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Religious Tolerance logo

A "religious freedom to discriminate" case

2016: Owners of a custom
calligraphy studio attempt to
overturn Phoenix AZ's human
rights ordinance:

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Part 2 of three parts.

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This topic is continued here from the previous essay

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David Cary Hart operates a "slowly boiled frog" web site at The name comes from a myth that if a frog jumps into hot water, it will immediately jump out. However, it was once believed that if a frog jumps into room-temperature water it will stay there, be cooked, and die if the temperature of the water is gradually increased towards boiling. The site chronicles: "the pursuit for LGBT equality and gun sanity." He criticized the Alliance Defending Freedom (ADF) by saying:

"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. ..." 1

ADF stated that the owners of the Studio were left:

"... with an impossible choice. They didn’t want to violate the law. They didn’t want to go to jail and pay $2,500 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.

So Joanna and Breanna took the only viable option left. In May 2016, Alliance Defending Freedom filed a lawsuit on their behalf against the city of 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." 2

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Their lawsuit stated, in part:

"As for these beliefs about marriage, Joanna and Breanna believe that God created marriage as a union exclusively between one man and one woman. And they cannot create art for events that celebrate any other kind of marriage, including same-sex marriage." 3

Jeremy Tedesco, an attorney for ADF who is representing the studio owners issued a news release saying:

"Artists shouldn’t be threatened with jail for disagreeing with the government. The government must allow artists the freedom to make personal decisions about what art they will create and what art they won’t create." 3

Webmaster's comment: [bias alert]

Artists are normally free to make decisions freely about what art they will or will not create. However, if they open a for-profit business, and offer to create art to meet the needs of their customers, then they become a public accommodation, and are not allowed under human rights laws or ordinances to discriminate against customers who are in protected groups.

Brendan Mahoney is an LGBT advocate, attorney, and co-author of Phoenix's law. He said:

"Fifty years ago, people argued that their religious beliefs protected them and allowed them to refuse to serve blacks at white-only lunch counters. The only difference today is now we’re talking about gay people." 3

He noted that no person or business had been penalized under Phoenix human rights ordinance. He continued:

"That must be bad for Alliance Defending Freedom, which makes its money promoting its anti-gay agenda. Because the Phoenix law has worked so well, ADF has to resort to drumming up a hypothetical case off of which to fund raise."

Mayor Greg Stanton issued a statement, saying:

"The Phoenix non-discrimination ordinance protects fundamental civil rights for everyone and we will defend it aggressively." 3

A little noticed fact is that by banning discrimination on the basis of sexual orientation, the city is protecting persons with a homosexual, bisexual, or heterosexual orientation -- that is, everyone.

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2016-SEP-19: Judge rules on the Brush & Nib Studio v. City of Phoenix case:

There lawsuit is referred to as a "pre-enforcement challenge." They allow citizens to attempt to overturn a law or city ordinance in the expectation that they may be charged under it at some time in the future. The ordinance is Phoenix City Code Section 18-4(B).

Legal Counsel Jonathan Scruggs of the Alliance Defending Freedom said:

"Artists shouldn’t be threatened with jail time and other penalties simply for making art that is consistent with their beliefs. That’s why we asked the court to suspend enforcement of the Phoenix ordinance against our clients while their case goes forward."

Counsel Scruggs seems to have this backwards. If the Brush & Nib Studio owners had been charged, it would be for refusing to make art, not for making art.

The City filed a motion in court to have the case dismissed. This was rejected the Judge Karen A. Mullins of the Superior Court of Arizona.

The "challenge" itself was also rejected by Judge Mullins. She clearly differentiated between freedom of religious belief & expression, and the freedom to act on that belief in order to discriminate against others. Religious beliefs and actions are often equated and confused with each other in this type of case. She clarified the scope of the ordinance by saying that:

"The City ordinance does not require Plaintiffs to say anything, and Plaintiffs remain free under the ordinance to express their views of same-sex marriage and same-sex sexual activity. The ordinance only precludes Plaintiffs from refusing to sell products or provide services to same-sex couples and from stating that same-sex couples are unwelcome as customers. The selling of wedding invitations here is the equivalent of allowing the military access to a college campus in Rumsfield; it is an act devoid of expression.

[In the Rumsfield case] the United States Supreme Court clarified the difference between regulating conduct and regulating free speech. In that case, a statute required colleges to allow military recruiters on their campuses to the same extent other recruiters were allowed, or risk a loss of federal funding. The plaintiff law school alleged that by forcing it to allow the military recruiters on campus, it was being compelled to express the views of the military recruiters even though it disagreed with those views. The Supreme Court disagreed that the act of allowing the military recruiters on campus was 'expressive'."

"... a party who raises a religious exercise claim or defense under FERA [the Free Exercise of Religion Act] must establish three elements:

1. that an action or refusal to act is motivated by a religious belief,

2. that the religious belief is sincerely held, and

3. that the governmental action substantially burdens the exercise of religious beliefs. ..."

"Once the claimant establishes a religious belief that is sincerely held and substantially burdened, the burden shifts to the state to demonstrate that its action furthers a 'compelling governmental interest' and is '[t]he least restrictive means of furthering that compelling governmental interest.'

The Free Exercise Clause [in the First Amendment to the U.S. Constitution] recognizes the right of every person to choose among types of religious observance free of government compulsion. To establish a violation of the clause, a litigant must show that the challenged government action has a coercive effect that operates against the litigant’s practice of his or her religion. ... The case here, however, does not involve religious activity as contemplated by the Free Exercise Clause. Thus the Court need not examine whether the asserted state interest justifies the 'burden' imposed, because the Plaintiffs in this case have failed to assert even an incidental burden on the exercise of their religion." 4 [Emphasis was not in the original.]

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. David Cary Hart, "And so it begins - ADF starts the spin re Brush & Nib Studio, "
  2. "Brush & Nib Studio," Alliance Defending Freedom, 2016, at:
  3. "Religious artists file lawsuit over Phoenix LGBT non-bias law," The Arizona Republic, 2016-MAY-13, at:
  4. "Court Won’t Temporarily Suspend Phoenix Ordinance, Artists May Appeal," Arizona Daily Independent, 2016-SEP-20, at:

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How you may have arrived here:

Home > Religious Freedom > Freedom to Discriminate > here

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Home > "Hot" religious topics > Homosexuality & Bisexuality >Freedom to Disc.> here

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Copyright © 2016 by Ontario Consultants on Religious Tolerance
Original posting: 2016-DEC-07
Latest update : 2016-DEC-07
Author: B.A. Robinson

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