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That didn't take long

It took about a week from the imposition of homosexual "marriage" by judicial fiat in Idaho for the issue of forcing ministers to perform same-sex "weddings" to arise.

Now, let me make something clear up front, because we're getting some carping about the allegedly misleading nature of the story as told in conservative media. (I'm seeing it on Facebook, even among sympathetic people.) No, the city of Coeur D'Alene is not telling all ministers within their jurisdiction that they have to perform homosexual "marriages." More on how the distinction is made in a moment. And no, the city hasn't yet actually arrested or brought charges against the particular couple in the story. Rather, the couple's pro bono attorney with the Alliance Defending Freedom has, wisely in my view, given the circumstances, acted pro-actively to prevent the city from doing so.

So here's the story, in a nutshell. The Knapps are a couple who run a marriage service in Coeur D'Alene across the street from the county clerk's office. They perform weddings at their for-profit wedding chapel for a fee. They are both officially ordained ministers--setting aside for a moment the question of what it means for a woman to be an "ordained minister." Legally, they are, and that is what is relevant to this case as a precedent. I'm also setting aside the question of how wise it it to perform weddings for strangers as a for-profit business. The Knapps give the couples they marry information about what marriage should be, which is a good thing as far as it goes. But the point is, they perform specifically ministerial duties at the Hitching Post Wedding Chapel in return for a fee. Got that?

The city has a homosexual rights ordinance that says that you can't discriminate on the basis of "sexual orientation" in public accommodations. Now, just as many of us had pointed out, this sort of ordinance causes all sorts of trouble in itself, but it might not cause people in wedding businesses to be forced to participate in homosexual "weddings" if a state doesn't recognize homosexual "marriage." (Sometimes, with sufficiently activist judges, that limit is not observed. Elaine Hugonin was fined for not photographing a purely informal lesbian ceremony in a state that didn't even recognize civil unions!) In other words, the intersection of homosexual "marriage" with non-discrimination law creates a probability of new instances of persecution of Christian businessmen. Sure enough, that's how the town of Coeur D'Alene took it: As long as homosexual "marriage" was not recognized in the state, the Knapps were protected from being forced to use their wedding chapel and their ministerial legal prerogative to perform homosexual "weddings." But, said the city attorney back in May, if homosexual "marriage" was recognized in the state, then the city ordinance would apply to the Knapps' business. Note here: The city attorney (probably questioned by a newspaper) expressly named the Knapps' business as being, in his view, probably required to provide homosexual "weddings" under the legal circumstances that now obtain. ADF says that city officials have confirmed this privately to the Knapps as well.

Last week, a (presumably) homosexual man tested the waters, calling up the Knapps and asking about homosexual "marriage" services. The Knapps said that they won't do them. So now the legal situation is in place, the city attorney already said what he thinks that means, and they have flown their flag and discriminated. What's going to happen? Naturally, they're worried that the penalties of the city non-discrimination ordinance will be applied to them.

They engaged legal help from ADF, and fortunately, ADF doesn't take the "Snopes all-is-well" view of these things. Rather, ADF has acted preemptively, seeking a restraining order against the city to prevent the city from prosecuting the Knapps. (Side note: The ADF seems to be in the news a lot lately, doing really good and important things, fighting in the front lines. If you want a good place for your donations to go to, you could do worse than to give to the ADF.)

I've seen a number of criticisms on Facebook from Christians who don't want (God forbid) to be alarmist and who are offended by the fact that this story is being reported before a) all ministers are actually being threatened in this way and b) the Knapps themselves have actually had charges brought against them. This is fiddling while Rome burns. Both the ADF's own version of the story and Todd Starnes's version are admirably clear as to what is actually happening. The headlines might be regarded as "click bait," because they are so startling, but that does not make them intrinsically dishonest. It is entirely reasonable that the author should expect people to read the article that goes with the headline! Moreover, the city attorney's comments were made to a not-particularly-conservative news source, the Spokesman-Review, so, even if one holds an extreme view that one should never believe anything one reads in a "conservative" news source, this story is for real. (Ryan T. Anderson's story on this is somewhat less clear than Starnes's or the ADF's. One might think from reading Anderson's column that the city has actually brought charges against the Knapps already.)

When we start doing faux debunkings that make ever-more-fine-grained distinctions so as to quell "alarmism," we are being foolish. At some point it starts to sound like this:

Headline: Government Takes Out Innocent People and Shoots Them Without Trial!
Debunker: Now, stop being so alarmist. The only innocent people being shot without trial are those whose last names start with the letter P. Sheesh, this is so dishonest. Fellow Christians, let's not be dishonest like this. Let's not manipulate the truth!

