Sunday, October 19, 2014

No, it's NOT a First Amendment violation


Several readers have contacted me, indignant over a decision by Coeur d'Alene officials that a Christian-oriented wedding chapel must offer its services to gay couples.  They believe this violates the First Amendment to the US Constitution, specifically the 'separation of church and state' doctrine.

Unfortunately, it's not quite that simple.

  1. The wedding chapel is precisely that:  a for-profit venue for weddings.  Despite its explicitly Christian orientation, it's not a church and has no congregation.  That makes it a business in the eyes of the law, as far as I'm aware;  and, also as far as I'm aware, it's registered and pays taxes as a regular business rather than a non-profit religious corporation.
  2. The lawsuit filed on behalf of the chapel claims that the state can't force ordained ministers to act in violation of their faith or beliefs.  I agree - when they're acting in their capacity as ordained ministers.  If they're operating a for-profit wedding chapel as a business concern, explicitly offering its services to the general public, they're doing so as businesspeople rather than ministers of religion.  Throughout the USA laws prevent any business from discriminating against customers and employees on the grounds of race, sex, religious orientation, etc.  Religious establishments - churches, synagogues, mosques, temples, etc. - have certain exemptions from such ordinances, but this isn't a religious establishment.

I have real sympathy for the conundrum facing the proprietors of the wedding chapel, but they've just run headlong into the problems faced by any business offering services to the general public.  If you want to claim religious exemption from the law, you need to restrict your services to members of a particular faith or a particular congregation, all of whom understand and voluntarily accept your doctrines.  If you offer your services on a cash basis to all comers, I'm afraid the situation has changed.  It's precisely the same as the Colorado bakery that refused to make a wedding cake for a gay couple.  The owners' position was perfectly in order for a religious establishment, but not for a civil one.  They couldn't see the difference, but a judge could - and did.

Unfortunately, in the USA too many churches and religious individuals have assumed for decades - centuries! - that since public morality and our laws generally conformed to the dictates of their religious beliefs, they could impose the same restrictions on their customers in the business world.  That was never legally valid - merely a happy coincidence (for them, at any rate).  The world has changed.  Unfortunately for people of faith, that means we have to adapt ourselves to the society in which we live.  If certain religious principles are so important to us that we can't betray them at any cost, then we need to withdraw from commercial activities where those principles will bring us into conflict with the law.  If we try to impose our principles on others who don't share our beliefs, we have no recourse when others of different faiths insist we offer them the same accommodation - for example, a dhabihah (ritual slaughter) facility that may not meet regulatory standards and norms, or loudspeakers broadcasting a call to prayer (in competition with our church bells) . . . or even a gay pride parade rolling down the (public) street outside our churches.

We live in a post-Christian society.  As we used to say in Africa, "There's no use farting against thunder".  Our task is not to throw up our hands in despair and abandon our faith:  rather we must find ways in which to remain faithful to our principles whilst respecting those of others who don't agree with us.  We may not dictate to them, just as they may not dictate to us.  It's going to be a long and difficult process for both sides to work out an accommodation.

Part of that accommodation for Christians will have to include acknowledging Jesus' words:  "Render to Caesar the things that are Caesar’s, and to God the things that are God’s".  In the Coeur d'Alene case, the modern equivalent of Caesar makes the business laws.

Peter

26 comments:

Sarthurk said...

Bull hockey. I retain the right to refuse services (sic) to anyone for NO reason. In other words, if I choose no reason to do so, it is within my legal right to do so. Giving the reason that they stated as their religious beliefs, was stupid. It's like saying you are going to have someone prosecuted for trespassing because they're gay. NO! You are doing it because they are trespassing! Geez! Get a grip.

Peter said...

@Sarthurk: You're right in theory - that's the meaning of the old "Right Of Admission Reserved" business clause. Unfortunately, that clause was so abused because of racial prejudice (among others) that the courts have ruled repeatedly that it can't be used to discriminate against others. If you apply it even-handedly across the board in general terms (i.e. "No shirt, no shoes, no service) that's one thing. Going beyond that is legally tricky nowadays.

Tewshooz said...

