Author Archives: Brad Warbiany

Idaho Pastors Threatened With Jail Time Over Refusal To Marry Gays

Opponents of gay marriage have consistently predicted that legalization of gay marriage would force churches to perform the ceremony. Supporters have said that this was highly unlikely, and not the intent of legalizing gay marriage.

It appears the first shots have been fired in this fight, and it’s an extremely interesting case. As usual, in a case like this, hyperbole is flying FAR ahead of knowledge, so I’ll do my best to give you the whole picture. Hyperbole aside, the Alliance Defending Freedom–who I’m somehow now linking twice in a week?–gives a pretty solid summary:

The Hitching Post Wedding Chapel is across the street from the Kootenai County Clerk’s office, which issues marriage licenses. The Knapps, both in their 60s and who themselves have been married for 47 years, began operating the wedding chapel in 1989 as a ministry. They perform religious wedding ceremonies, which include references to God, the invocation of God’s blessing on the union, brief remarks drawn from the Bible designed to encourage the couple and help them to have a successful marriage, and more. They also provide each couple they marry with a CD that includes two sermons about marriage, and they recommend numerous Christian books on the subject. The Knapps charge a small fee for their services.

Coeur d’Alene officials told the Knapps privately and also publicly stated that the couple would violate the city’s public accommodations statute once same-sex marriage became legal in Idaho if they declined to perform a same-sex ceremony at their chapel. On Friday, the Knapps respectfully declined such a ceremony and now face up to 180 days in jail and up to $1,000 in fines for each day they decline to perform that ceremony.

First, of course, we need to make an assumption. The assumption is that anti-discrimination laws are just and good and necessary. There are many areas within libertarianism in which this comes into question. I do not intend to cover that here. As a result, we get into questions of competing rights regarding access to a “public accommodation” vs the Free Exercise protection of the First Amendment.

An example. If you own a restaurant, serving the public, and refuse to serve a married same-sex couple because their lifestyle offends your religious beliefs, you’re pretty clearly in the wrong. Why? Because your religious beliefs are not central to the service you perform. If you are a conservative Christian wedding cake maker or a wedding photographer who refuses to provide services, you’re also legally in the wrong. Operating a camera or baking a cake is not an inherently religious act. Barring services impedes a same-sex couple’s access to a public accommodation MORE than it impedes your right to Free Exercise of your religious beliefs.

When it comes to performing marriages, however, this changes. For example if you are a same-sex couple who wants to force the Catholic Church to host your wedding, you’re out of luck. In that case the religious purpose of the institution is key. It is clearly a religious institution for which performing marriages is a sacred rite, and you don’t have the right to force them to officiate marriages contrary to their sincerely-held religious beliefs. As a result, the Coeur d’Alene statute does have an exemption for religious institutions.

So where does the Hitching Post sit? Here’s where it gets complicated. Are they a “public accommodation” because they’re primarily a business, not primarily a church, performing marriages for a fee? Or are they primarily a ministry advancing the teachings of Christ through the marriages they perform, and should be exempt from Coeur d’Alene’s law based on the religious exemption. I’m 50 pages into ADF’s lawsuit, and I’m having a hell of a time figuring it out.

For example, even the facts asserted in the lawsuit suggest that the Hitching Post is primarily a business, situated where it is in a very opportunistic location out of convenience.

72. This current location is 524 N Government Way, Coeur d’Alene, Idaho.
73. In this location, the Hitching Post Chapel is approximately 300 feet from the Kootenai County Clerk’s office.
74. The Hitching Post Chapel and the Kootenai County Clerk’s office are located on the same street.
75. The Kootenai County Clerk’s office issues marriage licenses.
76. A person can walk from the Kootenai County Clerk’s office to the Hitching Post Chapel in roughly 1 minute.
77. Couples often do precisely this. They get their marriage license from the Kootenai
County Clerk’s office and walk across the street to wed at the Hitching Post Chapel.
78. Because the Clerk’s office is so close by, the Hitching Post Chapel is a very convenient and popular spot for couples wanting a wedding service.
79. Roughly 50% of Hitching Post customers come to the Hitching Post Chapel on the same day they receive their marriage license from the Kootenai County Clerk’s office.

