On Forced Acceptance Of Same-Sex Marriage: The Slippery Slope Stops Here

Hitching-Post-Idaho

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.

Guess not.

_______________________
Pointer and Facts: Washington Post (Volokh)

Facts:Think ProgressWisconsin Gazette

113 thoughts on “On Forced Acceptance Of Same-Sex Marriage: The Slippery Slope Stops Here

  1. Like I said, this is getting closer and closer to a legal Katyn Forest, when those who stand in the way of the new doctrine are disappeared. I hope you are right that this is where the ahem, tide, crests.

  2. Wouldn’t the problem be the”for profit” part? How you claim religious exemption and run a for profit business that should be open to all? The solution would be for the chapel to reclassify itself as a religion, if they want the benefits of that.

      • That’s for employees, not customers (though I have a problem with that too, it’s irrelevant in this case). Could Hobby Lobby keep out all non-Christian customers if it wanted to?

            • No. But in this case, can a kosher deli choose only to serve Jewish customers? Once you are open to the public, you can sift through your customers, picking and choosing which ones you will accommodate and which ones you will not.

              Gay marriage is legal in that state. They have the choice of either accommodating those customers, becoming a religious nonprofit, or getting out the business. This doesn’t change whether you are talking about gays, races, nationalities, or religions. You are a secular business open to the public. There are known consequences for operating one. This is one of them. Suck it up and deal.

              • Kiss my ass, Deery, no one tells me “suck it up and deal.” In case you haven’t read the whole post or the thread, the First Amendment still does mean something, and it doesn’t mean that once you are open for business you give up those protections and can be made to do or say anything the government says you must, even if it conflicts with your principles, simply because you are making a living. Can a Christian bookstore be made to stock gay books or the Kama Sutra? Not a chance.

                • Slow your roll. Lol. Not “you” specifically Steve, but “you” as in anyone who wants to run a for-profit business, yet discriminate between customers.

                  • You’re just wrong on the law. You can operate a business in which you are paid to give marriage vows to whoever you choose to, just like you can have a business where you sing at whatever events you choose to. I can’t begin to say I am the First Amendment expert Volokh is, but his reasoning is dead on, from multiple angles. I have a directing business…do I have to direct The boys in the Band? I’m a lawyer: do I have to represent a gay couple? Public accommodations involve goods and services, not speech and participation.

                    • Can a business direct its waiters to not give the list of today’s specials only the black customers? What if the business owner’s religion said that blacks should be treated worse than whites? Can we direct that if they are treating white customers one way, they must treat all their customers the same way, no matter what the owner’s religion says?

                    • Ok, now I know you are smart enough to distinguish between expressive conduct and forced speech. You could not make a law forcing a waiter to say “I think African-Americans are wonderful, and I want to live, love and work with them!” You can say that a restaurant must require him to treat them like anyone else. Can the LAW make him smile? No.

                      There is also a distinction between a restaurant and a chapel which only performs some ceremonies. Can a black diner force the restaurant to provide the food he likes?

                    • Well, let’s assume that the chapel probably has a list a book of ceremonies that they perform as standard, and the gay couple in question peruses the book, and finds a ceremony that fits their needs. It requires absolutely no deviation on the officiant’s part to perform this ceremony as opposed to a straight person’s ceremony. Yet the official still won’t do it. Would that be ok?

                    • Sure. Because it’s a same sex marriage, the ceremony has a different effect, at least in the judgment of the Pastor. Could the law compel a Rabbi to preside over a Christian wedding? No. The law can’t compel you to speak. If the service requires a ceremony performed by the owner, the owner can refuse. You read the other cases.

                    • Sure. Because it’s a same sex marriage, the ceremony has a different effect, at least in the judgment of the Pastor. Could the law compel a Rabbi to preside over a Christian wedding? No. The law can’t compel you to speak. If the service requires a ceremony performed by the owner, the owner can refuse. You read the other cases.

                      We have already seen examples where the law can require a business to “speak”, as in warnings for drug advertisements. If you are a not a religion, but a business accepting fees from the general public, then there are certain basis that you cannot discriminate on, religion being one of them. If your religious belief is such that it requires you to discriminate, then you should not be in that line of business. Full stop. Otherwise there is no regulation that wouldn’t fall prey to a “sincere religious belief”.

