And yes, that is gum with an “m” not gun with an “n.” [CNN]
I was preparing a post on the case from Idaho in which husband and wife Donald and Evelyn Knapp have pre-emptively sued (complaint, motion for TRO) to prevent the application of the city of Coeur d’Alene’s public accommodation law from being used to require their wedding chapel business, the Hitching Post, to handle same-sex weddings. In the mean time Andrew Sullivan has done a post pulling together most of what I planned to say, so go read that instead.
Sullivan quotes my observation on Facebook:
I will note that I have learned through hard experience not to run with stories from ADF (Alliance Defending Freedom) or Todd Starnes without seeking additional corroboration. As a libertarian, I oppose subjecting this family business to any legal compulsion whatsoever, but it’s also important (as in the Dallas pastors case) to get the facts straight before feeding a panic.
While I hope the Knapps succeed in establishing their exemption from this law, I am still shaking my head at the ADF’s framing efforts, which via Starnes set off a predictable panic about dangers to religious liberty (see also, last week, on the Houston pastors subpoena). In this instance, those efforts amount to something very akin to hiding the ball, including (as cited by Sullivan) the quiet legal revamping of the business onto a religious basis in recent weeks and the silent removal of extensive language on its website that until earlier this month had promoted the chapel as a venue for civil, non-religious wedding ceremonies.
Now, the Knapps are free (or should be, in my view) to change their establishment’s business plan overnight to one that welcomes only ceremonies consistent with Foursquare Evangelical beliefs. But shouldn’t their lawyers be upfront that this is what’s going on? Especially since even sophisticated commentators, let alone casual readers, are construing the city of Coeur d’Alene’s legal position by reference to what its lawyer said back in May, when the Knapps were running the business the old way. (Back then, as Doug Mataconis notes, coverage included the following: “Knapp said he’s okay with other ministers performing marriages at their facilities but it is not something he will do.” — a position that appears to have changed, again without acknowledgment.)
Let’s be blunt. ADF, which was involved in helping the Knapps revamp their enterprise onto a religious basis, is by the omissions in its narrative encouraging alarmed sympathizers to misread the situation.
Could the city of Coeur d’Alene force the Knapps to provide ministerial officiation of same-sex weddings? As Eugene Volokh explains, in a post based on the initial reports, the clear answer is no, since such compulsion would be an unconstitutional forcing of speech and “would also violate Idaho’s Religious Freedom Restoration Act.”
Besides those two distinct layers of legal protection, they are likely to benefit from a third, noted in this May article in the Spokane Statesman-Review: “religious entities are exempt from the Coeur d’Alene ordinance” and “pastors in the city are not obligated to perform same-sex weddings.” (Todd Starnes links to the Spokane article, but makes no reference to these bits.)
Possibly — the statements of municipal lawyer Warren Wilson in May are ambiguous — the city saw the then-secular Hitching Post as obliged not only to provide the equivalent of a hall rental to same-sex applicants, and sell them silk flowers and other incidentals, but also connect them with an outside officiant sympathetic to their union to pronounce the ceremony. It is by no means clear that the city would apply the same requirements to the Knapps’ newly revamped and far more explicitly religious Hitching Post. It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps.
Even absent any obligation to officiate, it seems to me that a family business in this situation has at least as sympathetic a case as the cake bakers, wedding photographers, invitation engravers, and hall providers who sought exemptions in previous episodes. But really, isn’t our libertarian case strong enough that it can stand on an accurate description of what’s actually going on?