Having been married in the Catholic Church myself, I can tell you that nothing I’ve read in the facts of this lawsuit suggest that the ministry offered by the Knapps is anything like the excruciating Engaged Encounter my wife and I had to sit through! And the 12-minute ceremony on youtube officiated by the Knapps doesn’t seem to carry the mass of the 1 1/2 hour Mass at our wedding…

Nor, IMHO, are they helped by the fact that they’re doing 1400 weddings a year, and don’t seem to offer any other religious ministry outside of the ceremonies they perform. They limit officiation of weddings to only themselves, but one can suggest that this is done to ensure their site is not used for same-sex weddings. They certainly don’t seem to have any issues officiating the weddings of other faiths:

Then, the Employee Policy specifies the following Rules and Regulations:
• Only the Hitching Post owners and employees may perform wedding ceremonies at the Hitching Post Chapel and other locations scheduled by the Hitching Post. Outside ministers may not perform wedding ceremonies at the Hitching Post Chapel or other locations scheduled by the Hitching Post. Brides and grooms may not invite outside ministers to perform such ceremonies. Outside ministers may come and stand alongside the Hitching Post owner or employee who performs the wedding ceremony. But only the Hitching Post owner or employee may perform the ceremony.

• In accordance with the religious beliefs and ministerial vows of the Hitching Post owners, Hitching Post owners and employees will perform ceremonies for those of different faiths and religious beliefs (so long as those marriage ceremonies are consistent with the beliefs set forth herein) because marriage is a common grace and creational gift bestowed by God upon all humans for the benefit of human society.

One can imagine that a same-sex couple bringing their own officiant [while still paying the Knapps full price] would not substantially burden the Knapps’ religious Free Exercise, but as you can read, their own policies ensure that this is not acceptable.

On the opposite side, the fact that they DO only perform the marriages themselves, and specifically DO provide quite a bit of Christian-oriented material to the couples they marry (see pages 28-31 of the lawsuit). I do honestly believe their religious beliefs are sincerely-held. I do believe they view their business as doing the Lord’s work, as their ministry to the world.

That’s why this is so hard. The question is not whether churches can be forced to perform gay marriages, but the degree to which certain businesses are religious or non. Coeur d’Alene city attorney Warren Wilson, while arguing that the Hitching Post probably falls under the “public accommodation” designation, had this to say:

“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.

Is the Hitching Post a religious entity, or is it a non-religious business? I have a feeling it’s going to come down to under what circumstances they’ve turned away traditional couples based on other violations of their Christian beliefs. If they have a history of turning away open atheists, or turning away Muslims, or perhaps frowning on Christian/Muslim unions, they may have a leg to stand on. In that case, they can show that they’ve turned away opposite-sex couples (and their dollars) based upon the sincere religious nature of their business.

But if they’ve got a history of taking money from pretty much any opposite-sex couple that walks through the door and it’s only the gays that they turn away, I think they may be considered a public accommodation. Even then, they have an extrajudicial way out. If they do allow same-sex couples to bring their own officiant, they would thereby be excluded from having to do the specific act (solemnizing the wedding before God), which I think many courts would view as not substantially burdening their Free Exercise.

So what does this all mean? It means we’re probably in for a very long, protracted legal battle. If this goes to a judge for ruling rather than some sort of settlement or extrajudicial recourse, it’ll probably be decided on grounds VERY unique to the specifics of the Hitching Post and their history of exerting their religious will vs acting like a for-profit business, and not on the wider legal issue of discrimination in general.

What does that mean? It means that this case will probably be useless when it comes to deciding future precedent, and will be highly technical. Of course, that won’t stop whichever side loses from considering it the end of their world.

Rant: People Who Don’t Link To Source Material

Earlier today, my new co-contributor Matt wrote about the ridiculous Houston city council subpoena on a group who was against the transgender bathroom-rights law.

Where did the original story come from? Right here at The Washington Times.

It’s a busy article.

