One interesting question is whether situations like that in Coeur d'Alene -- even assuming they are not adequately addressed by constitutional protections for freedom of association and freedom of religion -- are best addressed statutorily through (1) the definition of "places of public accommodation" or (2) religious exemptions from antidiscrimination laws.
With respect to option #1, although statutory protections have long since supplanted the common law as the primary vehicle for protection against discrimination in places of public accommodation, it might be helpful to consider the scope of the common law rule. Even under the broader of the two leading understandings of the rule -- that it is triggered when a business serves the public generally, regardless of the type of business involved -- the rule would not apply to ministers who provide for-profit wedding services unless those ministers serve the public generally. So, the Las Vegas Elvis Chapel chaplain that generally takes all comers may be covered, but a minister whose wedding business is inherently selective would not necessarily be covered. It could be viewed as an analog to, or a perhaps subset of, the "public accommodation"/"private club" distinction. The law has long distinguished between public restaurants, which are covered, and selective private clubs that may nonetheless charge members for food and drink, which are not covered. It may be the case that some current statutes and ordinances are written more broadly than even the broad understanding of the common law -- and thus cover businesses even if they don't hold themselves out to the public generally -- but that still leaves the question of whether the better solution is a more careful definition of "public accommodation" or separate exemptions. Of course, the serving-the-public-generally/serving-select-individuals distinction will not be sufficient if either (a) one feels that presiding over a wedding is a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider the Elvis chaplain who does not want to perform interracial marriages), or (b) one feels that presiding over a wedding *as a religious minister *is such a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider if two members of the Restored Church of God in Ohio were to operate a business akin to the "Hitching Post" business in Coeur d'Alene, marry over 35,000 couples like the Hitching Post ministers, but refuse to perform interracial marriages pursuant to their longstanding and sincere religious belief that God intended the races not to inter-marry). - Jim On Fri, Feb 13, 2015 at 2:50 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Any thoughts on the Coeur d’Alene, Idaho incident in which > the City Attorney suggested that a wedding chapel run by two ministers > would have to allow same-sex marriages, given a Coeur d’Alene public > accommodations ordinance that banned sexual orientation discrimination? > See > http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/ > . The same rationale might well apply to a minister who gets paid for > officiating just as a side business, even without having a chapel of his > own. > > > > The city did apparently change its stance, in response to the public > outcry, > http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/. > But perhaps the Oklahoma Legislature wants to prevent such local decisions > from being made, rather than leaving protection against such decision to > public pressure or court decision. > > > > As to predictions, I wouldn’t have predicted in 1996, when the Defense of > Marriage Act was passed, that in 2015 the Court would be quite likely to > recognize a constitutional right to same-sex marriage. It might likewise > be hard to tell for certain what some Oklahoma cities might do in the > coming two decades. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Friday, February 13, 2015 2:39 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Oklahoma bill would protect clergy who won't perform gay > marriages > > > > I think the odds are higher that the electorate of Oklahoma overwhelmingly > votes for Elizabeth Warren for President than that both houses of the > Oklahoma legislature would approve, and the Oklahoma governor would sign, a > bill that requires all clergy in Oklahoma to perform religious weddings for > gay and lesbian couples. And the odds are about the same that a court in > Oklahoma would construe its public accommodations law --which probably > doesn't even protect against sexual orientation discrimination in the first > place (I haven't checked)--to require clergy to perform such weddings. > > > > On Fri, Feb 13, 2015 at 4:47 PM, Brad Pardee <bp51...@windstream.net> > wrote: > > I thought that having nearly ten percent of the legislature oppose it > indicates that that the pastors' concerns weren't just products of their > imagination, and what nearly ten percent now may grow larger in time as > activists and lobbyists play their role in the political process. What > I've seen of our legislature here in Nebraska is that, when senators' votes > are changed, it seems far more likely that senators who voted with the > majority will change rather than one of the minority, which is why I felt > it was a serious question. > > > > Considering that nearly the entire article as about this piece of > legislation and there were no gay rights supporters stating that this > proposal was fine and that it was other proposals they would challenge in > court, it could be that it is sloppy journalism (not unheared of on Yahoo) > or it could be that the gay right supporters included this in the proposals > they would challenge. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Friday, February 13, 2015 3:22 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Oklahoma bill would protect clergy who won't perform gay > marriages > > > > What does it "say" that seven out of 95 legislators voted against? That > this is not a serious question. > > > > BTW, the story does not say that "supporters of gay rights said they'll > challenge the law in the courts if it is passed, indicating that they > believe pastors can be forced to perform same sex weddings that violate a > church's teaching." > > > > What it says is that there are "several proposals" "before the > Republican-dominated Oklahoma Legislature intended to protect the interests > of people who object to the lifting of the gay marriage ban," and that "gay > rights supporters have said they would challenge the proposed measures in > court if they become law." It does not cite any gay rights supporters as > saying they'll sue to require ministers to perform religious weddings for > same-sex couples. > > > > On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee <bp51...@windstream.net> > wrote: > > > http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html > > > > From what I have learned here in my time on this list, I wouldn't think > that this law would be necessary because existing law would seem to prevent > the government from mandating when churches are required to invoke God's > blessing and dictating what churches can include in their moral teaching. > However, it says something that a) the pastors felt the protection was > required after the ban on same sex marriage was overturned, b) seven > legislators opposed providing that protection in the law, and c) supporters > of gay rights said they'll challenge the law in the courts if it is passed, > indicating that they believe pastors can be forced to perform same sex > weddings that violate a church's teaching. > > > > Brad Pardee > > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
