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Freedom of Christian artists defended in ERLC filing

WASHINGTON (BP) — The Southern Baptist Ethics & Religious Liberty Commission has urged the Arizona Supreme Court to protect the freedom of two artists to operate their business in keeping with their Christian beliefs.

The ERLC, joined by eight other parties, filed a friend-of-the-court brief Dec. 20 requesting the state’s justices reverse a lower court’s support for a Phoenix ordinance requiring Joanna Duka and Breanna Koski to use their painting and calligraphy business for same-sex weddings. The owners of Brush & Nib Studio in Phoenix contend the law forces them to communicate a message in violation of their faith.

Oral arguments before the Arizona high court are scheduled for Jan. 22. The case is one of several in the courts that involve the clash between the legal status of same-sex marriage and the rights of business owners who have declined to offer their services for gay weddings.

The Phoenix ordinance prohibits “places of public accommodation” such as Brush & Nib Studio to refuse service based on multiple categories, including “sexual orientation” and “gender identity or expression.” The law also bans owners from displaying on a website or by other means its unwillingness to provide services because of any of these classifications.

In challenging the ordinance before it was enforced against them, Duka and Koski said the city’s interpretation of its law not only violates their religious freedom but unlawfully restricts their artistic expression. They said they serve people regardless of sexual orientation but will not provide services for same-sex marriages.

Travis Wussow, the ERLC’s general counsel and vice president for public policy, told Baptist Press, “Protecting the freedom to live according to one’s conscience is central to government’s responsibility toward its citizens.

“As Christians who are called to love our neighbors, we oppose all forms of discrimination and bullying, but this particular case shows that the City of Phoenix’s ordinance does much more than is advertised,” Wussow said in written comments. “We need to all work for a society that respects people with all different viewpoints.”

In June, a three-judge panel of an Arizona Court of Appeals upheld a lower court’s summary judgment in favor of the city, ruling that Duka and Koski have failed to show the law “substantially burdens their religious beliefs by requiring that they provide equal goods and services to same-sex couples.”

Duka and Koski cannot “use their religion as a shield to discriminate against potential customers,” the appeals court said in its ruling. “Although providing the same goods and services to same-sex couples might ‘decrease … the satisfaction’ with which [Duka and Koski] practice their religion,” the court stated that “this does not, a fortiori, make their compliance with [the ordinance] a substantial burden to their religion.”

In their brief supporting Duka and Koski, the ERLC and its allies say:

— Business owners who believe in male-female marriage should not be maligned because of their faith.

— Religious exercise is not limited to the home or place of worship.

— The state should not be permitted to punish a business because of its owners’ beliefs.

The brief stated that the U.S. Supreme Court in recent opinions involving gay marriage has said individuals and organizations should be able to maintain their constitutional right to practice their religious belief that marriage is limited to a man and a woman. This case gives the court a chance to elaborate “on how government must respect the dignity interests of consumers while also respecting the dignity of sincere religious believers,” the brief contends.

The brief urges the court “to recognize and reaffirm the fundamental role that faith plays in the workplace.”

“Courts have never conditioned an individual’s constitutional rights to free expression and free exercise on that person’s willingness to keep her faith under a bushel basket and not engage in commerce,” the brief says.

The city’s effort to use government power to coerce religious adherents and their communities “to choose between violating their deeply held beliefs or withdrawing from the public square entirely … is to needlessly penalize people of faith, to wound the country’s long tradition of celebrating and protecting religious exercise, and to depress the fundamental pluralism that motivated our country’s founding,” according to the brief.

The brief’s author — Michael Whitehead, a lawyer in suburban Kansas City, Mo., and a Southern Baptist — told BP in a written statement that Duka and Koski work with everyone but don’t promote every message.

“Joanna and Breanna say they cannot approve in their artistry what God has disapproved,” Whitehead said. “It was important that the ERLC and others stood up for these two young women who have refused to bow the knee to the city’s coercive ordinance. Mutual respect includes respecting rights of conscience of people of faith.”

Jonathan Whitehead -– also a Southern Baptist lawyer in the Kansas City area and Michael’s son — helped write a brief in support of Duka and Koski on behalf of members of the Arizona legislature. He is on the ERLC’s board of trustees.

Penalties for each day of a violation could reach six months in jail, $2,500 in fines and three years of probation.

Others signing onto the brief with the ERLC were the Jewish Coalition for Religious Liberty, Arizona Catholic Conference, Association for Biblical Higher Education, Association of Christian Schools International, Compassionate Counselors Inc., Northwest Christian School in Phoenix; Christ’s Community Church in El Mirage, Ariz.; and Calvary Chapel in Farmington, N.M.

Among the organizations that have supported the city of Phoenix in the case are the American Civil Liberties Union and Lambda Legal Defense and Education Fund, a leading advocate for gay rights.

Alliance Defending Freedom lawyers are representing Duka and Koski in the case, which is Brush & Nib Studio v. City of Phoenix.