It comes complete with a picture from the San Francisco gay pride parade. What does San Francisco have to do with Houston bathrooms? I’m not quite sure.

It has a minute-long vapid video featuring a reading of the first two paragraphs of the article, because apparently 300 words is such a weighty article that it elicits “tl;dr” from typical readers of the Washington Times.

And of course it has a rather superficial 300-word article touching only ever-so-slightly on the merits of the case. The article which doesn’t even summarize the basic legal rationale for the group who is challenging the subpoena. The basic legal rationale that’s so simple that I’ll summarize it for you in two sentences:

The law states that subpoenas may only ask for evidence likely to result in admissable evidence on the merits of the case and doesn’t violate various legal privileges. ADF asserts that the subpoenas are overly-broad and violate the law by asking for such wide-ranging materials (some of which are Constitutionally-protected expression and others that are attorney-client privilege or protections against nonparties to lawsuits) that it cannot possibly be within the law.

You know what the Washington Times article is also lacking? ANY GODDAMN LINK TO THE ACTUAL SOURCE MATERIAL!!

It’s not like it was hard to find. A 10-second Google search led me to the ADF web site. A prominent link on the front page of the site got me to their press release in the first 10 seconds on their site. And ADF, to their credit, linked both the subpoena and their motion to quash in the first paragraph. And it’s not like links are expensive. Hyperlinks are free.

So I read them. I realize, this is ridiculous in the days of blogging when everyone has an opinion on Supreme court decisions despite the fact that none of them ever actually reads the opinions. When I read the subpoena and the motion to quash, it was pretty apparent that the subpoena was overly broad. When you dig into it, though, there are a lot of areas of the subpoena that are quite likely to result in admissible evidence. Hence why in the motion to quash, you’ll see this statement:

The Nonparty Pastors respectfully request that the Court issue an order quashing their subpoenas. Alternatively, the Nonparty Pastors request an order modifying the subpoenas to clarify that they do not include (or a protective order declaring that the Nonparty Pastors need not produce) the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege, the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

In a lawsuit alleging that a city council unfairly determined that an insufficient number of petitions were gathered, the portions of the subpoena related to the records of petitioners are certainly likely to result in admissible evidence. The content of sermons discussing the Mayor, on the other hand, are clearly not. So if the city attorneys narrow the scope of their subpoena (as the WSJ–an entity which deserves kudos for actually linking the subpoena and motion!–reports they’re already backing away from), they’ll probably still be able to get the discovery information they need to prepare an adequate defense to the lawsuit.

Of course, IANAL, and it’s entirely possible that I got my legal analysis wrong. But what I do know is that I’ve already given you, the readers of The Liberty Papers, a more cogent (and more entertaining, I hope) analysis of the issues than Valerie Richardson of The Washington Times. And unlike Valerie Richardson, I actually gave you the links to go form you own opinion if you doubt my reporting in any way. Because frankly, my dear readers, you’re worth it!

Publications that give you opinion without linking to original source material are trying to keep you dumb. They either want you to keep coming directly to them for analysis (likely), or don’t want you to read the source material and realize they’ve gotten something terribly wrong. Or maybe they’re just terrified that you’ll click on the link and not come back. Or maybe all of the above. Either way, they treat you like infants.

Don’t let them get away with it. Demand better. This is 2014. I hate to use the term “mainstream media” in such a derisive tone that went out of style in about my third year of blogging–right about the time Sarah Palin started calling it the lamestream media–but even The Washington Times should have figured out how to hyperlink by now.

Ebola: A Consequence Of Austerity?

Kevin Drum, today, on how “slashing” funding for the NIH has resulted in us not having an Ebola vaccine:

What’s more, even without a vaccine we’d probably be better prepared to react to the Ebola outbreak if we hadn’t spent the past decade steadily slashing funding for public health emergencies. The chart on the right, from Scientific American, tells the story.

There are consequences for budget cuts. Right now we’re living through one of them.

