceremonies because Brush and Nib creates art celebrating opposite-sex wedding ceremonies. This law carries stiff penalties. Joanna and Breanna face up to $2,500 in fines, six months in jail, and three years of probation for each day their studio violates the law.
From Banning to Compelling Action
The law not only seeks to compel Joanna and Breanna’s expression, by forcing them to create art celebrating same-sex wedding ceremonies, it also forbids them from expressing their own beliefs. Specifically, the law prohibits the art studio from publishing any “notice or communication which states or implies…that any [person]…because of…sexual orientation …would be unwelcome, objectionable, unacceptable, undesirable or not solicited.”
Breanna and Joanna will gladly serve individuals of any sexual orientation, but there are certain events or messages that they cannot in good conscience promote or celebrate. There are also certain messages they wish to communicate, including their religious beliefs about God’s design for marriage and how those beliefs affect their art.
But under the law, even a simple statement to this effect on Brush and Nib’s website would be deemed a violation of the law. Even quoting Matthew 19:4-5, or stating “God created marriage as a life-long union exclusively for one man and one woman,” implies that a request to celebrate a same-sex wedding would be “unwelcome . . . or not solicited.”
We Are Not the Government’s Serfs
There is an important and meaningful distinction between a refusal to serve a person and an unwillingness to express a message. Lest you be tempted to accept the argument that Brush and Nib’s work is not expression, consider Breanna and Joanna’s position from a practical standpoint of respect and fairmindedness—or “tolerance,” if you will.
Even setting aside the most basic of First Amendment protections, which include “the choice of what not to say,” do you really think a liberal filmmaker should be forced to conceive of, film, and produce a political ad for a staunch conservative? Or should a liberal photographer be forced to produce a Christmas card for the CEO of the largest conservative legal alliance in the country?
As the Supreme Court noted more than 70 years ago, when the government forces people to express something with which they disagree, it “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” But Phoenix has essentially eliminated the fundamental freedoms of conscience and expression, offering instead the “privilege” to hold and express only the government-favored view and to take only government-approved actions.
This logic is completely contrary to the purpose of the First Amendment. As the Supreme Court noted in the 1989 flag-burning case, Texas v. Johnson, the First Amendment exists to protect unpopular speech: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Joanna and Breanna, represented by Alliance Defending Freedom, asked an Arizona court to protect their religious freedom and freedom of expression. They also asked the court to issue a preliminary injunction banning enforcement of the law while the case moves forward. In September, the court refused to suspend the law.
Brush and Nib has appealed, but for the time being, Breanna, Joanna, and others like them face a two-fold denial of freedom of expression. First, the freedom from compelled speech. The Phoenix law demands that Brush and Nib create custom artistic expression celebrating same-sex marriages. Second, Breanna and Joanna also desire to express their beliefs about marriage between one man and one woman—its beauty and spiritual significance—and how those beliefs influence their art. The Phoenix law strips them of this right as well.
It’s one thing to have a fundamental freedom in theory. It’s another thing entirely to be able to exercise it.