                      Americans have thousands of religions, and many of them quite wacky. Or is it only Christians who should get a waiver to discriminate against others? A public accommodation means that you cannot discriminate between your customers. If you offer one a service, you have to offer all that service. What if the business owner’s religion forbid interracial marriages? Or between two different nationalities? They are a secular business, offering secular, not officially religious ceremonies. Therefore they fall under secular rules. That was the owners’ decision when they registered as a for-profit business.

                    • Well, deery, then I suppose you would not have a problem with forcing a Unitarian minister or other gay-friendly church ministers to officiate a wedding ceremony for a couple who follows a religion that erases outright gay bashing to the level of a sacrament, and whose wedding vows include gay bashing.

                    • Well, deery, then I suppose you would not have a problem with forcing a Unitarian minister or other gay-friendly church ministers to officiate a wedding ceremony for a couple who follows a religion that erases outright gay bashing to the level of a sacrament, and whose wedding vows include gay bashing.

                      This isn’t a church. Next.

                    • It’s a place of worship, and they are ministers. Churches don’t have to be non-profit. (Since we know they aren’t anyway…)

                      It isn’t a place of worship. How many religious ceremonies do they conduct there? If they want the special protections afforded to religions, then they have to show that their primary purpose is religious, not profit. How have they done so?

                    • They are ministers, performing a religious ceremony. What else do you want?

                      They are a registered for-profit business that has agreed to accommodate the public. If they want to discriminate and the protections of a religion, they organized under the wrong regulations. They can’t have their cake and eat it too.

                    • Freedom of religion doesn’t abandon someone because they are paid to exercise it. You’re just wrong, I suspect because you regard religious belief as something you wipe off your shoe. Stop the public accommodation argument—if that’s all there was, then the case would be simple. Free speech means one can’t be compelled to utter expressive speech by the government, and flogging for-profit and public accommodation doesn’t get you around that. Sorry. It doesn’t.

                      Similarly, in a different realm of the law, a singer or artist can’t be compelled to meet the terms of a contract in which they agreed to sing or perform. The law will not require specific performance of expression.

                      There is nothing in the Constitution about for profit or non-profit. People have an absolute right to freedom of expressive speech, and cannot be compelled to engage in religious practices by the government. That trumps the public accommodation laws. And should.

                    • …Second, we conclude that the NMHRA does not violate free speech guarantees ….because the NMHRA does not compel Elane Photography to either speak a government mandated message or to publish the speech of another. The purpose of the NMHRA is to ensure that businesses offering services to the general public do not discriminate against protected classes of people, and the United States Supreme Court has made it clear that the First Amendment permits such regulation by states. Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. We also hold that the NMHRA is a neutral law of general applicability, and as such, it does not violate the Free Exercise Clause of the First Amendment.

                      Click to access SC33,687.pdf

                      From the Elane Photography case. New Mexico, but the analysis is much the same. They must offer the same type of services they would offer a heterosexual couple, full-stop.

                    • The decision had to rest on the conclusion that a standard wedding photo was not expressive speech. Could the government make an artist paint their wedding portrait? Even with the Elaine decision (which may have been wrong), I’d say no.

                      It won’t stand as precedent. The ACLU is on the wrong side. Again.

                    • It still isn’t precedent, and I explained why. It doesn’t involve an exercise of religion, and it doesn’t compel speech as that court interpreted. But speech is undeniably speech. The case isn’t controlling.

    • I struggle with this, I agree with Jack on this issue, that inclusiveness in general is a good thing, but coercion is not.

      I think, from my perspective, this is like walking into a left hand store and complaining they don’t carry right handed scissors. This business offers the service of marrying one man to one woman. They might even marry a gay man to a gay woman, if they so wanted for tax purposes or whatever, but they don’t stock two man or two woman marriages.

      But even more than that, this is a great example of how America never really separated church and state. A wedding in a church is a religious ceremony, the institution of marriage is a legally recognized state. The sensible compromise then would be to either find a chapel that will marry you, or get one done by an official outside a church. I mean… I get it. A lot of people want the wedding with all the frills and whistles. But do you really want to force a group of people who hate you for who you are at your wedding?

      • Actually, I think in some cases the answer to that last question is yes. I’m sure most gay couples just interested in getting married could (and do) seek out venues, vendors, et al, who are actually interested in working with them and happy to do so, and if one tells them no, they keep shopping until they find one. Getting married is supposed to be a happy occasion, not one for picking fights. Those who insist that this particular institution give them what they want, like it or not, I submit, have something other than only marriage on the agenda – forcing their agenda on those who oppose it.

