A preemptive strike strategy in the religious liberty fight

Taking a new tack in the battle for religious liberty, artists in Colorado and Arizona are not waiting to be sued for violating so-called nondiscrimination laws. Through preemptive legal strikes, the business owners hope to clear the landscape of laws requiring them to violate their Christian convictions to stay in business.

A judge dismissed the Arizona lawsuit, Brush and Nib Studios v. City of Phoenix, on Sept. 16 but the company plans to appeal. A hearing for the Colorado lawsuit, 303 Creative v. Elenis, has not been scheduled. If successful, the pre-enforcement lawsuits would set a precedent giving artists in those states the freedom to open, expand, or continue work in existing businesses without fear of being sued for declining service related to same-sex weddings.

“If you lose that case, you are staring down the penalties that those laws allow,” Jeremy Tedesco, Alliance Defending Freedom (ADF) senior counsel, told me. ADF represents the plaintiffs in both cases.

Pre-enforcement lawsuits challenge the applicability of a law before it is enforced against the challenger. None of the plaintiffs have been sued for noncompliance. Lawyers filed a similar pre-enforcement lawsuit to protect an Iowa church from application of that state’s nondiscrimination law.

Penalties for violating so-called nondiscrimination laws can include criminal convictions, jail time, fines, and “reeducation” training.

Lorie Smith has operated her one-woman business, 303 Creative, for more than 10 years in Colorado. She wants to expand her business to include web design for couples preparing for their weddings and, according to the lawsuit, “celebrate and promote God’s design for marriage as an institution between one man and one woman.”

But Colorado law forbids Smith from operating her new enterprise based on her Christian convictions or from even publicly stating—via her website—her biblical views on marriage.

“NO place of public accommodation may legally post a sign which states or implies ‘We reserve the right to refuse service to anyone,’” the Colorado Civil Rights Commission stated in a 2015 report.

Aware of the travails of bakers and florists in her own state and across the country, Smith knew she faced a likely lawsuit if she expanded her business. So she chose to challenge the law instead.

In Arizona, plaintiffs Joanna Duka and Breanna Koski also saw the handwriting on the wall. The two women are sole proprietors of the fledgling business Brush and Nib Studio, where they use their skills as painter and calligrapher to create hand-made notices, including wedding invitations. They know their Christian convictions about marriage puts a big target on their backs.

Failure to comply with the Phoenix law could result in a Class 1 misdemeanor conviction with a maximum penalty of up to $2,500 in fines, six months in jail, and up to three years probation.

In May, Duka and Koski sued the City of Phoenix to forestall any lawsuits brought against them based on the city’s Human Relations Ordinance, which forbids discrimination based on sexual orientation and gender identity and expression. On Sept. 16, Maricopa County Superior Court Judge Karen Mullins dismissed their case and belittled their work and faith.

“It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation,” she wrote. “Moreover, there is nothing about the creative process itself … that conveys any pledge, endorsement, celebration, or other substantive mandated message by plaintiffs in regard to same-sex marriage.”

Mullins dismissed the women’s assertion that their creative efforts in crafting each uniquely designed wedding announcement “constitute expressive speech.” She also said nothing in the ordinance prevents their participation in the “customs of their religious beliefs,” such as attending church and religious activities.

On Sept. 20, ADF filed an appeal with the Arizona Court of Appeals. On the same day in Colorado, Smith filed two lawsuits—one asks for relief from the state nondiscrimination law while the other asks the court to suspend application of the law while the lawsuit moves forward.

Smith understands legal precedence is stacked against her. A homosexual couple sued Colorado bakery owner Jack Phillips for refusing to use his artistic talents to create their wedding cake, and he has lost his case at every level. It’s now on appeal to the U.S. Supreme Court.

The state commission’s unequal application of Colorado’s law benefits Smith, Tedesco said. Following Phillips’s case, three bakeries refused to create cakes with messages supporting traditional marriage. The commission declared they had the right to do that. Tedesco agreed, saying the same ruling should have been applied to Phillips.

“What we’re dealing with is an incredibly powerful narrative with regard to same-sex marriage,” Tedesco said. “If your viewpoints are unpopular you can be compelled [to speak].”

In her dismissal of the Phoenix case, Mullins disparaged the creative process involved in crafting hand-made wedding invitations, reducing the detailed process to the simple inscription of two names on a piece of paper.

But even that, Tedesco said, is compelled speech: “The names do change the meaning, don’t they?”