Brush & Nib Studio
Image source: Brush & Nib Studio website

Joanna Duka and Breanna Koski owners of Brush & Nib Studio in Phoenix do not need to refuse service to gay couples to enjoy free exercise of their Christian religion any more than they need to turn away Jewish couples or interracial couples or any other marital arrangement that they might disapprove of. They want to refuse service to gay couples in order to demonstrate their disapproval.

By the way do Joanna and Breanna use a questionnaire to ensure
that they are not providing invitations to adulterers or divorcees? What
would they do if the bride is pregnant? Or is it just gay people that
they feel compelled to shame?

One of the reasons that we have nondiscrimination laws in the first place is to preclude public accommodations from choosing which customers they approve of for service. Alliance Defending Freedom, the Christian legal group, is exploiting these two inexperienced and naive business owners but ADF did not find Ms. Duka and Ms. Koski. Duka and Koski found ADF and they are responsible for their own business decisions. Their inexperience is not excuse for bad behavior.

ADF breaks out the silver shovels

ADF has numerous reasons for publicizing these cases including the potential to shape public opinion and to enhance their own image for fund raising purposes. However, it is highly unlikely that they will influence the outcome of litigation and, for the most part, they are preaching to their choir. Yet, despite a full portfolio of cases like this they have yet to win so much as a round.

The pointer to ADF’s latest polemic came in an email and the link is titled “Phoenix Law Gives Officials Right to Decide What Is and Isn’t Artistically Acceptable.” Is anyone really that stupid? According to ADF, Duka and Koski

… had little money. They had no business background. But they did
have a passion – to use their God-given talents to create beautiful
artwork for others. That passion produced Brush & Nib Studio, a
for-profit art studio that creates hand-drawn invitations and paintings
for weddings, businesses, and everyday moments.

As Christian artists, Joanna and Breanna had a simple goal for their
studio: to recreate the beauty God placed all around us and to share
that beauty with others. And this goal made it natural for Joanna and
Breanna to focus on artwork for weddings, one of the most beautiful days
in someone’s life.

You would think that they went into business to honor their god. At least ADF admits that the business is for-profit. Chartreuse is the liqueur made by the Carthusian Monks since 1737. If they were to operate in Phoenix then they must sell their product in accordance with the city’s nondiscrimination laws. Indeed that would be no problem since these monks place no restrictions on how their liqueur is consumed. They just make the stuff. If it is consumed by a couple celebrating their fourth and fifth marriages that is their business. L’chaim!

ADF calls their clients  who are bakers “cake artists” and the owner of a flower shop a “floral artist.” Baking, floral arranging and calligraphy are creative pursuits but they produce nothing that could stand on its own as art in the marketplace. The same is true of Elane Photography, another ADF client that, … lost its case all the way to the Supreme Court. These folks might even be called artists but what they sell is not art.

It is probable that they focus on wedding invitations, not because of the beauty of weddings, but because that is where the market is. The business isn’t part of an orphanage; it is a for-profit enterprise.

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.

Oh the poor dears. Had they only known … What would they have done differently? For the most part over the past eight years or so we (and ADF) have been talking about the same florist, the same two bakers, the same photographer and a couple of caterers. So which “news reports” are they talking about or is this yet another thing that ADF created? And no one has ever forced Christians to “promote” anything.

On April 17, 1990 (26+ years ago) Justice Antonin Scalia (in a moment of temporary sanity) delivered the majority opinion in Employment Division v. Smith ruling that laws of general applicability do not violate the Free Exercise clause of the First Amendment. In other words, there are no religious exemptions to otherwise valid state laws. The notion that selling invitations is promoting anything (other than the exchange of merchandise for money) is intellectually offensive and dishonest. And what these two women are seeking is precisely what Scalia said they cannot have. Scalia’s is the only opinion that counts.

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.

Nobody is going to jail. I know this, ADF knows this and the two calligraphers know this. Perhaps a real lawyer explained how the real world worked. Thereupon they possibly fasted and prayed for guidance — and the law remained as it is. Nobody forced these two people to go into business. If you open a public accommodation in Phoenix then you are required to comply with the city’s nondiscrimination ordinance. Your business license is conditioned on compliance with applicable laws and it was, and is, their responsibility to know what those laws are.

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.

They only fail to comply when they refuse service. Have they done so? Have any same-sex couples asked them for invitations? Compromise? Perhaps they should learn the meaning of the word. We live in a very diverse society. Suppose they decide that they don’t like Muslim weddings either? There is a heavy dose of arrogance with this type of self-righteousness. These two women have a monopoly on religious wisdom when it comes to how they will conduct their affairs.

Most Christians would deduce that they are free to worship and pray as they choose. Making invitations for a same-sex wedding does not connote approval of that wedding, is not participation in that wedding and certainly doesn’t promote sacrilege. Just as providing invitations for a Muslim wedding does not promote Islam. Get a grip on reality. You would think that we were forcing these two women to marry each other.

So Joanna and Breanna took the only viable option left. In May 2016, Alliance Defending Freedom filed a lawsuit on their and Brush & Nib’s behalf against Phoenix. The lawsuit alleged that Phoenix is violating Joanna, Breanna, and Brush & Nib’s rights under the Arizona Constitution and the Arizona Free Exercise of Religion Act by compelling them to create art they object to and by stopping them from discussing their artistic and religious beliefs with others. The lawsuit asked the Arizona court to give Joanna, Breanna, and Brush & Nib the freedom to create artwork consistent with their artistic and religious beliefs and to explain these beliefs to others.

Nobody is stopping these idiots from discussing anything. This is outright dishonesty. The legal issue is best explained with a restaurant. Posting a sign that you don’t serve [fill in the blank] is the same thing as refusing to serve them. In this case it is perfectly lawful to post a notice on their website that they do not approve of same-sex marriage but are committed to serving all customers. It is unlikely that we will bother two bigots with our commerce.

What? Is “bigot” too harsh? Why? Because their discrimination is based on their interpretation of scripture? So was slavery. So was segregation. So were miscegenation laws. These Christian extremists are no different from the white nationalists who worship through the Christian Identity group known as the Church of Jesus Christ-Christian. In our civil society religion does not provide an excuse for discrimination.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.