Update: Via Eugene Volokh, Coeur d’Alene’s attorney has now sent a letter making clear the city’s position that even the newly reorganized Hitching Post is subject to the law because the law’s religious exemption covers by its terms “nonprofit” religious corporations, which theirs is not. Volokh argues, I think plausibly, that this position will fail in court if applied to compel the provision of ceremonies because both the constitutional right against forced speech and the state Religious Freedom Restoration Act extend in their application beyond nonprofits. Indeed, the city lawyer’s own letter cites a provision, section 9.56.040, in the city’s anti-discrimination ordinance, stating that the ordinance “shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion”. This provision would appear not merely to permit, but to require, the city to back off enforcement efforts that conflict with speech and religious freedoms, whether exercised in a non-profit or for-profit setting. The letter — which in its reference to “services” draws no distinction between functions like hall and equipment rental, and expressive ceremonial services — would thus appear to put the city on a collision course with the speech and religious freedoms of the Knapps.
One day later: City says it’s considered the matter further and realizes now that nonprofit status is not required to qualify for exemption. [Boise State Public Radio via Shackford] Quoting BSPR: “The group that helped create Coeur d’Alene’s anti-discrimination ordinance says the Hitching Post shouldn’t have to perform same-sex marriages. The Kootenai County Task Force on Human Relations says in a letter to the mayor and city council that the Knapps fall under the religious exemption in the law.” More coverage: KREM, Boise Weekly, Religion News Service, Sarah Posner/Religion Dispatches (discussing this post).
- Florida attorney John Morgan, suing NASCAR over crowd injuries, says waiver on back of ticket isn’t valid [Mike Bianchi, Orlando Sentinel, scroll to “Open Mike”; John Culhane, Slate] Idaho court denies assumption-of-risk “Baseball Rule” in foul-ball case [CBS]
- “Pennsylvania vs. NCAA: case dismissed” [antitrust; Rob Green, Abnormal Use]
- 1911 article: aviation “as safe as football”: 47 aviation vs. 60 football fatalities in 1909. [Kyle Graham, @tedfrank] “Do no harm: Who should bear the costs of retired NFL players’ medical bills?” [WaPo] “Retired Jocks Dig for Gold in the California Hills” [Jon Coppelman on state’s generous worker’s comp arrangements, earlier]
- “The Derrick Rose lawsuit and emotional distress claims in South Carolina” [Frances Zacher, Abnormal Use]
- “Parents of autistic New Jersey teen sue so he can play on” [Brick, N.J. football team; WPVI]
- NY Yankees successfully challenge company’s effort to trademark “Baseball’s Evil Empire” [Ilya Somin, Michael Schearer]
- “Memo to Roger Goodell: I’ll take my NFL football without Obamacare propaganda, please” [Bainbridge]
- Despite sparseness of evidence, lawyers hope to pin liability on hotel for double murder of guests [Tennessean]
- Celebrated repeat litigant Patricia Alice McColm sentenced after felony conviction for filing false documents in Trinity County, Calif. [Trinity Journal, more, Justia, earlier] Idaho woman challenges vexatious-litigant statute [KBOI]
- “2 Florida Moms Sentenced for Staged Accident Insurance Fraud” [Insurance Journal, earlier]
- With Arkansas high court intent on striking down liability changes, advocates consider going the constitutional amendment route [TortsProf] Fifth Circuit upholds Mississippi damages caps [PoL]
- What states have been doing lately on litigation reform [Andrew Cook, Fed Soc] Illinois lawmakers’ proposals [Madison-St. Clair Record] Head of Florida Chamber argues for state legal changes [Tampa Tribune]
- Crowd of defendants: “Ky. couple names 124 defendants in asbestos suit” [WV Record]
- A bad habit of Louisiana courts: “permitting huge recoveries without proof of injury” [Eric Alexander, Drug and Device Law]
“[Keith Allen] Brown and four other inmates at Idaho’s Kuna facility are suing major beer companies, blaming their crimes on alcoholism and claiming that the companies are responsible because they don’t warn consumers that their products are addictive.” The laudatory Nicholas Kristof column practically writes itself, though one should note that the inmates “do not have attorneys and drafted the lawsuit themselves.” [Idaho Statesman]
