The Volokh Conspiracy
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The letter, signed by the City Attorney, is here. It notes that, while nonprofits are exempted from the ordinance, for-profit wedding chapels are not: "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."
Under the same logic, a minister who officiated at weddings on the side, for a fee, could also be required to conduct same-sex ceremonies. The particular Coeur d'Alene ordinance might not apply to such an itinerant officiant, since it covers only "place[s]," and that might be limited to brick-and-mortar establishments; but similar ordinances in other places cover any "establishment," and if a wedding photography service is an "establishment" then a minister who routinely takes officiating commissions would be covered as well.
This strikes me as inconsistent with the Free Speech Clause and the Idaho RFRA, for the reasons I mentioned in my earlier post. Let me focus here on the Free Speech Clause: The Supreme Court held, in upholding a person's right to tape over a slogan on a license plate, that,
[T]he proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U.S. 624, 633-634 (1943) [the case securing a right not to salute the flag -EV]. A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind." This is illustrated by the recent case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), where we held unconstitutional a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized.
The same, I think, applies here. The First Amendment protects the right to speak the words in a wedding ceremony—words that have deep meaning to many officiants as well as to the parties—and the right to refrain from speaking the words. A system which secures the right to spread religious and moral messages inherent in the wedding vows must also guarantee the right not to convey those messages (including the message of approval of the wedding inherent in the act of officiating at it) in contexts that the officiant thinks unholy and immoral rather than sacred and right.
The right to speak in this verbal ceremony and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind." And this applies to people who speak for profit, just as it applied to the Miami Herald, which was a for-profit speaking enterprise.
The government can't require the employees or owners of a for-profit newspaper or motivational speaker service to say the Pledge of Allegiance as a condition of staying in business, just as it can't require noncommercially minded schoolchildren to say the Pledge. The government can't require such for-profit businesses to display "Live Free or Die" on their company cars. It can't require for-profit newspapers to publish things they don't want to publish. Likewise, it can't require for-profit officiants of verbal ceremonies (especially religious ceremonies, but secular ones as well) to say things they choose not to say.
UPDATE: A commenter asked whether, under this logic, businesses could refuse to talk to customers of a particular race, or to offer them goods. The answer is "no," because the rules having to do with speech that proposes a commercial transaction, or that conducts a commercial transaction in a nonspeech product, is less constitutionally protected—especially against speech compulsions—than other speech (including speech sold for money). Some simple examples:
- A newspaper may be required to run help wanted ads in a nondiscriminatory way (Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)) even though it may not be required to run editorial content that it doesn't want to run (Miami Herald v. Tornillo (1974)) and may not be barred from, saying, editorializing in favor of discrimination, or from engaging in allegedly discriminatorily unfair coverage of people or events.
- Advertisements may be required to include disclaimers that avoid prospective customers from being misled (Zauderer v. Office of Disciplinary Counsel (1985)), but religious and political speakers can't be required to include such disclaimers in their speech. Indeed, even charitable fundraisers can't be so required (Riley v. Nat'l Fed'n of the Blind (1988).
- Similarly, sellers of non-speech products may be required to include various disclaimers, but I take it that we'd all agree that a minister who officiates for pay can't be required to include government-provided disclaimers in his part of the ceremony (e.g., "the Commission for Civil Rights has determined that it's bad for women to swear to obey their husbands," or "50% of the users of the product you're about to buy end up returning it").
Note again that the distinction here is between commercial advertising (and speech that conducts a commercial transaction in a nonspeech product) on one hand, and other speech, including speech that is sold for money, on the other hand—it is not between financial transactions and purely non-financial transactions. Newspapers are for-profit businesses, too, but their speech is fully constitutionally protected against restrictions and compulsions (except when that speech, as in Pittsburgh Press, is itself a commercial advertisement).