The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I noted Wednesday, the Couer d'Alene City Attorney concluded that for-profit chapels were covered by the city ban on sexual orientation discrimination: "if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance." But Boise State Public Radio (Jessica Robinson) reports that the city has apparently changed its position:
The city of Coeur d'Alene, Idaho, said a for-profit wedding chapel owned by two ministers doesn't have to perform same-sex marriages….
[City Attorney Michael] Gridley said after further review, he determined the ordinance doesn't specify non-profit or for-profit.
"After we've looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation," Gridley explained.
The Knapps' lawyer reports that "the Knapps have been contacted by the police about a complaint filed on Thursday by a same-sex couple who were turned away at the Old West themed chapel," but presumably—given the new stance—the City will refuse to prosecute. (The ordinance doesn't allow private lawsuits, only prosecutions.)
The Kootenai County Task Force on Human Relations, which (according to Boise State Public Radio) helped create the ordinance agrees, quoting unnamed constitutional experts: "When they are performing a religious activity like marrying people, ministers have the right to choose which marriages they will solemnize. That's why we don't think the public accommodation law applies to ministers making choices about performing marriages. So, if the only service offered is a religious wedding ceremony performed by a minister, then the law would not apply."
As I've argued before, I think more than just religious freedom is at stake here—the Free Speech Clause protects the right not to participate in verbal ceremonies, whether religious or otherwise, and whether they are pledges of allegiance (even ones without "under God") or the conducting of wedding vows (even ones that are secular). A secular freelance writer, for instance, has a Free Speech Clause right to refuse to write news releases for religious groups that he disapproves of (even if he generally takes commissions from the public), or articles praising ceremonies that he disapproves of. Likewise, a wedding officiant has a Free Speech Clause right to refuse to lead wedding ceremonies that he disapproves of. But at least I'm glad that, in this instance, the city has agreed that the ordinance doesn't apply.