        It’s that kind of bullying behavior that makes folks like me, who have a reflexive “yuk” reaction to gay people and all things gay (camping up is annoying and in some cases disturbing, gay sex is repulsive to think about) but try to also be adult about it (walk away if you’re annoyed, what folks do behind closed doors isn’t your business unless they insist on making it a matter of public record), to dig our heels in and say “you know what, if you just went your way and left us to go ours that would be fine, but we’ll be damned if we are going to let you force us into censoring our speech or giving up our beliefs.” Those who push this agenda and keep pushing and pushing and pushing, no deviation allowed, are just making themselves look like selfish children who won’t make even the slightest concession to anyone else at best, like tyrants at worst.

        • I think the real question is why they want to force old folks to bend over like this? Maybe in five years their religion will decide it’s okay and they could marry there. Maybe someone else will buy the chapel. There are plenty of other places now to get married. Consolidate your gains and let the most opposed have time to grow out of it (that the world won’t end from married gays) or simply die of old age, Demanding a SPECIFIC wedding chapel is just bridezilla crap.

          I’m sorry of parents, grandparents, society treated them badly, but the answer is to be better and NOT return the same when you have any power. That shows you are just being a petty child, and will slow the full acceptance of the change. Using a big stick is not going to make them accept you and yours and will polarize those who weren’t your opponents before you decided to be an ass, It’s how you act when you’re the top dog that shows your true morals.

      • Doesn’t the law already regulate for profit speech? Look at the warning labels cigarette companies have to put on their packages. In some states the law requires doctors to give a set spiel to patients seeking an abortion, even if they strenuously disagree with those statements.

        In the for profit world, the government does seem to be able to compel affirmative speech. If a business offers a service, they have to offer the same one to everyone, and not discriminate. If they don’t want to do that, become a religion and discriminate at your leisure. But you can’t have your cake and eat it too.

        • Some of that falls under the public safety umbrella. The owners aren’t agents of the government so full restriction do not apply so in the end you have competing rights of individual citizens, by allowing them to only perform the religious ceremonies they believe in does not remove a gay citizens ability to have a marriage ceremony, no harm, but forcing the owners to perform a ceremony that may be against their convictions may cause harm.

      • So, if this for-profit religious shop refused to marry blacks, because it was against their religion and they deemed it “forced speech,” they legally would be able to refuse a marriage ceremony? I doubt it.

        • The business here is not even refusing to marry gays- it is refusing to perform same-sex weddings, whether they be black or white, Mormon or Protestant, homosexual or heterosexual.

          They specialize in opposite-sex weddings. No evidence indicates that they refuse opposite-sex weddings on the basis of race, religion, or sexual orientation.

          The thing is, if same-sex weddings are not offered to anyone– regardless of race, religion, or sexual orientation, then, by definition, there is no discrimination.

            • THAT’S your best question so far. If the couple loses, that’s the one that will do it. I honestly don’t know the answer there. On one hand, I don’t see how the law can force an individual to perform a ceremony that requires the individual to say specific words. The question is whether there’s a compelling government interest would seem to be the crux. Looking at Volokh’s analysis…

              “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.)”

              This would all apply to racial discrimination too, as I read it.

              “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.”

              I think the burden of proof to show genuine religious belief rather than pure bigotry would he tough for the race bigot.

              “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.”

              Well, I don’t know. There’s a well established compelling govt interest in not allowing discrimination on the basis of race.

              • I think, though, the main point is that in the same-sex marriage situation, there is no necessary bias against gays present. This is just a kind of marriage we don’t do, because our religions doesn’t recognize it.

              • But NOT in forcing everyone to say that this race or that race is great or in reciting an anti-racism creed every day. There isn’t specific language in the Bible that says marrying different races is wrong. There is regarding homosexuality. If gay marriage is legal then anyone can get a civil marriage. Anyone can’t force a particular someone to marry them. This is treading dangerously close to governmental hostility to religion.

                • There are enough passages in the Bible that bigoted Christians often cite to justify opposition to interracial marriage, the same way they do with same-sex marriage. For the purposes of public accommodation, it doesn’t really matter in either case.