- “It’s time for the ABA to deregulate law schools” [Richard Painter, Legal Ethics Forum]
- Curb schadenfreude please, it’s just class action entrepreneurship: “Law Schools Sued for Lying About Lawyering” [NY Magazine]
- “AALS President: Law Professors Should Be ‘Cheerleaders’ for ‘Our Way of Life.'” [Instapundit]
- “Widener Law settles with Prof. Lawrence Connell” [William Jacobson, Legal Insurrection, earlier here, here, here, etc.] Sensitivity camp at U. of Idaho Law [ATL] Peter Wood on Teresa Wagner case [Chronicle]
- Perspective of a practitioner turned professor [David Hricik] Claim: proliferation of “soft” curriculum really isn’t something to worry about [Brad Wendel] “Justice Scalia makes up with University of Chicago” [Chicago Sun-Times]
- “The coming crash in legal education” [Richard Bourne, Creighton Law Review/University of Baltimore/SSRN via Caron] Could law schools recover from adversity the way dental schools did? [Eric Chiappinelli, Faculty Lounge] “Why Occam’s Razor cuts in favor of making law an undergraduate degree” [Russ Pearce, LEF]
- US News changes rating methodology, and law schools’ part-time day programs suddenly dry up [Caron]
- Attention New Yorkers: if you missed my talk Tuesday at Fordham on Schools for Misrule, I’ll be back in town next Wednesday (Feb. 22) for a 1 p.m. talk at Brooklyn Law School before that school’s Federalist Society chapter; also that evening at Yale with distinguished Prof. John Fabian Witt commenting.
So now everyone will be happy dept.: The only bone-marrow donor program in Idaho’s capital of Boise is closing down. It seems the National Marrow Donor Program has enacted regulations requiring local programs either to recruit at least 1,000 minority donors a year or to hire a full-time recruiter by way of showing a good-faith effort toward that goal. But there aren’t enough minorities in the Treasure Valley to hit the numerical target and the program at St. Luke’s Mountain States Tumor Institute isn’t big enough to support the full-time hire, so now the nearest local option for potential donors will be an institution in Spokane, Washington. (Idaho Statesman and more, Idaho Business Review, Seattle Times) (via Taranto).
More: The national program, however, denies that its regulations require the hiring of a recruiter and says its local minority recruitment goal is 575, not 1,000: Taranto, Aug. 11.
We and many others criticized a law firm in October for taking the position that its cease and desist letters, also known as nastygrams, were copyrighted and thus could not be posted intact on the web by its targets. However, if a press release from that law firm is correct, a federal court in Idaho has just indeed taken the position that cease and desist letters may be covered by copyright law. Such a ruling, if upheld, would make it more difficult for the targets of bullying tactics by lawyers to rally online support for their cause. (TechDirt, Jan. 25; Slashdot, Jan. 26; Dozier Internet Law press release, PRWeb, Jan. 24).
More: “if a press release from the law firm is correct” turns out to be a big if: according to Ron Coleman at Likelihood of Confusion, as well as our own commenters, the Idaho federal court ruling falls far short of establishing any such proposition about these letters’ being copyrightable. See also: Victoria Pynchon, IP ADR blog, TechDirt later post, Paul Alan Levy @ CL&P. And yet more: Marc Randazza, Eugene Volokh.
“Threatened with a potential defamation suit, two individuals have apparently retracted their claimed characterization of a Spokane, Wash.-area law firm formerly known as ‘Wetzel & Wetzel’ as ‘Weasel & Weasel.'” Jim MacDonald, president of the Bayview, Idaho Chamber of Commerce, “read a letter of contrition” at the chamber’s regular monthly meeting “as demanded” by the offended lawyers. Does this mean we’re going to get in trouble with our earlier references to Cruel & Boring, We’ll Getcha & Mangle Ya, Huge Cupboards of Greed, etc.? (Martha Neil, ABA Journal, Oct. 25; Herb Huseland, “Bayview News: Law firm claims slander”, Spokane Statesman-Review, Oct. 25).
P.S. Australian lawyer Stumbling Tumblr adds, “there’s no indication in the story whether weasels had also threatened proceedings”.