Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.
—Benjamin Franklin—
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
—the First Amendment to the Constitution of the United States of America—
Key point: You show me someone working to thwart free speech and freedom of expression, and I’ll show you either a tyrant or an aspiring tyrant.
Reports of three recent victories for religious liberty have been welcome news to Christians and others who believe tolerance in society must to be a two-way street. Significantly, Alliance Defending Freedom (ADF) has been at the center of each case. The first and the third items are about artistic expression through video and art, and the middle case is about clients’ rights. All are about the freedom to follow one’s conscience and deeply held religious beliefs.
Video and Film
On August 23, 2019, news came that the Eighth Circuit Court of Appeals ruled in favor of Minnesota videographers Carl and Angel Larsen. Through their business, Telescope Media Group (TMG), Carl and Angel wish to tell stories about marriage. They are Christians and believe marriage is, and can only be, the sacred, lifetime union of one man and one woman.
Telescope Media Group exists to glorify God through top-quality media production.
—Purpose and Vision Statement, Telescope Media Group—
Unfortunately, the Larsens’ deeply held religious conviction about marriage runs afoul of a state law. According to Minnesota state officials, the law requires venders like the Larsens who offer their services for weddings that celebrate the union of one man and one woman to also offer those services to same-sex couples for their “marriage” ceremonies. The penalties for refusing to do so would be steep; they would involve fines and even jail time. We met the Larsens previously in a post dated March 9, 2019. View again (or for the first time) a one-minute Alliance Defending Freedom video that tells the their story.
Understanding not only the conflict between the Larsens’ consciences and the law, but also the conflict between the law and the First Amendment, Alliance Defending Freedom filed on behalf of the couple
a pre-enforcement challenge,…a lawsuit [initiated] before entering the wedding field, seeking a court order that says Minnesota cannot threaten them with severe penalties and jail time if they exercise their First Amendment right to decline to promote a message with which they disagree.
Until the court order came, the Carl and Angel refrained from making videos about marriage altogether, except for this video they created to show the court the kind of work they want to do.
A federal district court initially dismissed the case, but with ADF’s help, the Larsens appealed. Although the final word in their legal journey likely hasn’t yet been issued, the Eighth Circuit Court of Appeals now has had its say in the matter. Writing the court’s opinion was David Stras, a Trump appointee who began his service on the Eighth Circuit on January 31, 2018. In language that was “straightforward and sweeping,” the court sided with Telescope Media Group and the Larsens. As John Stonestreet of the Colson Center for Christian Worldview explained in a BreakPoint commentary written by David Carlson,
Judge David Stras, a Trump appointee to the Eighth Circuit Court of Appeals, wrote the court’s decision. The court grounded its decision in First Amendment principles, thereby striking a decisive blow for religious liberty.
“Carl and Angel Larsen wish to make wedding videos,” Judge Stras wrote. “Can Minnesota require them to produce videos of same-sex weddings, even if the message would conflict with their own beliefs? The district court concluded that it could and dismissed the Larsens’ constitutional challenge to Minnesota’s antidiscrimination law. [But] Because the First Amendment allows the Larsens to choose when to speak and what to say,” we reverse their decision.…
In his decision, Judge Stras left no question that creating video content is speech and must be protected. “The Larsens’ videos are a form of speech that is entitled to First Amendment protection,” he wrote. “The Supreme Court long ago recognized that ‘expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.’”
The next question is whether the state can compel someone to promote messages they disagree with. The obvious answer that wasn’t obvious to the state of Minnesota or the Colorado Civil Rights Commission [in its efforts to go after Christian cake artist Jack Phillips] was obvious to Judge Stras: “The Supreme Court has recognized,” he wrote, “that the government still compels speech when it passes a law that has the effect of foisting a third party’s message on a speaker.”
This is very encouraging! The Supreme Court likely will have the last say in the matter, but when it does, it will have to deal with the Eighth Circuit Court’s strong affirmation of the Larsens’ First Amendment Rights—an issue that it has, up until this point, dodged, even as it ruled in Jack Phillips’s favor in 2018.