                  Anyone can’t force a particular someone to marry them.

                  What about a judge or justice of the peace opposed to same sex marriage that performs marriages in a particular town? What if a couple wants to get married in their town, and not have to travel? Can they force that judge to recite the words, and marry them?

                  • What about a judge or justice of the peace opposed to same sex marriage that performs marriages in a particular town?

                    Judges are bound by the the law as interpreted by their superior appellate courts, including the U.S. Supreme Court.

                    • So a judge can be forced to recite words against his personal religious beliefs, because that is the law, but a business is allowed to circumvent the law because…?

                    • No, he can quit. But his duties are not personal, they are done on the government’s behalf.

                      They can disband their business if they feel they have to discriminate. These duties are not religious, they are done for the purpose of profit, like any other for-profit business.

                • It has nothing to do with the Bible — or any religious text from any other sect. It has to do with discrimination. If you are a church, you can discriminate. If you are a for-profit business, you can’t. If they want to protect their religious rights under the First Amendment, then they need to reorg under a different provision of the tax code. This is no different from the bakery that didn’t want to bake the cake for the gay couple.

                  • Yes it is, Beth, significantly and materially different. Forced expression was borderline in the cake scenario, but reciting a ceremony isn’t on the border. The government can’t punish you for silence, except in court.

                    • The government can’t punish you for silence, except in court.

                      Yet it does all the time for businesses. Businesses *can* be compelled to speak, in their business, for-profit capacity. You and the other commenters seem to be confusing business rights and individual rights, and they are not the same.

                    • No, you are confusing businesses with the human beings who perform rituals and ceremonies, entire by their own will and beliefs, for money or not. The pastors don’t give up the individual rights by incorporating.

              • So what about the LDS church? They most definitely had language in their religious texts hostile to blacks (although not to marriage to blacks). The federal government leaned on them and magically, God changed his mind and all the restrictions on blacks in the church disappeared. The same thing with polygamy (although I think they eventually will win on the polygamy thing). The federal government exerted pressure on the religion and forced them to change their doctrines..

                I think the next step is that the law will force all ministers and rabbis to perform same-sex marriages. They will just claim that ‘hate speech isn’t free speech’ and they will find examples of people claiming to be Christians and Jews who say there is really no actual religious objection to same-sex marriage.

                • I think the next step is that the law will force all ministers and rabbis to perform same-sex marriages. They will just claim that ‘hate speech isn’t free speech’ and they will find examples of people claiming to be Christians and Jews who say there is really no actual religious objection to same-sex marriage.

                  The step after that is violent resistance.

                • That’s crazy. A religious organization cannot be compelled by the State to perform same sex marriages. We are talking about businesses — not churches.

          • How is forced speech different from forced art — such as photography or cake design? You are splitting hairs here Jack. Either it is all perfectly constitutional or it’s not.

            • Those rulings did not concede that the photographer, the baker and the florists were engaging in art, because the cases were argued on religious grounds. I think they are close calls. A ceremony requiring speaking is not. As an aside, it would not be unreasonable to draw the line between making products and a religious ceremony.

    • The problem is here individuals are being forced into active participation in speech they religiously have a problem with. Legally, this is directly opposite cases that hold you can’t be made to pray, can’t be made to salute the flag, can’t be made to take an oath in court, can’t be made to say anything that conflicts with your conscience. If this gets rammed through, I say let’s bring back all those things, because the legal foundation saying no one can be made to say anything just went out the window. Either that or we are all admitting there is one standard for conservative things like patriotic or religious expression, where liberals/progressives are allowed and even encouraged to opt out, and another for liberal things like gay marriage, where liberals are empowered to force everyone to speak the party line under pain of serious, even criminal, consequences. In fact let’s go a step farther and change Miranda to the UK version, where you are told although you do not have to say anything, it may harm your case if you refuse to cooperate with the police, and let a jury draw an adverse inference if a criminal defendant refuses to take the stand.

    • You raise some points below I hadn’t thought of though, full disclosure, I was and continue to be pro-marriage equality. But the same law that would require this couple to perform wedding ceremonies for same sex couples I suppose would also require an African American pastor to marry two members of the KKK if that pastor owned a for-profit wedding chapel.

