Manufacturing Religious Freedom Martyrs
By Stephanie Russell-Kraft
June 1, 2016
On May 12, the conservative advocacy group Alliance Defending Freedom introduced the newest Christian martyrs in the fight over LGBT anti-discrimination laws: Breanna Koski and Joanna Duka, the two young owners of the Phoenix-based stationary and calligraphy studio, Brush & Nib.
With the help of ADF counsel, the two women filed a so-called “pre-enforcement challenge” arguing they could face months of jail time for violating a Phoenix ordinance that prohibits businesses from discriminating on the basis of “race, color, religion, sex, national origin, marital status, sexual orientation, gender identity or expression, or disability.” The ordinance, they argue, forces them to violate their duty as artists who serve God.
The lawsuit, and the ADF’s accompanying press campaign, is a textbook work of spin that turns a complete non-issue into a high-stakes drama pitting two innocent (pretty, white) women against the oppressive forces of liberal government overreach.
Let’s start with the title of the ADF’s press release, which coyly asks, “Jail time for Phoenix artists who disagree with government?” So, you might wonder, did the women refuse to serve a gay couple? Were they found to have violated the ordinance? Have they been locked up? No, no, and, no.
According to the complaint, the women are scared they *might* be asked to design cards for a same-sex wedding. Now, if that were to happen, and if they refused, they might be slapped with a discrimination claim from the Equal Opportunity Department. If the business failed to resolve that claim, they might be criminally prosecuted. If found guilty in a criminal prosecution, they could, and we’re getting really hypothetical at this point, face jail time for a misdemeanor.
The lawsuit even acknowledges the low risk the women face. In a section titled “Worst Fears Confirmed” the calligraphy studio owners cite a wedding business that was accused of discrimination in 2015. As it turns out, the Equal Opportunity Department found insufficient evidence of discrimination against that business and nothing happened. No fine, no jail time.
But more to the point, the women have not been threatened with any punishment and have not even, to the best of my knowledge, violated the ordinance.
The problem is that once the victim language is out there, it’s hard to stop.
On May 16, the Daily Signal ran a story titled “Phoenix Artists Threatened With Jail Time If They Don’t Serve Gay Weddings.” The hypothetical of the punishment is buried below the fold.
Two days later, the Christian Broadcasting Network headlined its story of the duo: “Artists Fighting Back to Avoid Jail Time For Refusing Gay Wedding.” Remember that:
1. The artists filed the lawsuit, so they’re fighting, not fighting back.
2. No one has sentenced them to jail.
3. They haven’t been asked to serve a gay wedding. Again, the author eventually, sort of, gets to these points, but not until the fifth and sixth paragraphs, long after most readers likely clicked away.
As in most cases like this, the particulars barely even matter. As far as I know, no individual has yet served jail time for violating an anti-discrimination ordinance like the one in Phoenix. In fact, many of the other religious freedom martyrs, like the owners of Idaho wedding chapel The Hitching Post, have filed similar lawsuits not because they were jailed or because their businesses were restricted, but because they feared they might be.
In the Hitching Post’s case, Coeur D’Alene city officials specifically said they never threatened any legal action against the owners. But the narrative of the persecuted small business fighting an overreaching government hasn’t gone away, just like the image of the two suffering Phoenix artists is likely to stick.
Stephanie Russell-Kraft covered securities litigation and regulation, as well as general legal news, for Law360, a daily news wire for attorneys. Her writing has appeared in The Atlantic, Fusion, Jezebel and AlterNet.