The fact of the matter is that the city is saying that it can coerce a distinctively ministerial function of performing same-sex ceremonies in a religious service. It's bad enough that justices of the peace and town clerks are forced into endorsing homosexual relationships in these legal situations, but we were always told that homosexuals wouldn't have a right to a religious service with a coerced minister. Surprise, surprise! They lied. We didn't see the little asterisk, "Unless the minister performs the service for a fee."

Moreover, we should have seen the handwriting on the wall in the way that use of church premises has been treated legally in the past. Consider this: Laws on "public accommodations" have been applied explicitly to churches and to homosexual ceremonies if the churches rent their premises to non-members for weddings in return for a fee. So even the, "This isn't a church building" response falls to the ground. The Hitching Post happens not to be a church building, but the government may indeed decide that your church building is offering a "public accommodation" and that you must therefore rent it for homosexual "weddings." So how would this apply to your pastor?

Well, that raises a further point: Most ministers, even when performing weddings for members of their own congregation in their own church building, do receive a fee. Sometimes it's considered a tip or a gratuity rather than an official fee. Sometimes it is waived for members. Sometimes it isn't charged. But any wedding planner will tell you to include a fee for the minister in your expected expenses. Very probably the Hitching Post came to the attention of the Coeur D'Alene city attorney because the entire thing is a free-standing, for-profit business, but if the "for a fee" point is pressed, why should we assume that this would not apply to at least some ministers performing weddings in their own churches? What if a particular minister is clear and definite about charging a fee? A particular minister might treat this matter very much as churches treat the use of their premises: He might say that, if both parties are non-members, he will at least in some cases perform the ceremony, but the couple must pay a set fee for his service. Or he might charge a fee to members as well. In any event, if the fee is a set price for the public and if the service is ever offered to non-members, it is not terribly implausible that the "public accommodations" law would be taken to apply.

Aside from that possibility, the Knapps' situation is already outrageous and is already what we were told would never happen. Kudos to the ADF for taking the case and for pressing it aggressively.

Comments (9)

Interesting, level-headed article, Lydia.
It got me to thinking, the state basically controls who can perform marriages, correct? ("...by the power vested in my by the State of..." and all that). Could we eventually have a situation where the State says, "OK, so if you don't want to marry two SS persons, we won't sanction any of your marriages." In that case, the pastor would basically be stripped of his ability to legally marry two people, but not religiously marry two people. Christians, in this sense, would lose the right to marry, at least by the States standard, unless they went to a non-religious Justice of the Peace; or to a pastor that doesn't have a problem marrying two SS persons.

I'd wondered that before myself. I have never looked into it. I _think_ that right now if you are an ordained minister or clergyman in any denomination you automatically get that power. But what about little, tiny denominations? I am _quite_ sure that there is no "registration" process for denominations in the U.S. and that Baptists, in particular, would never submit to one. And a good thing, too. So how comes it to be that small denominations' ministers have the authority vested in them to perform weddings? I don't know. I've never investigated it. Right now, it seems to be extremely automatic and seems to "come with" ordination in the country. So I'm hoping that means that any sort of attack such as you mention would be an uphill battle for the government.

Other countries do separate the civil marriage from the religious one. Thus, you would get "married" by some official for state recognition, and then get married in your religious ceremony for the religious one. Given the current direction of things here, not such a bad idea.

Also, it is perfectly reasonable to take a preemptive approach to this sort of thing, and most jurisdictions allow you to file a declaratory judgment action to test the constitutional validity of a law, statute or ordinance that affects you, without having to go through the "break the law, get fined, then sue" rigamorole first.

Well, I assume the "declaratory judgement" thing is what the ADF attorneys are seeking. The Knapps have not been fined. They are asking the courts to state, on constitutional grounds, that the city cannot fine or jail them.

I disagree that a strict separation such as there is in Europe is a good direction to go. The way things presently are does not seem to me (I looked into it a little) to give a loophole for the concern about "pulling" a pastor's ability to perform marriages. Moreover, if the state did pull it, that would be _their_ action, and we would be no worse off vis a vis that pastor than if it were separated for _all_ pastors. Let them do the aggressive thing if they're going to do it. Let's not go looking to strip pastors of their prima facie power to perform weddings. There is no way in which that is to our advantage.

