Wedding vendors who oppose being forced to use their creative services for same-sex couples, on religious freedom and free speech grounds, have recently received major victories.
Back in October, the Eighth Circuit Court of Appeals ruled that Christian wedding photographers could not be compelled to use their artistic talents to help celebrate same-sex weddings. More recently the Arizona Supreme Court reached a similar conclusion in the case of an artist and calligrapher.
This case involving Joanna Duka and Breanna Koski is similar to multiple other wedding vendor cases. The plaintiffs say they do not discriminate, and that they “happily serve gay customers.” They merely refuse to use their special talents to produce art that they say “advances ideas they find objectionable.”
According to The National Review’s reporting on the precedent-setting case, Duka and Koski operate a limited liability company called “Brush & Nib Studios.” The company’s Operating Agreement declares its beliefs quite clearly, stating explicitly that the company will not create “custom artwork that communicates ideas or messages . . . that contradict biblical truth, demean others, endorse racism, incite violence, or promote any marriage besides marriage between one man and one woman, such as same-sex marriage.”
As with similar cases brought before state and appellate courts, the core question is whether the “custom artwork” at issue constitutes constitutionally protected speech.
If so, then the state’s demand, that the plaintiffs produce art for same-sex marriages, constitutes a form of “compelled speech,” which is among the most egregious forms of First Amendment violations. Compelled speech violates the fundamental principle that “an individual has autonomy over his or her speech and thus may not be forced to speak a message he or she does not wish to say.”
The Arizona Supreme Court held that the plaintiffs’ custom wedding calligraphy constituted “pure speech.” To wit:
“Each custom invitation created by Duka and Koski contains their hand-drawn words, images, and calligraphy, as well as their hand-painted images and original artwork. Additionally, Duka and Koski are intimately connected with the words and artwork contained in their invitations . . . For each invitation, Duka and Koski spend many hours designing and painting custom paintings, writing words and phrases, and drawing images and calligraphy. Moreover, they insist on retaining artistic control over the ideas and messages contained in the invitations to ensure they are consistent with their religious beliefs.”
What Does This Ruling Mean?
The court compared the plaintiffs to tattoo artists, individuals who are unquestionably in the business of creating art.
You must understand the court’s position in these cases. This is not discrimination. Refusing to advance a particular message through creative artistic expression is not in any way, shape or form as the refusal to simply “provide a service.” For example, this ruling would not allow a waitress at a restaurant to refuse to serve pancakes to a gay couple. It applies, as in similar cases to “custom works of art.” Similarly, a Christian songwriter could not be forced (compelled speech) to write a custom love song specifically for the marriage of a same-sex couple.
In overruling the lower court’s ruling, the State Supreme Court majority opinion stated:
“Ultimately, the City’s analysis is based on the flawed assumption that Plaintiffs’ custom wedding invitations are fungible products, like a hamburger or a pair of shoes. They are not. Plaintiffs do not sell “identical” invitations to anyone; every custom invitation is different and unique. For each invitation, Duka and Koski create different celebratory messages, paintings, and drawings; they also personally write, in calligraphy or custom hand-lettering, the names of the specific bride and groom who are getting married. In short, Plaintiffs do not create the same wedding invitation for any couple, regardless of whether the wedding involves a man and a woman or a same-sex couple.”\
Whether you consider yourself conservative or progressive, or if you support same-sex marriage or not, you need to see this ruling for what it is — a protection of free speech, and the freedom of artistic expression in America.