OK, across the board....all couples wanting to be married there one must have a penis. No exceptions.

Anonymous said...

Coincidentally, the "render to Caesar" passage was part of the Gospel reading today at Mass.

Jess said...

Liberty holds a responsibility many don't understand. Not only are you allowed freedom, but those that don't agree with your contentions are, also, allowed freedom from you.

That's too tough for many. Being who you are is not necessarily an ideal existence to others. Demanding they accept you is criminal; if the rules of law are used to force acceptance.

tweell said...

And Caesar has over-reached (quite a long time now) in the matter of marriage. Marriage is a religious sacrament, and government should NOT be involved.

What do you do when Caesar takes God's things?

Peter said...

@Tweell: I agree 100% that government should not be involved in marriage. I've said as much on this blog:

http://bayourenaissanceman.blogspot.com/2010/08/marriage-law-and-complications.html

http://bayourenaissanceman.blogspot.com/2011/02/marko-hits-one-out-of-park.html

http://bayourenaissanceman.blogspot.com/2012/05/fuss-over-gay-marriage.html

http://bayourenaissanceman.blogspot.com/2012/06/when-state-dictates-to-religions-and.html

As for "Caesar taking God's things", that's always been a problem and will continue to be - just as it's a problem when those proclaiming themselves to be God's servants try to take Caesar's things.

B said...

That may be what the law says.

I state and believe that the law is incorrect.

I should be allowed to refuse service to anyone I please. No consequences under the law. If I choose to not serve unaccompanied females, that should be my right. Same with black people, South Africans, Muslims, etc. (I don't, in fact, discriminate.... I serve everyone as well as I am able, but that is because I am greedy and want their business...But I should be able to, if I choose)

Privately owned businesses should be able to discriminate as much as they wish. against anyone they wish. They should NOT be protected against any negative consequences of such behavior, mind you, but they should be allowed, or rather, not be regulated.

Public services and offices should NOT be able to discriminate. But that is a different animal than privately owned businesses. You might could stretch that to businesses which have government contracts. But again, that would be the choice of the private owners as to whether government business is worth the restrictions.

~Katherine~ said...

Here's the problem I see with this line of thinking: their business is being forced to support an action which the owners believe to be reprehensible.

Generally, the consensus of such business owners is that they are perfectly happy to have a homosexual couple as customers for anything except a wedding, and hold no animosity towards them. If Bill and Steve want Baker Fred to bake them a cake to celebrate Bill's mom's birthday/Steve's promotion at work/Bill getting his MBA, then over and over again, Baker Fred has generally expressed willingness to bake cakes for those reasons. It's participating in a celebration which he believes to be inherently wrong which he objects to.

In your (excellent) book on prisons, you dedicated a chapter to the importance of a person's acceptance of the existence of objective truth and reality, indicating that without this acceptance, he will not be able to make much spiritual or psychological progress as a functioning member of society. If one believes objectively that homosexual behavior is wrong, then he must not, in good conscience, support it. To do otherwise on the basis that the law permits homosexual marriage so he must not only accept its existence but openly support it is intellectually and spiritually dishonest.

I imagine that you and I agree that there is a higher law than Caesar's, and that Caesar's laws are not always in accord with that higher law. That higher law, for example, would hold accountable for their actions law enforcement officers who toss flashbang grenades into babies' beds, and wouldn't give two (insert expletives of your choice here) about whether or not they were within Caesar's laws in doing so.

Let's say that one of those officers walked into Baker Fred's bakery and asked him to make a cake for a party celebrating the fact that the lot of them got off scott-free after mutilating a baby.

Legally, those cops are innocent of wrongdoing. As you and I would both agree, their actions would be viewed rather differently through the lens of that higher law. Should Baker Fred be put out of business or face jail time for refusing to make that cake?

As a Christian, he is obligated to care about the souls of those cops, even while he finds their actions reprehensible. Indeed, if he sees them needing help in some physical or spiritual way, he is obligated to be that Good Samaritan that we were told about so long ago. However, caring about someone as a human being is entirely different from actively supporting their wrong actions.