Client’s Rights
A second piece of good news came on Thursday, September 12 from Corey Johnson, the New York City Council Speaker. After facing threat of a legal challenge from ADF, Johnson indicated the city would repeal its ban on so-called “conversion therapy.” The law, which has been in place since December of 2017, has prohibited therapy citywide that otherwise would help clients of all ages—even adults—overcome unwanted same-sex attraction. Also, it imposed steep fines on counselors who violated it — $1,000 for the first offense, $5,000 for the second, and $10,000 for the third. Dr. Dovid Schwartz, a therapist with a practice in New York and an Orthodox Jew, challenged the law with assistance from ADF. Realizing the ordinance indeed was unconstitutional, New York City Council Speaker Cory Johnson, who himself is gay, reluctantly indicated the city would quickly repeal.
Roger Brooks, ADF senior counsel joyfully declared,
“All New Yorkers and all Americans deserve the right to private conversations, free from government control. By trying to regulate and censor private sessions between an adult and his counselor, New York City directly violated freedom of speech—a core right protected by the First Amendment. The city council appears to have realized its error and correctly concluded that this censorship is unconstitutional. The city council’s move toward repeal is a win for Dr. Schwartz, his patients, and all New Yorkers.”
The city council’s move toward repeal [of its ban on therapy to help individuals overcome unwanted same-sex attraction] is a win for Dr. Schwartz, his patients, and all New Yorkers.
—Roger Brooks, ADF senior counsel—
Unfortunately, a therapy ban was imposed on minors statewide by the New York legislature in early 2019. New York City’s repeal of its ban is great news, but “[w]hat about the free speech rights of minors? What about the patient privacy and autonomy we hear so much about when the subject is abortion, or contraception?” Good questions! Tolerance, as we’ve indicated, should be a two-way street. If it isn’t, it simply isn’t true tolerance! We have a great deal of work to do as we contend for fairness, and yes, authentic justice, in both the therapist’s office and the marketplace of ideas.
Calligraphy and Art
Then, only a few days later—on Monday, September 16—the Arizona Supreme Court issued a ruling that represents a third piece of good news on the religious liberty front. Brush and Nib Studio is a Phoenix-based business owned by artists Breanna Koski and Joanna Duka. They create custom designed artwork to commemorate special events in people’s lives—especially weddings. Here is a sample of their work.
Breanna and Joanna are Christians who believe marriage is, and ought to be, an institution uniting one man and one woman for life. Unfortunately, their convictions put them, and their business, at odds with a Phoenix law. The law stated that businesses like Brush and Nib cannot turn down requests for work celebrating same-sex unions or ceremonies. Further, it would impose fines of up to $2500 per day on each artist for refusing to comply. Moreover, Breanna and Joanna also would be facing the possibility of up to six months in jail.
Seeing what lay ahead, not just for Brush and Nib, but for others as well if the law were not challenged, the two women teamed up with Alliance Defending Freedom. Here’s what we said about the case in June of 2016: “Thankfully, Alliance Defending Freedom works with clients in proactive strategies as well as defensive ones. In this particular case, ADF is standing in opposition to an unjust Phoenix, Arizona law before it is used against these talented business owners.” In other words, just as it did with the case involving Carl and Angel Larsen, ADF filed a pre-enforcement challenge.
The case made its way to the Arizona Supreme Court, which heard oral arguments on Tuesday, January 22, 2019. Earlier, a lower court had permitted the law to stand. As we indicated earlier, Arizona’s high court issued its ruling on September 16. The 4-3 ruling was narrow in terms of votes to uphold it; yet with regard to the main issue in the case—religious freedom as it relates to wedding invitations, marriage, one’s conscience, and the law—the victory was solid. Justice Andrew Gould wrote for the majority. Michael Gryboski of the Christian Post reports that Gould wrote that the city of Phoenix
“cannot apply its Human Relations Ordinance” to force Brush & Nib to “create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs.”
“Duka, Koski, and Brush & Nib… have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act,” wrote Gould.
“Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.”
