Gay marriage vs. religious freedom, the latest installment

Two ordained ministers, a husband and wife, who perform marriage ceremonies but oppose gay marriage reportedly face a 180-day jail term and a $1,000 fine for each day they decline to celebrate a same-sex wedding.

The ministers operate a chapel in Coeur d’Alene, Idaho. The city has an ordinance that prohibits discrimination, including on the basis of sexual orientation, in public accommodations. Recently, the ministers turned down a gay couple’s request to perform their marriage ceremony. They now face legal jeopardy.

It’s an indictment of the gay rights movement that these sorts of dispute arise at all. Who in his right mind would want to have his marriage ceremony presided over by someone who thinks the union is sinful? A wedding is supposed to be a joyful occasion, not an opportunity to punish one’s ideological opponents.

The Jewish community faces essentially the same pseudo-civil rights issue all the time. Many rabbis won’t preside over a ceremony that weds a Jew to a non-Jew. How do Jews respond? Not through legal proceedings. They respond the same way my daughter did when she married a non-Jew — by finding a rabbi who will perform the ceremony.

It’s unfortunate that some gay couples lack the civility to behave this way. It also suggests that gay activists are insincere when they invoke the principle of “live and let live” in support of gay marriage. Too many gay activists are authoritarian, not libertarian, at heart.

Fortunately, the law provides strong support for the Idaho ministers. Eugene Volokh argues that applying Coeur d’Alene’s ordinance to the ministers would violate the Constitution:

Compelling [the ministers] 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, 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.

Professor Volokh also believes that the ministers are entitled to an exemption under the Idaho Religious Freedom Restoration Act from being required to marry gay couples.

Requiring [the ministers] to violate their beliefs (or close their business) is a substantial burden on their religious practice.

And I find it hard to see a compelling government interest in barring sexual orientation discrimination by ministers officiating in a chapel. Whatever interests there may be in equal access to jobs, to education, or even in most public accommodations, I don’t see how there would be a “compelling” government interest in preventing discrimination in the provision of ceremonies, especially ceremonies conducted by ministers in chapels.

The ministers have moved for a temporary restraining order against Coeur d’Alene to stop the city from enforcing the fine and/or jail time. What a pity that it had to come to this.

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