Commentary

Coeur d’ Alene, Idaho in ‘Damage Control Mode’ Over Sexual Orientation Nondiscrimination Ordinance

By Jeremy Tedesco | November 3, 2014 | 11:30am EST

Unless you live under a rock, you know that The Hitching Post recently sued the city of Coeur d’Alene, Idaho, after officials threatened its owners, ordained ministers Don and Lynn Knapp, with jail time and fines.  What prompted this threat?  The Knapps’ position that they would decline to perform a same-sex wedding ceremony at their wedding business, which city officials said would violate a local sexual orientation nondiscrimination ordinance.

After the suit was filed, the city confirmed in a letter written to the Knapps’ attorneys that the Knapps did indeed risk violating the ordinance if they declined a same-sex wedding ceremony request because they are a for-profit business.  Yet, sadly, those same officials are now, with full cover provided by the ACLU, attempting to discredit the Knapps and their lawsuit in the media.  Specifically, city officials apparently told Huffington Post that the Knapps formed a religious corporation before the lawsuit was filed (as a matter of fact, all they did was change from an S-corp to a LLC – both for-profit entities), that The Hitching Post is therefore exempt from the ordinance, and that the case never should have been filed.  The ACLU is singing the same tune.

The problem with this line of defense is that before and after the Knapps filed their lawsuit, the city repeatedly stated that for-profit/non-profit was the operative distinction in applying the ordinance’s religious exemption, i.e., for-profit entities, whether religious or not, were subject to the ordinance, non-profit religious entities were not.

In fact, in its letter to the Knapps’ attorneys after the suit was filed, the city made this very distinction.  The city explained that “If [the Knapps] are operating as a legitimate not-for-profit religious corporation then they are exempt from the ordinance like any other church or religious association. On the other hand, if [the Knapps] 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.”

Crucially, the city knew the Knapps had formed a for-profit LLC when it sent the above letter to the Knapps’ attorneys.  Indeed, this fact was spelled out in detail in the lawsuit that had been served on the city a few days before.  And one look at the Knapps’ recent filing with the Idaho Secretary of State shows that they formed a for-profit LLC, not a non-profit religious corporation.  The Knapps entered into a separate operating agreement in which they explained the religious nature of The Hitching Post and used the term religious corporation as a short-hand to reflect its religious purpose, but this does not change the fact that it is a for-profit LLC.  And even after the lawsuit was filed, the city still took the position that because The Hitching Post is a for-profit business the Knapps would be in violation of the ordinance if they declined to perform a same-sex wedding ceremony.

The ACLU’s distortions are amusing.  Its well-established position is that for-profit businesses that offer services for sale, even those that are expressive in nature and thus protected by the First Amendment, must comply with public accommodations laws that bar sexual orientation discrimination.  This is so, the ACLU says, even if compliance violates the business owners’ religious beliefs.  The ACLU said precisely this on a recent national telephone conference call about The Hitching Post.  Its representatives stated that “businesses that are open to the public should be open to everyone on the same terms, including customers who are gay and transgender,” and that “nobody should be turned away from a business . . . because of . . . whom they love.”

The situation in Coeur d’Alene fits the ACLU’s position perfectly.  The Hitching Post is a for-profit business that offers its services to the public.  In addition, compliance with the local ordinance would violate its owners’ religious beliefs.  But so that it does not have to take the position that ministers should be jailed or fined for refusing to perform a same-sex wedding ceremony, the ACLU is simply misrepresenting that The Hitching Post recently “restructured themselves...to become a religious organization.”  No, it became a for-profit LLC.

But make no mistake, if the ACLU believed the country was culturally ready to accept the idea that ministers who run a business abandon their religious beliefs, it would not be making such incoherent distinctions and would instead be pursuing the case full speed ahead.  In this author’s opinion, it is just a matter of time before the ACLU will be making such arguments.

The city’s distortions are more troubling than amusing.  Once again, the city repeatedly told the Knapps – both before and after the lawsuit was filed – that because they are a for-profit business they would violate the ordinance if they declined to perform a same-sex wedding ceremony.  But now the city is claiming that The Hitching Post is exempt because it is a religious organization regardless of whether it is a for-profit or non-profit.  Obviously, the city has changed its position because of the Knapps’ lawsuit and public outcry.  Yet while telling the Knapps’ attorneys that it is seriously considering amending its ordinance so it is clear that religiously-run for-profit businesses are exempt, the city is publicly discrediting the Knapps by playing fast and loose with the facts.

Unfortunately, media outlets like The Huffington Post are all too willing to ignore the plain facts of the situation and participate in the unwarranted public flogging of the Knapps.

Happily, other media outlets are not so willingly duped.  The Coeur d’Alene press, for example, observed that the “city's determination that the Hitching Post is exempt because it is a religious corporation is a departure from the initial stance the city attorney's office took on the matter.”  The CDA press noted that the city’s initial letter to the Knapps’ attorneys plainly took the position that “[b]ecause the wedding chapel is set up as a for-profit business, a registered limited liability company, . . . the city would not exempt the Hitching Post from the ordinance.”

The distortions about The Hitching Post are disingenuous and disturbing.  They are also easily dispensed with after even a cursory review of the facts.  Let’s hope the facts, rather than self-serving spin, wins out in the public debate.

But even more, let’s hope the city’s ordinance is amended so that moving forward for-profit business owners’ First Amendment rights are protected, rather than trampled, in Coeur d’Alene.

Jeremy Tedesco is senior legal counsel with Alliance Defending Freedom. Tedesco represents The Hitching Post in the federal suit filed by two pastors Oct. 17.

MRC Store