(Do please consider the analogy for its face value, and no deeper. Of COURSE the average GLBTQ person is no more likely to chuck a flashbang grenade into a baby's bed than the average heterosexual. I use the analogy to emphasize the Caesar-vs-God argument, nothing more.)

Peter said...

@Katherine: Generally I agree with you, except that I submit you're missing the most important point. If you engage in business, you're governed by the laws controlling business - NOT religious belief or doctrine. Those laws CANNOT aid or abet the perspective of any religion, faith or sect. They have to apply across the board to all businesses.

That's why the Coeur d'Alene issue isn't a First Amendment matter. The owners of the wedding chapel have set it up specifically and explicitly as a profit-making business rather than a religious organization. The former is, by law, open to all comers. The latter can have restrictions built in w.r.t. beliefs, morally acceptable norms and actions, etc. By choosing the former rather than the latter model, the owners have made themselves subject to business law rather than the considerably less inclusive laws governing religious institutions. It was their choice, and now they have to live with the consequences.

I agree with you that "there is a higher law than Caesar's". However, in this case, the business owners chose (through their mode of incorporation) to subject themselves to the latter. Whether they now regret it or not, that's the way it is. If they want to change that, they're going to have to terminate their secular corporate structure and reincorporate as a religious body, subject to the different requirements involved. That will solve their problem of conscience - but it will also mean that they can no longer operate in the same way, offering their services to all comers. It's their choice.

Joe in PNG said...

I think people tend to forget that Law is what it is. Law is seldom logical, and has little to do with what is moral or how things 'should be'.

Do remember that these laws were passed according to the guidelines established by the Constitution. And do remember that Law is not subject to private interpretation.

You may not like it, and it may go against what should be... but it is what it is.

PeterW said...

Such laws on "business" are effectively binding one party to a transaction, but not the other. How is this fair?

A fair law would require purchasers to purchase from businesses without regard to how they felt about the owners beliefs, politics, race, religion or the use to which he would put the profits.

That would, of course, be unconscionable.

sdharms said...

So "We reserve the right to refuse service to anyone" or "No shirt, no shoes, no service" are a thing of the past? Why don't these businesses just "be too busy" "have no openings" "price it too high" . When I was a consultant, if there was a job I didn't want, I just priced it so high they would go elsewhere. You are wrong Peter: It IS A FREEDOM ISSUE. Can they make a Dr. perform an abortion or euthanasia? Can I be forced to work for a certain company? Can a convenience store or CVS be forced to sell cigarettes? or liquor? Do I have to buy/eat broccoli? Can the mayor of Houston force pastors to say certain things and not say others? Can she force me to send my 8yr old into a public restroom to encounter a pedophile?

sdharms said...

There was a time in this country that the government thought it could not interfere in private business (Walsh Healey act)but those days are sadly gone and need to be revived. How long before we are told we cant do criminal background checks before we hire for bank tellers and kindergarten teachers? Oh yeah, that time is here also.

sdharms said...



Jess said...
= Not only are you allowed freedom, but those that don't agree with your contentions are, also, allowed freedom from you.

Demanding they accept you is criminal; if the rules of law are used to force acceptance." Amen, JEss, where are the rights of the wedding chapel owners?

Phil Kraemer said...

Peter,

It may be well to see what Volokh thinks about this. He takes a different view than you, and I think we can all agree that he has a good understanding of law:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/18/can-ministers-who-make-a-living-by-conducting-weddings-be-required-to-conduct-same-sex-weddings/

Thanks,

Douglas2 said...

In practice anti-discrimination law in the US at federal level has always had some explicit checks against some of the more obvious absurdities --
For example the Fair Housing Act Still allows people to discriminate (and advertise that they do so) on the basis of sex in limited circumstances, such as shared accommodation. If you are a female looking for a female roommate, you are not forced to consider all males equally.
Likewise in employment law there is the ministerial exception.

Peter said...

@Phil Kraemer: Volokh adopts an interesting approach. He doesn't come at the problem from the "freedom of religion" angle, but rather from a "freedom of speech" perspective, tying the latter to the use of words that violate the conscience of those forced to speak them. That's going to be interesting in a courtroom setting, to put it mildly - I don't think it's ever been ruled upon before.

