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Why Not Force Somebody Who Hates You to Perform Your Wedding Ceremony?

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And for the love of all that's good and holy, don't use "camp" as a wedding theme.
The Hitching Post

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