The headlines all
say something similar—a variation of “Ministers in Idaho city
told to marry gay couples or go to jail.” Headlines being what they
are, they’re factually accurate while being a little incomplete.
The conflict is worthwhile to examine: One of the big fears of
religious conservatives is that the legalization of same-sex
marriages would result in the government forcing churches to
perform gay wedding ceremonies. Is that what’s going on here?
On a certain level, that’s not quite what’s happening. Donald
and Evelynn Knapp are ordained ministers in Coeur d’Aline, Idaho.
They run a business called The Hitching Post where they
conduct wedding ceremonies. It’s not a church, per se. Idaho is now
recognizing gay marriages, so does that mean The Hitching Post is
providing a public accommodation? A deputy city attorney for the
city
thinks it is, meaning the Knapps would be violating the city’s
anti-discrimination ordinance should they refuse gay couples. They
could face fines (very likely) or jail time (probably not). The
debate started all the way back in May, when the Knapps threatened
to close their small chapel if forced to marry gays. That was when
the issue was still under debate. Now gay marriage recognition has
come to Idaho, and a gay couple came to the Knapps wanting to get
married. They were turned away.
The Alliance
Defending Freedom, a Christian legal group (mentioned
last week in a fight between the City of Houston and Christian
opponents of an anti-discrimination ordinance), is representing the
Knapps against the city to halt enforcement of the law, and so
there’s lots of outrage to go around.
Eugene Volokh, over at The Washington Post,
stepped away from all the outrage and emotional responses to
explore whether the city could force a minister to marry a gay
couple, even through the mechanism of a for-profit business rather
than a church. His conclusion is that
they probably could not:
Friday, the Knapps moved for a temporary restraining order,
arguing that applying the antidiscrimination ordinance to them
would be unconstitutional and would also violate Idaho’s
Religious Freedom Restoration Act. I think that has to be right:
compelling them to speak words in ceremonies that they think are
immoral is an unconstitutional speech compulsion. Given that the
Free Speech Clause bars the government from requiring public school
students to say the pledge of allegiance, or even from requiring
drivers to display a slogan on their license plates (Wooley v.
Maynard (1977)), the government can’t require ministers —
or other private citizens — to speak the words in a ceremony, on
pain of either having to close their business or face fines and
jail time. (If the minister is required to conduct a ceremony that
contains religious language, that would violate the Establishment
Clause as well.)I think the Knapps are also entitled to an exemption under the
Idaho RFRA. The Knapps allege that “sincerely held religious
beliefs prohibit them from performing, officiating, or solemnizing
a wedding ceremony between anyone other than one man and one
woman”; I know of no reason to think they’re lying about their
beliefs. Requiring them to violate their beliefs (or close their
business) is a substantial burden on their religious practice.
Read more analysis from Volokh
here. He also weighed in on the Houston subpoena controversy
from last week
here.
We can argue whether baking a cake or taking photographs
constitutes putting a stamp of approval on a wedding or if it’s
just a neutral service (not that it should matter to anybody who
supports freedom of association). But certainly a minister
performing a religious ceremony, regardless of whether the context
is through a church or business, cannot be reasonably argued to be
providing something that is content-neutral.
For heaven’s sake, folks, don’t try dragging somebody in to
marry the two of you who doesn’t want to marry the two of you. It’s
supposed to be the happiest day of your life. Here’s a suggestion:
If you’re thinking of cutting out a distant relative from an invite
to your wedding because he is posting anti-gay-marriage stuff on
his Facebook wall, don’t ask somebody with the exact same beliefs
to perform the ceremony for you.
See my previous installments of “Why Not Force Somebody Who
Hates You …”
here and
here.
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