  3. Making a cake does not commit the baker to the ceremony. Arranging flowers does not commit the florist to the ceremony. In this instance we finally have someone tied to the ceremony. The solution is to remove that person from the ceremony, but if that person has exclusive use as the officiator on that premises and they only offer one type of ceremony, then for ceremonial purposes, the non-qualified participants are out.

    Talk about a slippery slope – a minister that offers only 1 type of religious ceremony, if forced to perform the ceremony, would be able to load up the ceremony and force the participants to say and affirm any of the religious doctrine. Start them at Genesis and take them through as many hateful sermons about same-sex life as possible. Why would any couple want to pay to hear this in a ceremony that is supposed to embrace and celebrate their future?

      • That’s the beauty of having control of your premises and exclusive rights for a videographer. Security at the front door does full pat-downs and inspections for electronic devices.

    • Ministers DO only offer one kind of ceremony- the Christian kind. People who do not believe the Bible, if they are reasonable, should find a minister and venue that caters to their personal beliefs. For the same reason that I didn’t get married in a mosque. No matter how much I may want to be married in a mosque because I love the architecture or whatever…that institution was not built to provide the thing that I want, and should not be forced to. I have no right to force my way in, and less right to coerce a Muslim cleric to do a Chrisitan ceremony for me. I don’t know what kind of narcissistic world people live in who think otherwise, but apparently there exist homosexual couples with that mentality around. I suspect it’s more about bullying and coercing their worldview and lifestyles into acceptance. Cheat to win.

    • This text is often cited in wedding ceremonies:

      Matthew 19:4-6
      And He answered and said to them, “Have you not read that He who made[a] them at the beginning ‘made them male and female,’[b] 5 and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’?[c] 6 So then, they are no longer two but one flesh. Therefore what God has joined together, let not man separate.”

      That does not lend itself very well to the blessing and solemnizing of a same sex wedding, does it? I can’t think of any bible verse that does.

  4. “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 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.”

    Did you miss a “not” in there, between “would” and “be?”

  5. What is problematic is the interpretation of anti-discrimination laws to compel the provision of a particular type of service.

    For example, let us take the example of Fatima worshippers . Many people morally object to their worship, believing it to be wicked, damning sin. And yet, despite that, I do believe that anti-discrimination laws properly apply to prohibiting people from refusing to deny off-the-shelf goods or services to people merely because they are Fatima worshippers.

    And yet, it would not properly apply to requiring a sculptor to sculpt a Lady of Fatima idol. Many people believe that sculpting an idol for idolaters is a sin. Furthermore, refusing to sculpt the Lady of Fatima is not discrimination against Fatima worshippers if the sculptor does not sculpt the Lady of Fatima for anyone- Fatima worshipper or Jewish, black or white, homosexual or heterosexual.

    Same principle applies here. This does beg the question, though. I am not aware of a case where a Fatima worshipper sued a sculptor for refusing to offer to sculpt an idol, or sued a minister for refusing to offer to officiate a worship service for the Lady of Fatima.

    • I think the question is whether a person can refuse to sell a Fatima worshipper an off-the-rack sculpture? Does the hypothetical same-sex couple require more/different things in the ceremony than a straight couple. With my officiant, we chose a standardized ceremony that he offered, and swapped a few passages for some other passages, and called it a day.

      Keep in mind this is a secular business, not a religious one. Can a restaurant owned by members of one religion refuse to serve other members of the same religion who have been “shunned” and thrown out of their sect? What if they themselves would be shunned as a result of serving those excommunicated members?

      • I think the question is whether a person can refuse to sell a Fatima worshipper an off-the-rack sculpture?

        If there is a law against religious discrimination, no. But offering off-the-shelf sculptures is different from actually sculpting an idol.

        Does the hypothetical same-sex couple require more/different things in the ceremony than a straight couple.

        Wedding ceremonies are not off-the-shelf (unlike tuxedoes and veils). One can not have, for example, a Catholic same-sex wedding ceremony.

        • Wedding ceremonies are not off-the-shelf (unlike tuxedoes and veils). One can not have, for example, a Catholic same-sex wedding ceremony.

          They can be, depending, of course. One could, hypothetically, conduct a standard mass, blah blah. You couldn’t force it in a church with a priest, because a church is by definition, not a public accommodation. But this chapel is not a church.

          Many officiants offer standardized ceremonies that require nothing more than “insert name here ______” at the appropriate places. The standard ceremony that we all know from tv requires no changes at all based on the sex of the couple. If the business in question offers that ceremony to straight couples, can they withhold that from same sex couples?

