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).
20 Comments
Thanks for clearly explaining this. Some “conservative” websites that I generally like get their knickers in a bunch over cases like this, without understanding what’s really happening.
The Gay Community (whatever that is) really isn’t launching a war on “Christians” (whoever they are).
Your “Libertarian” case can’t stand-up to scrutiny on this issue simply because a theoretically pure Libertarianism can not exist in a world comprised of a spectrum of people with specifically anti-Libertarian ideals.
Extremist Republicans and religious fanatics are just as far away from Libertarian ideals as Marxists and left-wing Socialist extremists.
The hypocrisy and pandering to people that have zero respect for Libertarian ideals that I see from so many self-professed “Libertarians” is embarrassing.
If you compare their marketing literature from before and after their “religious conversion”, you’ll clearly see that they have routinely offered weddings performed by contractors or employees, people other than the Knapps themselves. In their complaint, they make clear that NOW those occasional contractors/employees are NOT ALLOWED to perform SSMs even if they wanted to. Cuz the religious beliefs of the owners supersede the religious beliefs of both underlings and customers…
Mr. Olson,
I grew up Libertarian/Conservative and I understand your views on non-discrimination ordinances. That said, you must know that when you say that you hope this couple wins an exemption it means that this couple wins a victory striking down the entire law as unconstitutional and a violation of the states “religious freedom” act. The ADF isn’t invoking the power of their FOX news god and galvanizing their faithful at the FRC just to win a victory for this couple alone. Their biggest wet dream is to have SCOTUS constitutionalize their religious freedom schtick guaranteeing that all people (in private business, major corporations, or as representatives of the government) can use the name of a deity to discriminate against us.
Dana Chilton,
So as a Libertarian/Conservative you recognize that a private business should be allowed to discriminate for whatever reason, or no reason, they want.
Amazing how the “gay community” never sues Muslims into baking cakes or performing weddings.
Wonder why that is.
Oh and Dana Chilton…you get points for mentioning Fox News. But you lose points for not blaming Bush and not mentioning the evil Koch Brothers. That’s a net negative 3 points on the liberal trollmeter.
[…] Walter Olson shares his take at Overlawyered.com. It’s a tangled web with much mischief on the right in an effort to great […]
http://www.huffingtonpost.com/james-peron/is-a-church-being-forced_b_6019354.html
I would suggest that the number of Muslim run bakeries in the US where marriage equality is a fact are rather rare. It is a silly observation to note that they aren’t being sued by the scare quotes “gay community.”
“But shouldn’t their lawyers be upfront that this is what’s going on?”
Why would you think that? What matters is what the facts are.
” It is even more of a stretch to imply, as Starnes does, that the city is on the verge of “arresting” the Knapps. ”
Just by passing the law, the city has declared it’s intent to enforce it. That very plausibly includes arrest. The Knapps have said they will not respect that law, I wouldn’t either, it’s clearly unconstitutional.
The sword of damocles is right there. Where’s the stretch?
“Their biggest wet dream is to have SCOTUS constitutionalize their religious freedom schtick guaranteeing that all people (in private business, major corporations, or as representatives of the government) can use the name of a deity to discriminate against us.”
They can do just that.
You should like it.
It’s your same right not to be made to violate your own conscience with your own property and time.
[…] So, what’s the history of the Hitching Post? Well, that’s where it gets murky. Walter Olson of Overlawyered tipped me off on this one. […]
The Knapps are “ordained” ministers. I’m assuming that means that they have had some sort of an education in the religion that “ordained” them and that “ordainment” is a certification of that education.
Do the rules of that religion allow them to perform same sex marriages?
If the rules do not, can their “ordainment” be revoked?
If the rules do not, and they perform the ceremony anyway, is the couple “really” married?
If the couple turns out to NOT be married, can the Knapps be charged with fraud or theft by deception?
Tom Perkins, you are correct up to, but not including as a representative of the government. The government does not have any religious freedom. And I for one have to agree with that limitation. It also does not have any other constitutional rights not specifically given to it because those belong to the states and to the people.
Cecil – Tom Perkins was citing dana chilton above. Are you correcting Tom for not correcting dana? If I am reading this correctly, your comment should be directed at dana.
Jim Collins – Are you being pedantic or inquisitive? Assuming you are inquisitive… You are conflating a religious union with a legal one. The religious union is separate and distinct from the legal one. Establishment, cancellation, annulment, etc of one has no effect on the other, though change in status for both may be pursued simultaneously.
BTW, the word you are looking for is “ordination”. Your assumption about the requirements to receive such is, well, an assumption. The education component is very much not a universal requirement for ordination. Besides, that tangent was irrelevant to your line of questions.
IceTrey – Well spoken and thanks for your clever username.
D,
If the religious union is separate from the civil union, then you just solved the entire problem. If gays can get a civil union as allowed by law, then why are they so insistent on having a RELIGIOUS minister perform a ceremony? There are plenty of people who can marry people, who DON’T have a religious issue with it.
inalienable rights as defined is pretty clear on this. And for a libertarian site it would seem you would hold these so called “natural” rights in high esteem. The bill of rights protects freedom of religion, not freedom to marry whoever you want. Laws that don’t cross those rights and do no harm to anyone should be the goal. If a gay couple wants to marry and it will violate a private business owner religious expression/speech, then the line has been crossed. The couple has the freedom to choose their own “minister” or officiator. It is very plain. As for the ADF going over board with the story, I believe with the current winds blowing on this movement it is best to presume worse case scenario. IMO
Jim,
Really? Really? If I thought that people were trying to get religious ministers to perform ceremonies against their will, I would certainly be against that. All people want is equal access to places of business. Equal access to public accommodations is an easy question (always). Forcing personal services, i.e., photographers and bakers, is a tougher question. Forcing someone to perform a religious ceremony against his will is an easy question (never).
Allan,
Isn’t that what the Knapps are claiming? That they are essentially being forced to conduct ceremonies that are contrary to their religious beliefs?
I have less of a problem with the photographers and bakers than I do with this.
Personally I see a business opportunity here. Find people who have no problem with this and start offering package deals. Wedding, reception, catering, cakes and photographers. One stop shopping.
[…] of the Cato Institute explained it all from a libertarian perspective in his Overlawyered blog here. I decided not to engage in discussing the intrigue further because, though the technical […]
Jim: The point is not that same-sex couples can’t find services. The point is to beat religious people up, to bully them, to force them to publicly recant their beliefs and then to rub everyone’s noses in it so that we all know Who’s In Charge Now.