Also, as I expected, the Coeur d'Alene authorities are referring to the wedding chapel as a "place of public accommodation" rather than a "place of worship" or "place of religious ministry". In other words, they're treating it like any other business, rather than as a church. That seems entirely appropriate to me if it's registered as a business rather than a church, as I said in my article. It's probably going to be the key issue in this case.

Ted said...

I was just going to leave the link to Volokh's piece in the WaPo, but see Mr. Kraemer beat me to it.

I think he drills down to the core of it, in that the government cannot compel a minister to speak words (in the ceremony) that are against his personal beliefs.

Owning a business as a front for your ministry does not trump your rights as a minister.

JohninMd.(HELP?!??) said...

Should _anything_ having to do with marriage be considered "public accommodation"? Or have we allowed the State to hijack it through licencing and tax law? If the couple in question are ordained ministers, can they perform Hindu, Jewish, or Muslim Rites? Or do the laws of Idaho consider the ceremonies they perform civil ceremonies with no religious context, as any Justice of the Peace would? I always thought a JP was a govt. official, not a businessman

JohninMd.(HELP?!??) said...

Also, in cases where people are deliberatly setting up a confrontation to force a business to do an action against it's will, why is that not grounds for harassment charges?

Peter said...

To all of you objecting to the owners of the wedding chapel being "forced" to do something against their religious principles: you don't get it. This isn't about their principles. It's about the nature of their business - a nature they themselves selected.

They didn't incorporate as a church or religious organization. They incorporated as a business. Therefore, they're subject to all the laws regulating a business - including those against discrimination on the grounds of age, creed, color, sex, sexual orientation, etc. That's a fact of life for any business. They're in the same situation as (for example) a wedding chapel in Las Vegas, which may have more to do with Elvis Presley than with religion. It's not a church - it's a business.

If the couple in Coeur d'Alene wanted to emphasize their religious faith, and operate within the restrictions it imposes on their conscience, they should have set up a religious rather than a secular institution; a church rather than a for-profit wedding venue. They chose not to do that. There are consequences to that choice. It's that simple.

Douglas2 said...

The hobby-lobby case proved that "closely held" businesses did have religious freedom rights WRT federal law under the RFRA, and Idaho has a similar stature modeled on the federal one:
"TITLE 73
GENERAL CODE PROVISIONS
CHAPTER 4
FREE EXERCISE OF RELIGION PROTECTED
73-402. FREE EXERCISE OF RELIGION PROTECTED. (1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.
(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
(3) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:
(a) Essential to further a compelling governmental interest;
(b) The least restrictive means of furthering that compelling governmental interest.
(4) A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this chapter against a government shall recover attorney's fees and costs.
(5) In this section, the term "substantially burden" is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimis infractions."

Interetingly, I note that the Hitching Post has only been an LLC since September 14. I wonder if Alliance has set this up intentionally as a test case.

Phil Kraemer said...

" Volokh adopts an interesting approach. He doesn't come at the problem from the "freedom of religion" angle, but rather from a "freedom of speech" perspective, tying the latter to the use of words that violate the conscience of those forced to speak them. That's going to be interesting in a courtroom setting, to put it mildly - I don't think it's ever been ruled upon before."

Peter - I am not a lawyer, but I believe that there is a relatively strong set of prior court decisions that support the position that compelling speech is unconstitutional under the First Amendment. Fundamentally, that is what this case would be about were it to be litigated; not about the establishment clause, but about freedom of speech. Thus, this would be a violation under the First Amendment.

Peter said...

@Phil Kraemer: Yes, but to the best of my knowledge this is going to test freedom of speech in an "exercise of religion" context, and specifically from a ministerial/pastoral point of view. That's been applied to things like political content in sermons, etc., but not (AFAIK) to the administration of rituals, sacraments, etc. That's why I say this is going to be very interesting, if it comes to that.

Carl Stevenson said...

In my opinion, forcing anyone to provide labor or services without their consent and willing participation amounts to slavery.