Hitching Post
No, you can't force a minister to marry you by invoking an anti-discrimination law. Or at least that's what the Idaho city of Coeur d'Alene has told the owners of the Hitching Post, who had organized a lawsuit against the city out of concern they would be required to marry gay couples. The story got national attention at the start of the week because of fears that the couple who owned the chapel, Donald and Evelyn Knapp, would be fined or even jailed if they refused to marry gay couples.
The city originally told the couple as much, because it's a for-profit business. But now the city is backing off and has determined the Knapps can say no. Unfortunately the reason is not because a wedding ceremony is not a right and nobody of any race, sexual orientation, or religion should be able to demand that somebody must bless (in any definition of the word) their relationship. Rather, the city's anti-discrimination ordinance doesn't specify that a business has to be a non-profit in order to claim a religious-based exemption from the law. From Boise State Public Radio:
Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d'Alene city attorney Mike Gridley sent a letter to the Knapps' attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt. But 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. Court filings show the Hitching Post reorganized earlier this month as a "religious corporation." In the paperwork, the owners describe their deeply held beliefs that marriage should be between one man and one woman.
An American Civil Liberties Union representative gave the decision his nod of approval as long as the business is a "religious corporation" and as long as they don't perform non-religious ceremonies and then refuse to serve same-sex couples.
The timing of the filings and various complexities of the organization of the Hitching Post as a business prompted some additional intrigue throughout the week. Walter Olson of the Cato Institute explained it all from a libertarian perspective in his Overlawyered blog here. I decided not to engage in discussing the intrigue further because, though the technical components may matter in a legal sense, from a philosophical perspective, it shouldn't make a difference. The reasons why the Knapps don't want to marry any couple and their status as a profit or a non-profit or whether they also offered civil ceremonies should not matter. The only thing that should matter is that they didn't want to marry a couple for whatever reason they declared.
Why? Because the idea that a wedding ceremony is a public accommodation is absolutely absurd. Is there a service that is any less of a public accommodation than an actual wedding ceremony? The whole idea of a public accommodation laws (and don't read this as a general endorsement) is that the identity of the customer is irrelevant to the business transaction. A business operator's opinions on race or religion should have no reason to come into play when selling somebody gum or a hamburger or a ticket to see a movie. But a wedding is literally hiring somebody to tell you that you and your partner are awesome and are going to be happy and to enjoy life. A wedding ceremony is literally speech. The actual marriage certification process with the state is something else entirely. Marriage is a right. A wedding ceremony is not.
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