Gould also wrote, “The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like–minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.”1
The rights of free speech and free exercise, so precious to this nation since its founding, are not limited to soft murmurings behind the doors of a person’s home or church, or private conversations with like–minded friends and family. These guarantees protect the right of every American to express their beliefs in public. This includes the right to create and sell words, paintings, and art that express a person’s sincere religious beliefs.
—Justice Andrew Gould, Arizona Supreme Court, in the majority opinion in Brush & Nib v. City of Phoenix—
John Stonestreet and commentary writer Roberto Rivera of the Colson Center for Christian Worldview appear to be just as excited about this ruling as Stonestreet is about the decision made in favor of the Larsens. Speaking of the ruling on BreakPoint, Stonestreet declared,
This strong language, in addition to the strong language issued by the Eighth Circuit in favor of Christian videographers Angel and Carl Larsen in their case against a Minnesota’s SOGI [sexual orientation, gender identity] law, means that the courts have clarified the sort of protections that speech should have in our society. You might remember that the Supreme Court was hesitant to issue the same sort of sweeping language in Jack Phillip’s case a few years ago, focusing instead on the Colorado Civil Rights Commission’s outright hostility.
I’m glad the court smacked the commission down for their hostility, but the question of speech protection remains, and that makes this Arizona ruling so important. As ADF’s Kristen Waggoner put it, Justice Gould’s opinion included ADF’s arguments “perfectly.”
Objections Are Misguided
Discrimination! cry those who object. This must never be allowed! Yet we must keep in mind that this case is not at all about preventing same-sex couples from getting “married” or preventing them from finding a vendor to fulfill their service requests. It’s about preventing them from coercing another person to celebrate something against his or her conscience and will. When conscience rights are denied to one individual, those rights are threatened for all. In fact, one writer stated that “the LGBT movement’s misguided effort to undermine First Amendment protections will inevitably come back to bite them.”
Thus, the First Amendment isn’t about freedom for some, but freedom for all. For free speech to prevail, all people must be able to say things certain others don’t want to hear—but that’s not all. They also must be able to refrain from saying things certain others desperately want them to say. Otherwise, we’re not talking at all about free speech, but tyranny.
For free speech to prevail, all people must be able to say things certain others don’t want to hear—but that’s not all. They also must be able to refrain from saying things certain others desperately want them to say. Otherwise, we’re not talking at all about free speech, but tyranny.
The Founders of this country never envisioned that government ever should be able to force anyone, against his or her will and conscience, to convey a message just because someone else wants to hear it, or thinks the person to say it.
Likewise, they never envisioned a government that would deny an individual a legitimate, ethical service he or she wants and for which he or she is willing to pay.
Alliance Defending Freedom knows what free speech is and is fighting effectively to defend and preserve it.
Thank God for the work and success of ADF!
Copyright © 2019 by B. Nathaniel Sullivan. All rights reserved.
Note:
1Here are some additional statements from the Arizona Supreme Court’s majority opinion.
The enduring strength of the First Amendment is that it allows people to speak their minds and express their beliefs without government interference. But here, the City effectively cuts off Plaintiffs’ right to express their beliefs about same–sex marriage by telling them what they can and cannot say. And to justify this action, both the City and the primary dissent claim that if we dare to allow Plaintiffs to express their beliefs, we, in essence, run the risk of resurrecting the Jim Crow laws of the Old South.
But casting Plaintiffs’ free speech and exercise rights in such a cynical light does grave harm to a society.…
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.…
The City also claims that the invitations are the customer’s speech, not Plaintiffs’ speech. According to the City, because Plaintiffs include the information requested by the customer, they merely serve as a scribe, or conduit, for the customer’s speech.
This argument is not supported by the record. Duka and Koski are involved in every aspect of designing and creating the invitations, and they retain substantial (if not complete) artistic control over the messages that are expressed in the invitations.…
But more importantly, the fact that the invitations may contain the speech of both Plaintiffs and their customers does not mean that Plaintiffs’ speech is unprotected.…
top image credit: Marker showcasing the text of the First Amendment to the US Constitution, in front of Independence Hall in Philadelphia, Pennsylvania — Photo by Robin Klein
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