Donald and Evelyn Knapp, pictured above, are ordained ministers who conduct weddings at their for-profit chapel in Coeur d’Alene, Idaho, called “The Hitching Post.” After this year’s ruling by an Idaho federal judge that the state had to recognize same-sex weddings, a City of Couer d’Alene deputy city attorney went on local TV to say that for-profit wedding chapels could not legally turn away a gay couple without risking a misdemeanor citation. The Hitching Post, he noted, “would probably be considered a place of public accommodation that would be subject to the ordinance.” The Knapps say the the City Attorney’s office has made the same assertion in telephone conversations with them.
Now, the Volokh Conspiracy reports, the Knapps have moved for a temporary restraining order, arguing that applying the anti-discrimination ordinance to them would be unconstitutional and would also violate Idaho’s Religious Freedom Restoration Act.
They have to win. As Professor Volokh, a First Amendment authority of fame and renown, explains,
[C]ompelling 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.
And I find it hard to see a compelling government interest in barring sexual orientation discrimination by ministers officiating in a chapel. Whatever interests there may be in equal access to jobs, to education, or even in most public accommodations, I don’t see how there would be a “compelling” government interest in preventing discrimination in the provision of ceremonies, especially ceremonies conducted by ministers in chapels.
[ 10/23/14: The professor has an update here.] It troubles me that the inherent First Amendment—speech and religion—infringement of forcing citizens to deliver the words of a ceremony when they don’t want to would not be immediately apparent to the City Attorney, any lawyer, anyone familiar with the concept of free speech, and gay marriage advocates who are in any of these categories. This slides significantly further down the slippery slope than the case previously discussed on Ethics Alarms, where the issue is refusing to rent a publicly available venue for a gay marriage. Now a local government is claiming that the state’s acceptance of gay marriage requires a citizen to actively participate in one, indeed, perform the ceremony?
Ridiculous and wrong….and as I just said, obviously wrong. What’s next, legally requiring citizens to accept invitations to gay weddings? Make sure they get a nice gift? From Think Progress’s tunnel-vision commentary on this case, one might expect those steps to be applauded too. It appears not to even occur to dedicated gay marriage rights activists that Americans can’t be forced to say what the good people think they should say, or support what the right people insist they should support. I happen to believe that same-sex marriages are good, and that legalizing them is right. Nonetheless, if you tell me I have to officiate at one of them or be fined, we have a problem. This kind of fascism from the left—and that’s what it is, ThinkProgress— forfeits the support of the fair, the moderate and the sane: it is why I now no longer support gun controls. Americans still don’t respond well to being bossed around.
Any advance in ethics can become a slippery slope to the unethical, and this is a good example. Personal autonomy still matters; freedom of belief is still an important right to respect and protect. Slippery slopes need sand, and this is an excellent example of why.
This case shows how the left-leaning biases of the ACLU meld their lawyers’ brains on occasion. In the similar case involving an Elvis-themed Vegas wedding chapel, Tod Story of the ACLU maintains, “The difference between a church and a place of worship and a wedding chapel, is that a wedding chapel is a business so that is covered under the Public Accommodations Law of Nevada.” The government still can’t force a minister to say words he thinks are immoral to say, Tod.
I thought the ACLU fought for free speech, even speech it didn’t like.
Pointer and Facts: Washington Post (Volokh)