Hey, my fellow Libertarians… We won! We trimmed government to the point where it could be strangled in a bathtub. Taxes are low. Regulation is minimal. Government spending is back at pre-WWI levels. We did it, and now we’re going to have to live without the nanny that we slaughtered. [sadface]

Oh, wait. No, that didn’t happen.

Government has grown by 59% in inflation-adjusted dollars since 1999. It’s grown from 17.6% of GDP to over 21% in the same time.

Clearly, we’re not at a loss for a vaccine because government wasn’t spending money. And whether you’re on the Left, the Right, or even a Libertarian, one can make quite a strong argument that research into cures or treatments for epidemic-level diseases may be a “public good”. It is quite true that shareholders for pharmaceutical companies find a lot more value in helping middle-aged men get erections than staving off the next extinction-level-event*. This sort of pure healthcare research is exactly the sort of thing that the market doesn’t do well, and has such widespread benefit to society overall to be worth it.

So. If we can agree that government’s spending a lot more money in inflation-adjusted dollars, and we can agree that both sides of the aisle view this sort of research as a true public good, worthy of public investment, why is its budget getting slashed?

Simple: science spending doesn’t buy votes.

The truth is that the government has plenty of money. They spend plenty of money. Even beyond this, a lack of money has never been a barrier to them spending money, whether they have to borrow it, or print it, or have the fed print it so they can borrow it from themselves. If something is important to politicians, they’ll find a way to funnel money to it.

In fact, the problem is similar to that of many government programs. They’ll find money for sexy new things like rail line extensions, but suddenly are broke when it comes to maintaining the lines they already have. Oh, and the lack of maintenance mentioned in that story cost more lives than Ebola has in the US.

Apparently the war in Iraq was worth $1T. The stimulus was worth $787B. Obamacare (Apr ’14 CBO estimates) will cost $1.383T over the 2015-2024 period.

Compare that to the NIH, which costs ~$30B/year.

It’s not a question of spending. It’s a question of priorities. Incremental scientific advancements to third-world diseases are important, and worthy of funding. But very few politicians will get credit for voting for that funding, so they let the NIH wither on the vine while they spend money on “important” things. That is the libertarian critique: the NIH could have been fully funded if the government wasn’t distracted–as they always are–by anything shiny.

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Changing of the Guard

To me, it’s a bit crazy that I’m one month from my 10-year blogiversary. It’s been a just under 9 years since Eric started The Liberty Papers, and merely May 2006 that he handed the reins over to me.

A lot has happened in the 8 years since. For some time, The Liberty Papers was riding high. The run-up to the 2008 election was big here, as was the initial fight between SoCon and Libertarian control of the Tea Party.

Unfortunately, things since have slowly waned. There are a lot of reasons for that, and I can’t speak for any other authors here at the site, but my own life has intervened and made blogging much more difficult. My career has progressed and my family has grown, my political stance has grown ever-more apathetic, and between these forces, I’ve allowed The Liberty Papers to fall off the map.

I want The Liberty Papers to be relevant again. And I know I don’t have the bandwidth to make it so. So I’m happy to report that I’m turning over the reins to someone who can devote his time, Kevin Boyd. Kevin has been an author here since the founding of the site, and is poised to return this site to its former glory — if not to exceed it. I’m excited to see it!

As for me, I’m not exactly going anywhere. Like most bloggers, I still do have ideas percolating in my grey matter that I need to get out. I hope that with the revitalization of The Liberty Papers, I’ll have a renewed audience for whatever madness I manage to emit. Writers can’t not write, so I’m looking forward to stepping into the background while still doing my part to make The Liberty Papers successful.

For our collection of active writers, and for those readers who have stuck with us in their RSS feeds while posting has fallen off, I thank you. I’ve been proud of what The Liberty Papers has been over the last ~9 years, and can only imagine where it can go from here.

Hobby Lobby

Now, before you all lose your collective shit, I want to remind everyone of one critical fact:

The Supreme Court doesn’t exist to make the morally right decision.

I’m going to repeat that, blockquote it, and bold the damn thing because it’s that important.

The Supreme Court doesn’t exist to make the morally right decision.

