A "religious freedom to discriminate" case
2016: Owners of a custom
studio attempt to
overturn Phoenix AZ's human
Part 1 of three parts.
Joanna Duka and Breanna Koski are evangelical Christians who met at a Bible study group and became friends. They found that they shared an interest in calligraphy. During 2015-JAN, they decided to go into business together and open a store in Pheonix, Arizona, called "Brush & Nib Studio." They describe their studio as an:
"... upscale hand-painting, hand-lettering, and calligraphy company that creates and sells customized art, including for weddings." 1
Their studio fits the definition of a "public accommodation:" a company that offers goods and/or services to the general public. All retail stores are a public accommodations. Some municipalities have passed human rights ordinances, and some states & the Federal Government have passed human rights laws that require public accommodations to refrain from discriminating against potential customers on the basis of the customer's religion, gender, skin color, race, etc. Some of these ordinances and laws include sexual orientation and/or gender identity as protected classes of individuals who are protected from discrimination. Decades ago, such discrimination was widespread in the U.S. For example, non-white customers of U.S. restaurants in the South were routinely either refused service or segregated into a back room to eat. Today, such discrimination is viewed as having a serious destabilizing influence on the culture -- in particular against the group being discriminated against.
The Studio's web site states that their:
"Brush & Nib Studio specializes in hand-painting, hand-lettering, and calligraphy for weddings, events, special occasions, business, home decor, and everyday moments. We offer custom and pre-made save-the-dates, wedding invitations, wedding invitation suites, wedding programs, vows, marriage certificates, place cards, escort cards, table numbers, menus, wood signs, glass signs, chalkboard signs, reception decor, party invitations, dinner invitations, birth announcements, graduation announcements, prints, custom cards, stationery, business cards, logos, letterheads, and more. Designs feature watercolor and acrylic art, leaves, florals, color washes, landscapes, classic calligraphy, modern calligraphy, and brush lettering. Fine papers, flat printing, letterpress, foiling, and thermography available." 2
Many of this studio's products are purchased by engaged couples for use in their upcoming wedding. A problem might arise in the future if a same-sex couple were to come to the store to place a custom order for their wedding. The owners have indicated that they would feel compelled to refuse to fill the order because of their personal religious beliefs. They accept the belief -- common among religious conservatives -- that God intends that marriages should be limited to the voluntary union of one woman and one man. This belief is based on about six passages in the Bible. They are commonly referred to as the "clobber passages." Religious and social conservatives often interpret them as condemning same-gender sexual behavior. Religious liberals typically interpret various passages very differently: as condemning:
- Same-gender sexual behavior by a man with an pagan temple prostitute, or
- Two men having sex on a bed that belongs to a woman, or
- Men who have sex with male prostitutes, catamites (boy prostitutes), or male slaves, or
- People who engage in bestiality: inter-species sex.
Perhaps the most beloved of the clobber passages is Romans 1:26-27. It condemns heterosexuals engaging in same-gender sexual behavior because it would be an offense against their basic nature. Some religious liberals interpret that passage as implying a condemnation of persons with a homosexual orientation if they had sex with a person of the opposite sex.
Christian conservative owners of public accommodations are often faced with a conflict between:
- Their negative beliefs towards gay marriages which make them uncomfortable about producing goods and services for such weddings, and
- The passages in the Bible's Christian Scriptures which require them to follow the Golden Rule. That is, for them to treat their customers as they would wish to be treated by their customers, and thereby meet all their customers' needs.
A lawsuit to overturn the human rights ordinance in Phoenix, AZ:
In recent years, there have been a handfull of widely discussed refusals by public accomodations to supply goods and services to engaged same-sex couples for their wedding. In each case, they involved a complaint by the potential customers to the city or state human rights tribunal, followed by the tribunal finding the public accomodation guilty, and a subsequent fine. To our knowledge, although some human rights ordinances or laws specify the possibility of a jail sentence, all of the cases to date have involved only a fine.
