Concerned they may face incarceration over their conscientious religious objection to same-sex marriage, the owners of a Phoenix art studio that specializes in creating original art for weddings and other events has filed a pre-emptive lawsuit challenging Phoenix’s non-discrimination ordinance. The ordinance prohibits businesses and its proprietors from refusing services for same-sex weddings, and even forbids them from publicly stating their objections.

The young owners of Brush & Nib, Breanna Koski and Joanna Duka, both evangelical Christians, say that they “cannot use their God-given talents and imaginations to create art that discredits Him.” The Alliance Defending Freedom (headquartered in the Phoenix suburb of Scottsdale) is representing them in the pre-enforcement challenge, as it’s known legally. It is a common method of challenging government laws that may encroach on constitutional rights.

Although they have not had any complaints about their objections yet, they have reason to expect one, the ADF notes in the complaint. “Phoenix has already investigated another business for declining to promote a same-sex wedding ceremony for religious reasons and issued a formal report saying [the ordinance] requires businesses like Brush & Nib — those that create expression — to promote same-sex wedding ceremonies if they promote opposite-sex wedding ceremonies.”

If convicted, the art studio owners could be fined up to $2,500 per day for each day they are in violation of the law, and sentenced to up to six months in prison.

The discrimination ordinance states in part that public accommodations are prohibited from any distinction being “made with respect to any person based on … sexual orientation, gender identity or expression … in connection with the price or quality of any item, goods or services offered by or at any place of public accommodation.”

It goes on to prohibit businesses from publicly stating their objections:

It is unlawful for any owner, operator, lessee, manager, agent or employee of any place of public accommodation to directly or indirectly display, circulate, publicize or mail any advertisement, notice or communication which states or implies that any facility or service shall be refused or restricted because of … sexual orientation, gender identity or expression … or that any person, because of … sexual orientation, gender identity or expression … would be unwelcome, objectionable, unacceptable, undesirable or not solicited.

In a statement, Phoenix’s mayor Greg Stanton declared, “The Phoenix non-discrimination ordinance protects fundamental civil rights for everyone and we will defend it aggressively.”

The complaint and motion for a preliminary injunction were filed Thursday in Maricopa County Superior Court, alleging violations of Arizona’s Free Speech Clause and Free Exercise of Religion Act.

Unlike some other controversies involving businesses with conscientious religious objections to same-sex marriage, the nature of the art studio’s services involves calligraphy and hand-lettering for wedding invitations and bulletins, so the ordinance also “violates a cardinal free speech principle: speakers have the right to choose the content of their own message,” according to the complaint.

The ADF contends that the city “is playing favorites. It allows artists to speak and create in favor of same-sex marriage yet threatens to incarcerate artists if they speak or create only for opposite-sex marriage.”

Not Settled Legally or Politically

This may not need to be fought out through the legal system. Although Phoenix has a Democratic mayor, Greg Stanton, its city council is a mixture of Democrats and Republicans. Councilman Sal DiCiccio is a savvy conservative who has been able to push back and change Democrat-promulgated policies and regulations.

When Stanton and the Democrats on the council outvoted him to permit a Satanist to give an opening invocation prior to the next meeting, he outmaneuvered them, getting the rules changed to limit to chaplains those who can give the prayer.

If it is fought out in the legal system, the ordinance may well be defeated at the state level. The state’s supreme court is becoming more conservative, due to the recent appointment of conservative libertarian litigator Clint Bolick, and Republican Governor Doug Ducey is expected to sign a law adding two more judges, who will likely be conservative appointments. With the balance tipping to the right, it is unlikely the ordinance would be allowed to stand.

In either case, political or legal, there is a good chance Phoenix’s ordinance harshly punishing businesses for exercising their constitutional freedom of conscience will not last.