Now, I know that this may come as a shock to most of America. But then, Americans have never exactly had a good grasp of civics. In fact, some of the worst law comes from the Supreme Court trying to work a moral decision into the law. When you already know the outcome you want, and you start looking for any legal justification you can muster for that outcome, you’re bound to stretch in the wrong places.

No, the Supreme Court exists to make the legally right decision. And no matter your view on Obamacare, the mandate, religious liberty, and contraception, I think the Court in this case made an entirely justifiable decision that is consistent with the law.

Let’s break it down.

  1. Congress has declared in the ACA a compelling government interest in ensuring that women have insurance coverage for contraception.
  2. They have created a national health insurance mandate forcing employers (of a certain size, etc etc) to cover the cost of said contraception.
  3. In 1993, Congress passed the Religious Freedom Restoration Act, which requires that laws which violate someone’s religious beliefs must pass two conditions:
    • The law must be furthering a compelling government interest.
    • The law must be the least intrusive method of accomplishing its goal.
  4. Congress has created an exemption to the contraception mandate. If the mandate violates the religious beliefs of certain types of organizations, they have passed the burden of cost to the insurance provider or to the government itself.

So what’s the takeaway? Nothing in Hobby Lobby decision will stop women from having access to birth control. In fact, the way the system is set up, they will still have insurance coverage for free birth control!

Congress’ exemption ensures that insurance will cover these costs, even for women working for Hobby Lobby. This cost will not come out of the worker’s pocket. In fact, the very alternative accommodation that Congress created was pretty much the only reason that the Supreme Court didn’t force Hobby Lobby to pay for the insurance (from Lyle Denniston’s analysis @ SCOTUSblog):

Is that enough of an accommodation of the owners’ religious objection? The two key opinions on Monday seemed, literally speaking, to say it was.

Justice Alito wrote: ”An approach of this type . . . does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.” (The government’s interest here is to assure that women have access to the birth-control services.)

Alito’s opinion for the Court went on, saying that the dissenters’ on Monday had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in his separate concurring opinion, made the same point. And, in fact, he was more emphatic. Taking note of the “existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here,” Kennedy said flatly that “RFRA [the Religious Freedom Restoration Act] requires the government to use this less restrictive means.”

It is rather difficult to read those comments by those two Justices as anything other than a declaration that religiously oriented owners of closely held companies must be satisfied with letting the “middle man” take on, in their place, the obligation to provide the birth-control coverage. That, the comments seem to say, is good enough.

If there was no alternative accommodation in the law to cover the cost of insurance for contraceptives, the correct legal result would have been to force Hobby Lobby to pay for it. After all, I don’t think any justice disputed the idea that an insurance mandate for contraceptive coverage was NOT furthering a compelling government interest. The only question was whether the compelling government interest was satisfied in the least intrusive means consistent with the RFRA. The Court found that it was.

Now, back to the lede. Many of you out there think that it’s absurd that a corporation would be exempted from providing basic health insurance because God says contraception is abortion. And many of the rest of you think that it’s unconscionable that someone be forced to pay for something that goes against their most closely held religious beliefs; in essence funding murder. And the libertarians out there worry that if the government can make you pay for something that violates one of your First Amendment rights, there’s nothing they can’t make you pay for. These are all moral questions. These are not legal questions. The Supreme Court didn’t even try to answer these questions.

The Supreme Court found a legally consistent way to accommodate the compelling government interest declared in the ACA and the least restrictive means test demanded by the RFRA. And at the end of the day, lest I repeat it one more time, the net result is that Hobby Lobby employees will still have insurance coverage for all the free contraceptives they care to use.

Seems pretty cut and dried to me. This is much ado about nothing.

UPDATE: Now that I’ve actually read the ruling, I see an error in the above. The HHS accommodation for employers who have religious objection to these methods of contraception TODAY only applies to religious non-profits. It doesn’t apply today to for-profits. The argument of the court is that applying the accommodation to for-profit employers is a less-restrictive means to achieve the compelling government interest than the mandate, and for that reason the mandate violates RFRA. I would expect the HHS to quickly expand their accommodation in response to this ruling.

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