            • Who cares what the officiant thinks? Who cares what the waiter thinks when he serves me my hamburger? Say the stupid day’s special, and get a move on. Don’t advertise yourself as open to the public without actually being willing to do what that entails. Sometimes you might have to say the words, if not doing so means that you are discriminating against an enumerated class, personal religious belief or no.

              • You have to drop the waiter-pastor comparison–it’s ridiculous. One is am employee, and no law requires him to say anything. The other is engaged in a religious ceremony, and works for himself. No comparison whatsoever.

                • What of a restaurant, where the owner does not want to serve unmarried women, because he feels it is against his religion? The owner also waits the tables himself. Can he be compelled to serve unmarried women against his religion? Can he be forced to interact and speak with them to take their orders, though his own religion dictates that he should not?

                    • So you agree that an individual can be compelled by the government to speak/express in a business context, even if it is against their religion?

                      Under your proposal, you can be forced to utter words against your religion because your services are being offered to the general public. In the second example, you say they should be allowed to discriminate on the basis of religion despite their services being offered to the general public….?

                      In the end who cares what a business thinks? If the business’s purposes are so intertwined with religion that the two cannot be separated, then simply register as a religious organization. Problem solved. But secular businesses should not be allowed to discriminate on the basis of religion, or any of the other enumerated classes.

                    • But secular businesses should not be allowed to discriminate on the basis of religion, or any of the other enumerated classes.

                      In this case, the business is offering the same service- opposite-sex weddings- to all people, whether black or white, Mormon or Protestant, homosexual and heterosexual. By definition, offering the same thing to all people is not discrimination.

                    • What? You need to look up free speech. Interaction with customers in order to take orders and discern what they need is NOT forced speech, and is not a free expression issue, at all. The owner can be insulting, speak in pig Latin, be rude as he wants, but they still have to be able to purchase food, and the food isn’t speech.

                    • No, the owner cannot insult one class of customers, and not the other, even if served them both food in the end. That would still be a successful lawsuit.

                    • Absolutely, completely, dead wrong. As long as you are not discriminating in service availability because of race, and that has to be proved, then you just lose business. Yes, if your policy was to treat Jews badly and it could be shown to be discriminatory and rise to the level of harassment, you might have a suit. But the public accommodation laws guarantee service, no exclusion, no price differences, no civil rights violations. You can make faces, sneer, be horrible, but as long as you deliver the good, there’s no violation. Here’s New York-–show me where being rude fits. It doesn’t. It’s wrong, but not illegal.

                    • Correct. One could have a Nazi-themed establishment, with liberal applications of anti-Jewish slurs on the walls and the menus. If the mere presence of pro-Nazi slogans and anti-Jewish slurs in a public accommodation were to constitute a violation of anti-discrimination laws, that would raise serious First Amendment concerns.

                  • Did you read the piece? What he says is,

                    ” For all the reasons I mention in my discussion of workplace harassment law, I believe that hostile public accommodations environment harassment law is itself unconstitutional. But its existence also shows that workplace harassment law is indeed starting us down the slippery slope to broader speech restrictions.”

                    He’s right, of course. There are lots and lots of unconstitutional speech restrictions, most of them put in place by speech-censoring liberals, who disgrace their heritage….it takes a while to get them all knocked down. Volokh isn’t beloved–he’s just a rare, moderate, unbiased Constitutional scholar who knows his subject, as you do not.

                    Not that I don’t love you, deery!

                    • He feels that it is unconstitutional, but acknowledges that the courts thus far do not agree with his reasoning.

                    • Some people could argue that the mere presence of gays creates a hostile public accommodation, if speech that merely causes discomfort (without any aggravating factors) were prohibited under hostile public accommodation laws.

                  • @ deery: Professor Volokh has already given the definitive and well-grounded arguments on this. You keep flogging the same straw men, to no avail.

              • So performing a marriage is like serving a hamburger? Any enumerated class can just run roughshod over anyone’s religious beliefs? The first makes you sound like a special kind of stupid, the second is NOT what the First Amendment is all about, but what it was written to prevent.

              • Deery, I’m terribly sorry, but your analogies are so bad.

                If your analogy about a restaurant made any sense, you’d be ordering a waiter at an Italian diner to give you Peking Duck, or else get sued.

