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Hitch Gays — or Else

The first case in which state orders ministers opposed to same-sex marriage to perform those rituals

You knew this was coming. The state (in the form of the Coeur d’Alene, Idaho, city government) has ordered the Hitching Post, a for-hire wedding chapel run by Donald and Evelyn Knapp, who are ordained Pentecostal ministers, to perform gay weddings. If they refuse, the city attorney says the Knapps would be in violation of the city’s non-discrimination law regarding public accommodation. Law professor Eugene Volokh picks up the story:

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.

Besides, says Volokh, it’s hard to think of a compelling state interest that would justify forcing the Knapps to knuckle under to the state. If the Knapps lose, though, any minister who accepts payment for his or her services could in theory be compelled to marry gay couples, or face legal sanction.

Naturally I agree, but I have every confidence that the social and cultural liberalism that dominates American legal culture will find stamping out any opposition to SSM to be a “compelling” state interest. We’ll see.

Inevitably churches are going to have to get out of the business of serving as agents of the state when it comes to performing weddings, but it still doesn’t seem that doing so would free pastors from these laws, as long as they accepted payment for their services.

This is, of course, another case of the Law of Merited Impossibility (which is, “It’s never going to happen, and when it does, you people will deserve it”). Remember when pro-SSM folks kept saying, “What does a gay couple’s marriage have to do with yours?” People like me pointed out that marriage is so entwined with our legal system that redefining it to include gay couples will have wide-ranging legal implications, especially regarding the First Amendment. And here we are. Such is tolerance.

UPDATE: Robert Tracinski, at The Federalist, says we are entering the Secular Inquisition:

Personally, I have no problem with gay people getting hitched, having weddings, and saying that they are “married.” I don’t have any religious objection, on account of not being religious, nor do I think gay marriages, given their very small numbers, will have any particular impact on the state of marriage as an important social institution. (Which, alas, has all sorts of problems of its own.)

But the test of liberty isn’t what happens to people who agree with the intent of a particular edict. The test is what happens to people who disagree.

He adds that he doesn’t want his secular, pro-SSM views sullied by association with the Secular Inquisition.



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