Is Idaho forcing pastors to conduct same-sex weddings or face penalties?

Question

According to this article from "ADF" and this in the Washington Post, the city of Coeur d'Alene is requiring the Knapps, an ordained couple, to conduct same sex weddings or face penalties for discrimination.

Donald and Evelyn Knapp are apparently ordained ministers who run The Hitching Post, a chapel in Coeur d’Alene, Idaho, at which they conduct weddings. (This strikes me as quite similar to many ministers’ practice of charging to officiate weddings when they are invited to do so at other venues.) Coeur d’Alene has an ordinance banning discrimination based on, among other things, sexual orientation in places of public accommodation. Earlier this year, after a federal judge in Idaho held that Idaho had to recognize same-sex weddings, a City of Couer d’Alene deputy city attorney was quoted by a local TV station (KXLY) as saying,

“For profit wedding chapels are in a position now where last week the ban would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit,” Warren Wilson with the Coeur d’Alene City Attorney’s Office said….

“If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation,” Wilson said.

Is this a "real" case or is there something that I'm missing? Is this law actually being enforced in Coeur d'Alene?

This law seems precisely tailored to prey on the fears of pastors like myself. It seems amazingly broad, and the stories have a whiff of sensationalism. If real, this seems like an religious liberty v. discrimination case that would ultimately be very far reaching.

Answer 1

Is Idaho forcing pastors to conduct same-sex weddings or face penalties?

Yes and no:

• Yes:

  • It's a real (albeit recent) story
  • There is a lawsuit, and it is in Idaho
  • The people involved are "ordained Christian ministers"

• No:

  • It's a city (Coeur D'Alene) ordinance, not the state's (Idaho)
  • That the city "would" enforce the bylaw is the opinion of the Deputy City Attorney
  • The lawsuit is a restraining order and injunction to prevent the city's enforcement
  • The ordinance says that "Religious corporations and associations" are excepted from the by-law, and that the by-law doesn't intend to alter or abridge other laws like the First Amendment

In summary:

• The ordinance is meant to force commercial businesses, which provide services to the public, to do so without discriminating on the basis of sexual orientation and/or gender identity/expression.

• It applies to commercial businesses, religious entities are exempt.

• The claim is that the place in question is a for-profit business and not a church

• The counter-claim seems (in my opinion) to be that the wedding service, decoration and accessories, as well as the pastors, are "religious".

---

Is it being enforced?

There is online evidence that the lawsuit exists, and that the ordinance exists.

I saw no evidence that the city is enforcing the law yet. The following paragraphs of the lawsuit say that according to the city attorney, the law "would" apply:

317. Mr. Knapp asked if the Coeur d’Alene anti-discrimination ordinance required him and the Hitching Post to perform same-sex wedding ceremonies.

318. Wilson or Gridley responded that the Coeur d’Alene ordinance would require Mr. Knapp to perform same-sex wedding ceremonies and that Mr. Knapp was not exempt from this requirement.

The lawsuit is asking for a restraining order and an injunction, among other things, so to some extent it is pre-emptive (perhaps a small extent: they do seem to have reason to believe that the law would be enforced given time).

---

Do the ordinance and lawsuit exist?

The copy of the lawsuit which is linked in the first article of the OP, dated 10/17/2014, quotes city "Ordinance §9.56".

I haven't necessarily found the ordinance online.

Using Google I found two links which are labeled as the "proposed ordinance": link and link.

And, here is an extract of the ordinance from the official Coeur d'Alene web site: this extract only includes the portion which prohibits discrimination when renting housing.

---

Does the ordinance 'force pastors'?

Both copies of the "draft legislation" include a section:

9.56.040: EXCEPTIONS

A. Notwithstanding any other provision herein, nothing in this Chapter is intended to alter or abridge other rights, protections, or privileges secured under state and/or federal law. This ordinance shall be construed and applied in a manner consistent with First Amendment jurisprudence regarding the freedom of speech and exercise of religion.

B. This chapter does not apply to:

1. Religious corporations, associations, educational institutions, or societies.

According to the lawsuit, there's a city attorney who thinks that the ordinance applies to weddings; for example, the lawsuit quotes this newspaper article:

“I think that term is broad enough that it would capture (wedding) activity,” city attorney Warren Wilson said.

Some further relevant paragraphs from the lawsuit include (the emphasis is mine),

286. That article stated the following (emphasis added): Wedding venues that turn away gay couples may violate local laws, such as Coeur d’Alene’s prohibition on discrimination based on sexual orientation. The provision adopted by the City Council last year applies to housing, employment and places of public accommodation, including businesses that render public services. “I think that term is broad enough that it would capture (wedding) activity,” city attorney Warren Wilson said. Similar laws have applied to florists, bakeries and photographers that have refused to work on same-sex weddings in other states, Wilson noted. “Those have all been addressed in various states and run afoul of state prohibitions similar to this,” he said. “I would think that the Hitching Post would probably be considered a place of public accommodation that would be subject to the ordinance.” In Washington, no clergy person is required to marry a couple if doing so would violate the dictates of their faith tradition. Idaho does not have a similar exemption in place, but religious entities are exempt from the Coeur d’Alene ordinance, so pastors in the city are not obligated to perform same-sex weddings. But any nonreligious business that hosts civil ceremonies would fall under the city law, Wilson said.

and,

308. Mr. Knapp asked Wilson if the Coeur d’Alene anti-discrimination ordinance required him and the Hitching Post to perform same-sex wedding ceremonies.

309. Mr. Knapp also asked if he was exempt from the ordinance since he was an ordained minister.

310. Wilson responded that Mr. Knapp would have to perform same-sex wedding ceremonies because of the Coeur d’Alene ordinance.

311. Wilson also responded that Mr. Knapp was not exempt from the ordinance because the Hitching Post was a business and not a church

A large part of the lawsuit consists of evidence which tries to prove that the Knapps and the business are religious.

Answer 2

In a word, "no".

Recent news includes, Hitching Post switching to 'religious corporation' to avoid same-sex marriages, which says,

So, on October 6, the Knapps filed paper work with the State of Idaho claiming they are now a "religious corporation." Gridley said that if they now fall under that distinction they would not violate the ordinance.

"At that time they were not a religious corporation, so the facts have changed from the time we talked to them originally to what they are now," Gridley said.

The exemption from the ordinance is because they are now a "religious corporation".

The ordinance applies to secular businesses:

The Coeur d'Alene city attorney confirmed in a letter Monday that ordained ministers operating a for-profit wedding chapel are in violation of a city ordinance for declining to marry same-sex couples.

The letter states that "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."

The same story is told in Coeur d'Alene Says Hitching Post Is Exempt From Gay Rights Law, which says,

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.”

It adds (the following opinion from the ACLU, not from the city attorney),

Leo Morales of the ACLU of Idaho said the exemption makes sense as long as the Hitching Post primarily performs religious ceremonies.

“However, if they do non-religious ceremonies as well, they would be violating the anti-discrimination ordinance,” Morales said. “It's the religious activity that's being protected."

I don't know but is it possible that, in the States, the decision whether to prosecute is at all political? If so it may be that political will is not in favour of prosecution:

UPDATE, 10/24/14, 11 a.m.: The group that helped create Coeur d'Alene's anti-discrimination ordinance says the Hitching Post shouldn't have to perform same-sex marriages. The Kootenai County Task Force on Human Relations says in a letter to the mayor and city council that the Knapps fall under the religious exemption in the law.