When conservative media outlets discuss situations when public accommodation have been fined for discriminating against same-sex couples, they often refer to the Sweet Cakes by Melissa case in Gresham, OR. It was a bakery operated by Melissa and Aaron Klein, a conservative Christian couple. They were found guilty of violating the municipaly human rights ordinance, and fined the enormous sum of $135,000. The Kleins' case was mentioned in connection with the "Brush & Nib Studio" situation. What the conservative media never seems to mention is that the Kleins' later used crowd funding to raise money to pay the fine. They raised hundreds of thousands of dollars, and ended up making a profit of over $300,000 on their decision to discriminate. 9,10
The Phoenix case is different. As of early 2016-DEC, there is no evidence that the owners of the "Brush & Nib Studio have actually refused an order by a same-sex engaged couple. From their statements, it would seem that if the order were for hand-painting, hand-lettering, or calligraphy for:
"... events, special occasions, business, home decor, and everyday moments ...,"
then they would be pleased to fill the order, irrespective of the sexual orientation of their customer(s). However, they have taken the position that they would be unwilling to violate their sincere religious beliefs by filling such an order by a same-sex couple if it involves a product for their wedding. Often, Christian store owners feel that if they fabricated an item for a wedding, many people would interpret that as showing their support for all same-sex weddings in principle.
They owners of the Brush & Nib Studio decided to take a pro-active stance against Phoenix' human rights city ordinance. During 2016-MAY, they sued the city in an attempt to overturn the ordinance so that they would never be faced with legal action if they refused a request to create a custom-made product for a wedding by a same-sex couple. They approached the Alliance Defending Freedom for legal support. It is a legal defense group that has been very active in representing conservative Christians who want to convert their religious beliefs into religious actions by discriminating against some of their customers
Jonathan Scrugs, an attorney for the Alliance said:
"The pair willingly serve and will create art for anyone, but they cannot create art promoting certain messages and ideas. For example, Brush & Nib doesn't create art that demeans others, promotes racism, or objectifies the female body. They also do not create art that violates their [conservative] Christian beliefs about marriage." 4
The Family Research Council (FRC) is a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 3 They published a "Washington Update" article on the "Brush & Nib Studio," which criticizes human rights ordinances and legislation, saying that they are:
"... un-American. No one should have to give up their constitutional rights because they're artists or business owners -- or in this case, both. It also exposes exactly what this debate is all about: forced acceptance. When there are plenty of other options for same-sex wedding invitation [with other suppliers ([as well as for] cakes, flowers, dresses, and reception sites), why should liberals be able to use the power of government to force Christians to participate? 1
That is something like telling a black person decades ago to accept the discrimination by some restaurants because they could always shop around and find another restaurant -- one that serves non-whites.
The FRC report also says:
"... the city of Phoenix seems determined to give Joanna and Breanna a similar choice: "go to jail, forsake their beliefs, or shut down their business." 1
This sentence seems to be lacking in accuracy:
- To our knowledge, no case before a tribunal in the U.S. involving denial of service for a same-sex wedding has ever resulted in a jail sentence.
- The owners don't have to "forsake their beliefs." They can still believe that gay marriage should not be legal in the U.S. However, they might feel a moral obligation to serve the customers because of the Golden Rule and/or because they feel a legal obligation to follow the city's democratically created ordinance.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Stationery Company Invites Controversy with Beliefs," Washington Update report, Family Research Council, 2016-DEC-05, at: http://www.frc.org/
- "Brush & Nib," has its web site at: www.brushandnib.com
- David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
- Jonathan Scrugs "Attorney explains why Phoenix artists are suing rather than create art for same sex weddings," The Arizona Republic, 2016-JUN-08, at: http://www.azcentral.com/
- David Cary Hart, "And so it begins - ADF starts the spin re Brush & Nib Studio, "
- "Brush & Nib Studio," Alliance Defending Freedom, 2016, at: http://adflegal.org/
- "Religious artists file lawsuit over Phoenix LGBT non-bias law," The Arizona Republic, 2016-MAY-13, at: http://www.azcentral.com/
- "Court Won’t Temporarily Suspend Phoenix Ordinance, Artists May Appeal," Arizona Daily Independent, 2016-SEP-20, at: https://arizonadailyindependent.com/
- Valerie Richardson, "Sweet Cakes by Melissa crowdfunder breaks record with $352K," Washington Times, 2015-JUL-14, at: http://www.washingtontimes.com/
- Nigel Jaquiss, "Sweet Cakes by Melissa Owners Defying Order to Pay $135,000 to Lesbian Couple Who Wanted a Wedding Cake," Wllamette Week, 2015-SEP-29 at: http://www.wweek.com/
- John Kennedy, "Wedding Invitation Biz Can't Block Phoenix Anti-Bias Law," Law360, 2016-SEP-20, at: http://www.law360.com/
- "Brush & NIb Studio LC," Court of Appeals, at: 1 CA-CV 16-0602 This is a PDF file.
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Copyright © 2016 by Ontario Consultants on
Original posting: 2016-DEC-07
Latest update : 2016-DEC-07
Author: B.A. Robinson