Category Archives: Equal Protection

Idaho Gay Marriage Lawsuit Moot – City Backs Down

I’ve covered the Idaho “Hitching Post” gay marriage case. I started with a relatively in-depth look at the legal issues involved on Monday, and then covered some inconsistencies in the history of the Hitching Post’s religious designation yesterday.

Today, though, it has all been resolved. The Hitching Post’s recent change from performing civil marriages as well as religious marriages to performing ONLY Christian religious ceremonies, and explicitly forming themselves as a religious business 3 weeks ago, have now exempted them from the anti-discrimination ordinance.

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.

Now, it’s partly incorrect to draw some links between this case and Hobby Lobby. That of course involved a federal law whereas this is a city ordinance, and that case was decided on the grounds of the federal RFRA, where the religious exemption is what protects the Hitching Post here. (That said, Idaho has an RFRA, and virtually everyone is in agreement here that forcing the ministers themselves to officiate the ceremony would violate it.)

But at the same time, there were a few things in that decision (and the precedent discussed in the decision) that are instructive.

The first is that Hobby Lobby held that a “closely held” corporation could have religious beliefs, in the sense that it was the direct expression of a very small-knit group of owners. While a publicly-traded corporation wouldn’t have the same protection, a corporation held by a small religious family is entitled to the same protections under RFRA that the owners themselves would be, because the corporation is not truly separable from them as owners.

The second is that under previous RFRA cases, generally any sincerely-held religious belief is taken at face value. The Court isn’t in the business of deciding what religious beliefs are “valid” and what religious beliefs aren’t. Thus, as long as the actions of the Hitching Post are consistent as a religious corporation, forcing them to offer services to same-sex engaged couples violates their religious freedom. Thus, from the Boise article again:

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.”

So while some of the red-meat Conservatives were hoping that this would be the wedge that destroys gay marriage, I think everyone’s out of the water.

And to the Knapps, while I profoundly disagree with your belief, and sincerely hope that you come to my side of the aisle on this one, I am glad that you won’t be going to prison or subject to fines. As a libertarian, I think you’re wrong, but as you haven’t taken anyone’s rights away by failing to offer them services, I’m not in the camp that wants to throw you in a cage for it.

H/T: Reason

Hey FCKH8, I Have a Few ‘F-Bombs’ of My Own!

If you thought modern progressive feminists couldn’t be any more childish, you haven’t seen FCKH8’s latest viral video entitled: “F-Bombs for Feminism: Potty-Mouthed Princesses Use Bad Word for Good Cause.”

In the video (below), girls aged six to thirteen repeat progressive feminist bromides and talking points along with some F-bombs (as advertised) in an attempt to get this message to go viral (mission accomplished). As expected, the response by many is to be offended by having these ‘princesses’ use such foul language for any reason.

Personally, I think the whole thing is awful. I don’t like it when children are used for any cause foisted on children by adults, regardless of how noble the cause might be. It even turns my stomach a little when I see politicians use their own children in their campaign ads. It’s even more tacky to hear children speak about such things they most likely have no clue about. My daughter is pretty intelligent and the same age as some of these girls but I’m fairly sure she doesn’t even think about the ‘equal pay’ or ‘rape culture.’ Why should she? She’s nine years-old for crying out loud!*

So here’s the full uncensored version. If this is too much for your ears to handle, go here for the censored version.

Now, wasn’t that just precious!

More important than the shock value of elementary shool girls cursing like sailors…are the things these girls saying true? For the most part, no, these are the same old progressive feminist myths repackaged yet again. I’ve already dealt with the ‘equal pay for equal work’ nonsense here and here. You can also read this article 5 Feminist Myths that Will Not Die. I’ll let Julie Borowski take care of the rest as only Julie Borowski can – dropping her own F-bombs (Fact bombs, I should say) without actually cursing.

I have a few other F-bombs about gender disparities progressive feminists almost never bring up (and I’ll do so without exploiting any elementary age children to make my points):

A young man is required by law to sign up for Selective Service by his 18th birthday. In the event Congress decides to reinstate the draft, men exclusively are conscripted to risk life or limb for ‘his country.’ Also, of those who have died in all the U.S. wars (declared and undeclared) since the American Revolution, 99.99% were men. When men’s rights activists say that society has long decided that men are the ‘disposable gender’ this is one example of what they are talking about.

When young girls are circumcised we call it ‘genital mutilation’ and we are rightly scandalized by this barbaric practice. When baby boys have their genitals mutilated, we call it circumcision because either the boy should ‘look like his father’ or because some women prefer their partner to be circumcised. So much for ‘my body, my choice.’ And imagine the outrage if even one man said that because he preferred the look of a woman’s vagina without a clitorous, baby girls should have it removed?

When it comes to parenting and divorce, mothers get custody of the children roughly 84% of the time.

Let’s call this the gender ‘crime/time’ gap. For Similar crimes under similar circumstances, on average women serve 18.51 months vs. 51.52 months for men.

Since 1976, 15 women (2.9% of the executions) have been executed even though women are responsible for 10% of murders. While I am unapologetically opposed to the death penalty, as long as this barbaric practice is part of the system, this punishment should be an equal opportunity punishment without regard to sex, race, religion, economic or political status, or creed.

At least 3 states (California, Tennessee, and Kansas) require men to pay child support to his statutory rapist.

