It’s been a good few weeks for free speech — at least for most of the country.
In late June, the U.S. Supreme Court issued two landmark rulings. One said California cannot compel pro-life pregnancy care centers to advertise for abortions; the other said Illinois cannot compel government employees to pay for union advocacy with which the employees disagree. Not everyone embraced these rulings, but everyone should.
After all, no one wins when the government can compel you to speak or pay private parties to promote ideas that violate your core convictions. A government that can compel pro-lifers to promote abortion today can compel abortion advocates to denounce it tomorrow.
California promoted its law involving abortion advertising as “forward thinking,” but Justice Anthony Kennedy, in writing the court’s opinion, saw it differently. If you want to be “forward thinking,” he said, better “to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.” Ouch.
Arizonians historically have embraced Kennedy’s sentiment. This state has long nurtured an independent streak and frowned at any government effort to tell us what we must say or celebrate. That’s why the recent decision in Brush & Nib Studio v. Phoenix is so out of character.
An Arizona appellate court ruled that Phoenix could force an art studio run by two Christian artists—Joanna Duka and Breanna Koski—to write words and create art celebrating same-sex marriage. To reach that conclusion, the court had to decide that writing words for wedding vows, signs, and invitations is “not inherently expressive” … i.e., not protected speech under Arizona’s Constitution.
Strange. The U.S. Supreme Court has found nude dancing and abstract art to be speech under the First Amendment. And the Arizona Supreme Court has said that drawing tattoos on clients is protected speech. So, spin on a pole, spill some paint on canvas, or draw some lines on skin and you “speak.” Write words celebrating your view of marriage on paper and you say nothing at all.
What’s more, the Arizona appellate court actually downplayed the danger of compelling speech, saying that compelling Joanna and Breanna to write words contrary to their religious beliefs would at most “decrease … the satisfaction with which [they] practice their religion.”
That’s quite an understatement. As the U.S. Supreme Court said in the union fees case, compelling speech violates a “cardinal constitutional command” and would be “universally condemned” in most contexts because “[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning…” We’re a bit beyond having a bad day.
To be sure, the Arizona appellate court understood the issue in terms of stopping discrimination based on sexual orientation, which the text of the law in question does. But look beyond what the ordinance says to how Phoenix is using it. Joanna and Breanna do not discriminate against anyone. They happily create art for people of all walks of life, including those in the LGBT community—providing everything from hand-drawn paintings to handwritten thank-you cards.
They just don’t write words or craft paintings promoting certain message for anyone—whether gay, straight, or anything else. They won’t promote racism, for example, or demean someone’s religion. Or celebrate same-sex marriage. Every client is treated equally. Every message is not.
That means the artists’ case isn’t about who walks in their door but what messages flow from their pen and brush. It’s not about who can get married but what the government can force us to say. Phoenix should no more be compelling Joanna and Breanna to write words celebrating same-sex marriage than it should be compelling a gay web designer to create a church website criticizing same-sex marriage. Free speech should work the same, for all sides.
Phoenix frames their action as necessary to stop discrimination – but then, government officials always sanitize compelling speech in appealing terms. Compelling California pregnancy care centers to advertise abortion was necessary to “promote women’s health.” The union dues requirement was necessary to “protect employee bargaining power.” But move beyond doublespeak and the state is still compelling private citizens to affirm what is not in their minds or in their hearts. Elected officials can always promote women’s health, protect employees, or stop discrimination without forcing private citizens to mouth government-mandated messages.
Which is why Alliance Defending Freedom is asking the Arizona Supreme Court to hear Joanna and Breanna’s case—and confront these important issues. If they do, we may finally see whether protecting freedom of speech and conscience is truly a nationwide trend—or if Arizona is not quite as “forward thinking” as Justice Kennedy urged us all to be.
— Jonathan Scruggs is senior counsel and director of the Center for Conscience Initiatives with Alliance Defending Freedom
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.