I looked up the laws in most states, and it's pretty simple. The pastor either has to file his ordination documentation with the state or, sometimes, just _be_ an ordained clergyman and file the particular marriage license within a given period of time. The latitude is right now so wide that there is no such thing, as far as I can tell, as the state looking into what you believe or whether you are a "legitimate" clergyman or anything like that. Even a "cult-like" or extremely small denomination can ordain you, and bingo, you have the power to perform weddings. I think we should keep it like that and, if anyone is going to try to make a heavy-handed change, let _them_ try to do it and encounter the inertia of the present system and the constitutional implications, which would be fought out good and hard.

Essentially, I don't think we want to say that "religious" marriage is some purely private thing. It's a _good_ thing for the state to recognize clergymen as capable of performing marriages.

I read that in some states now any layman 18 or older can get a one-day officiant's license to perform weddings so that a friend or family member who isn't even clergy can perform your wedding. So it seems like right now the states are not treating the power to perform a wedding as something for which you have to be specially qualified. It's given out pretty freely. That is all to the good in the present climate, and since that is the situation, certainly clergymen should have the power, so I think we shouldn't "mess with success" there. It seems likely to me that the attack will come in another legal form--possibly in connection with seeking fees for the service, which the state will then treat as a "public accommodation," as suggested in the main post.

I think you are right - it's the public accommodation issue that will carry the weight.

Apparently some states define "public accommodation" very broadly, and some not so broadly. For the former, virtually business whose premises are normally available for commerce qualify by that very fact. In the latter, it's a little more finely drawn, and it is at least theoretically possible for a business to have premises in which commerce takes place that are not a public accommodation. For example, a consultant who always comes to you does not operate premises that are normally available for commerce. But likewise, a consultant who always comes to you except for unusual pre-arranged appointments does not have premises normally available for commerce. In the Knapps' case, it is up to them to make the case that their services were not held out to the general public.

I cannot help but think that (a) in any state in which the state definition is more carefully drawn than federal rules provide, the business is likely to get the short end of the stick: even if you survive a challenge on state law grounds, you may not survive on federal law grounds - as long as you have the bad luck to get a federal judge who insists on interpreting "sexual orientation" as including acts of sexual behavior (which is pretty common at this point), because even if federal law only has orientation, that won't much matter. (b) There MUST be gray areas of things that really and truly are in the middle between "definitely not public accommodations" and "definitely public accommodations." And it seems likely that no matter how gray the reality really is, there will be courts galore which will insist on treating every such entity that is not "definitively not a public accommodation" as landing in the other category - effectively repudiating the true ambiguity in the definitions and the meaning of the very concept.

So, if you are a very small entity that still has room to re-structure how you do business, and you are sure you don't want to cater to gay lifestyles, then the writing is on the wall: re-structure to cease to be even potentially a public accommodation. Make your business over so that you have selectivity with regard to who you provide services, (and even better, make your selectivity known to bear on many different grounds - and on NO SPECIFIC GROUNDS AT ALL - early and often, so that when you get gays asking for services you can deny them on other grounds or on no specified grounds at all).

Wherever "public accommodation" is not very broadly defined, one would think that a church could easily argue that it is not a "public accommodation" as regards renting out its space, even if it does sometimes rent the space. Still more a pastor who sometimes performs weddings for non-members, whether he accepts a fee or not. In the former case, there could be gazillions of things the church wouldn't rent out its space for--dances, for example. Black masses. Secular rap concerts. On and on and on. In fact, one would think that the things the church would rent its premises for would be far outnumbered by the types of activities for which the church would refuse to rent its premises. Similarly with a pastor. He might well refuse to marry a couple who were living together or who were not Christians, for example.

However, this link that I provided in the main post


definitely argued that Washington State, at least, would probably interpret a church as "offer[ing]...use of those accommodations or facilities to the public for a fee" if this were done *at all*--in other words, that WA state was an example of a state that would interpret "public accommodations" very broadly and as applying to churches. In that sort of state, I would think any pastor would be at risk if he _ever_ married two non-members of his church in return for a fee.

Btw, ENDA hasn't passed, so technically "sexual orientation" is not included in federal law.

Another thing: The local audience with which I became intimately familiar in 2009, the one passed in my own city, expressly included sexual acts in its term definition of "orientation." I wouldn't be surprised if that is now standard for ordinances and laws on this subject. Why bother relying on a judge to interpret "orientation" to include acts when you can just put it in there explicitly and get it passed that way?

It looks pretty unambiguous to me that the Knapps do offer their services to the public. However, the constitutional issue arises in that those are specifically religious services that depend upon their status as ordained ministers. Prima facie there is a freedom of religion problem with coercing members of the clergy to offer their distinctively clerical services against their consciences, regardless of whether they are operating a public accommodation. Ryan Anderson points out that the state of Idaho has a state version of the Religious Freedom Restoration Act, which is prima facie relevant here as well.

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