          • Saying “it’s not a church” is splitting hairs. A Bible book store isn’t a church either. They can’t be compelled to sell specific types of books.

              • Refusing to officiate same-sex weddings for anyone– black or white, Mormon or Protestant, homosexual or heterosexual- is not discrimination.

                • It is if you are a business offering these services to the general public. You can’t offer them to one class and not the other.

                  • I do not think anyone claimed that offering same-sex weddings for whites, while refusing them for blacks, is beyond the reach of anti-discrimination laws.

                    I have yet to hear an explanation as to how refusing to offer same-sex weddings for anyone– black or white, Mormon or Protestant, homosexual or heterosexual- somehow constitutes discrimination. They are all being treated equally.

  6. Jack, for those of us who have been following homosexual foment of the last decade or so, this is not the least bit surprising. We know that the rainbow movement has a dark underbelly, and a vindictiveness that is hard to fathom.

    People getting sued, bankrupted, even thrown into prison for refusing to acknowledge SSM is the icing on the cake to most of the activists I’ve encountered.

    SS”M” was just the ruse, a Trojan horse gift for the gullible before the sacking.

  7. This might be instructive.

    http://www.thenewcivilrightsmovement.com/davidbadash/how_many_lies_is_the_religious_right_willing_to_tell_in_the_idaho_for_profit_wedding_chapel_story

    Highlights –
    Until recently, the business’s website said:
    “We also perform wedding ceremonies for other faiths as well as civil weddings“.

    That’s still in the Google cache as of 7th October.
    http://webcache.googleusercontent.com/search?q=cache:KX-sH1Pi8HgJ:hitchingpostweddings.com/about/+&cd=1&hl=en&ct=clnk&gl=us

    No complaint has been lodged. Apparently the business has started the process of being registered as a religion-connected rather than purely secular entity, as it was until two weeks ago. De facto, it has already changed to that by no longer performing non-Christian ceremonies.

    See also http://www.cdapress.com/news/local_news/article_129c54cc-3dda-5868-8278-838cde92e17e.html

    While one might wonder at exactly what theological convolutions were involved in deeming Hindu, Muslim, Jewish, Buddhist, Taoist, Shinto and Atheist ceremonies as being “in accordance with their religious beliefs”, but same-sex marriages not, the fact is that courts do not have the power, nor should they have the power, to speculate about that. We must take them at their word, that this is not the result of anti-gay animus that has nothing to do with actual religious belief..

    They now only offer “traditional christian ceremonies”,, so have changed the nature of the business. It allows them to legally exclude gays now, at the price of excluding other, non-Christian custom.

    • All of which is irrelevant to the free speech issue, which doesn’t require dealing with the religious issue at all, as I see it. If the state can’t force a child to say the pledge of allegiance, it can’t force a citizen to say the words in a ceremony that citizen objects to, for any reason…and the government can’t judge the reason. He doesn’t want to say the words, and that’s enough.

      • They do 4 weddings a day. They (used to) hire rabbis, hindu priests, etc to do those ceremonies. They (used to) get civil marriage celebrants too, because that building has been used for civil ceremonies for a century. It’s an old tradition.

        As of last week, it’s now “traditional marriages” only. No catholics. No jews. No gays. Thereby breaking a century-old tradition, where generation after generation, regardless of religion, got married there.

        No complaints either, it’s not as if anyone has brought suit against them.

        They, as commercial lessees of the building, have every right to change their business – into an “adult novelties” store, a paint shop, or whatever the local zoning regulations allow. Even a religious-based business analogous to a church-owned bookstore. Thus being able to fully comply with the law, while turning away catholics, jews, atheists and gays.

        No-one has ever said differently. When they ran a business as a “public accommodation” with no religious nature at all, then no, they couldn’t ban gays from having a civil ceremony there, not legally anyway.

        Now they can. They no longer are classed as a public accommodation, the business has now acquired a religious nature. No more hiring rabbis, no more employing catholic priests. No more civil ceremonies.

        This has never been about “forcing speech”.

        • If it turns out they are wrongly motivated and of a bad attitude, that doesn’t undermine the goodness of the protection they are seeking. The protection itself is still right, whether or not their hearts are.

          • To clarify: It’s like complaining that some truly guilty people get off as not guilty because of Due Process. We don’t then complain that Due Process is unfair or wrong.

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