I could go on but I think I have made my point. There is inequality between the genders and both have their challenges. Personally, I would like to look at the individual rather than who is on ‘team penis’ or ‘team vagina.’ But first, we need to elevate the debate above the elementary school playground.

*This isn’t to suggest she isn’t already very opinionated or doesn’t care about important issues. That’s right, my daughter already has an issue she cares deeply about. Her issue: the alarming decline of the ‘big cat’ populations. According to National Geographic, there are as few as 3,000 tigers, 7,500 snow leopards, 10,000 cheetahs, and 30,000 lions left in the wild. I had no idea about this until my daughter started writing out a script she wanted to read over the intercom at her elementary school to collect money to help ‘save the big cats.’ I suggested that she should ask for donations to the local big cat sanctuary for her birthday instead of presents. Would you believe she was actually thrilled with this idea and followed through? I couldn’t be more proud of her. If she wanted to make a viral video about saving the big cats, I might make an exception to my ‘no kids’ rule because this is an issue that she actually cares about.

That Idaho Gay Marriage Lawsuit? It Just Got Murky.

On Monday, I posted about the Idaho pastors who filed a lawsuit as Couer d’Alene’s anti-discrimination ordinance threatened them with large fines and possible jail time for a refusal to perform same-sex weddings at their chapel, The Hitching Post.

As background, I posted excerpts from the Hitching Post’s lawsuit regarding their employee policy:

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.
..snip..
• 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.

And my analysis, with a bit of added emphasis which will soon be clear:

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’s the history of the Hitching Post? Well, that’s where it gets murky. Walter Olson of Overlawyered tipped me off on this one.

You see, the lawsuit pointed out all the ways in which the Hitching Post was a deeply religious business, using their ceremony as ministry to bring couples to the Lord.

Only, the Operating Agreement was signed on October 6, 2014. It was submitted as an exhibit to the lawsuit here (scroll down to page 91). Now, it’s one thing to find a document with a date on it… After all, for all we know, the previous Operating Agreement might have been substantially the same as this one.

But Google Cache doesn’t lie. Jeremy Hooper from Good As You points out that as recently as Oct 9, the Hitching Post web site said that they offer marriages of both the religious and civil variety, and even of ceremonies of other faiths. (Screen shots available at that post).

Some “ministry”.

Now, I still don’t doubt that the Knapps have sincere religious beliefs against gay marriage. But it certainly seems that the Hitching Post, as a legal entity, just seems to have found God recently.

And it seems to me that the ADF is manufacturing a victim of the Couer d’Alene ordinance.

I’m finding my sympathy level for all parties involved is beginning to wane.

What American Christians Can Learn From A Muslim Woman Calling Out Her Own Community

There’s a Facebook post that has gone viral of a Georgia woman, who is Muslim, essentially blasting her fellow Muslims for demanding a special increase in food stamp benefits to offset the higher cost of halal food. One of this young lady’s followers screen capped the image, drew a line through her name and eyes to protect her privacy and posted it in Imgur.

Here it is:

L8yrtlK

I know the young lady who wrote this post. She’s a Bosnian immigrant who came to America with her family to escape the Bosnian Civil War of the 1990s. She grew up in the U.S. and became a political activist who lives outside of Atlanta. I have the privilege of knowing her and I am proud to call her a friend.

Obviously I with the post, however it got me to thinking, are American Christians also asking the state for special treatment? Unfortunately, the answer is yes and it is just as wrong as when American Muslims ask the state for special treatment.

All members of religious groups (and those who don’t belong to or believe in any religion for that matter) are entitled to is to practice their religious beliefs in peace, as long as they do not harm others. This applies whether your religion is the majority religion in the country or has very few adherents.

There are many American Christians who want the government to fight poverty and support increased welfare spending to do it. Other American Christians want the government to enforce their definition of marriage and base the laws upon their version of morality. This manifests itself in everything from blue laws to abstinence only sex education.

The worst example of this is Mike Huckabee or as we like to call him around here, “Tax Hike Mike.” Tax Hike Mike believes that God wants him to do everything from support Common Core, to fight global warming, to oppose same sex marriage. Essentially, Tax Hike Mike wants special, religious based privileges for himself and his followers above and beyond the protection of the freedom of religion.

Christians are called to fight poverty by giving to the poor, not to have Caesar redistribute the wealth of your neighbors to fight poverty. Christians are called to demonstrate their faith by living by example, not to have Caesar pass laws to mandate how their neighbors live. Christ instructed us to fufill the Great Commission by bringing the Gospels to the four corners of the world, not give that duty to Caesar. American Christians, on both the right and the left, need to stop outsourcing their own duties as Christians to the government.

 

The day may come that Christianity will not be the majority religion in the United States. It wouldn’t be unparalleled in world history for a nation to change its religious beliefs over a generation or so. One day, Christians even in America may find themselves at the mercy of a government determined to promote its own views that maybe contradictory to Christianity. It’s an experience many Christians around the world already experience daily.

If we as Christians want to be free to practice our beliefs in peace, we must acknowledge the right of all faiths in this country to practice their own faith. We cannot complain about Muslim special privileges if we ourselves are using the state to secure special privileges.

I believe that freedom and virtue go hand in hand and reinforce each other. Sometimes, we Christians need to be mindful of the “freedom” part. After all salvation itself is a gift from God through his son Jesus that must be freely accepted.

 

 

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

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.

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