The Absurd Reason Why an Idaho City Claims Pastors Must Perform Same-Sex Marriage Ceremonies

By David French, CP Guest Contributor Friday, October 24, 2014

David French, a Harvard educated attorney, is Senior Counsel at the American Center of Law and Justice. He lives in Middle Tennessee with his wife, best-selling author Nancy French and their children and pets. | Not available

What is this absurd reason? They're running a business. If pastors are operating a "for-profit" wedding chapel, then they must officiate at gay weddings regardless of their religious objections.

Thus, to the city attorney of Coeur d'Alene, these pastors have fewer religious-liberty rights than they would if they were performing the same services (even including receiving a fee for those services) in a not-for-profit corporate form.

There is a persistent belief amongst leftists and statists of all stripes that the for-profit corporate form somehow strips that corporation and its leaders of any real control over their speech activities. We saw this in the Hobby Lobby case, as the Left was practically beside itself at the idea that a closely-held for-profit company had even comparable rights to a not-for-profit. To them, the desire to make money should leave you at the mercy of the state. As I stated in the aftermath of the Hobby Lobby decision:

For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties, including free speech, free exercise of religion, and virtually the entire panoply of property rights. In effect, your business is not "your" business at all, but instead all aspects of its operations exist at the whim of the state, and if the state wants to draft you into its child-killing abortion crusade — or wants to muzzle you during political campaigns – then you best salute and fall in line.

But this distinction is curious on its own terms. At the same time that some on the left howl that for-profit businesses must shed their values to enter the marketplace, many of these same people claim that not-for-profits must live with profound limits on their free speech precisely because they're not-for-profit. In fact, the infamous Johnson Amendment places restrictions on pastors and other church leaders that don't apply to, say, Apple's CEO. Not-for-profit status is conditioned on the agreement to refrain from certain kinds of political speech, which is of course core speech protected by the First Amendment.

So, just so we're keeping score: For-profit companies should enjoy less liberty because they're for-profit, and not-for-profit companies should enjoy less liberty because they're not-for-profit. The liberties they should lose are subtly different (for now), but the refrain is still the same: less liberty and more state power.

Regarding the legal merits of Coeur d'Alene's claims, I agree with Eugene Volokh:

The First Amendment protects the right to speak the words in a wedding ceremony — words that have deep meaning to many officiants as well as to the parties — and the right to refrain from speaking the words. A system which secures the right to spread religious and moral messages inherent in the wedding vows must also guarantee the right not to convey those messages (including the message of approval of the wedding inherent in the act of officiating at it) in contexts that the officiant thinks unholy and immoral rather than sacred and right.

He continues:

The government can't require the employees or owners of a for-profit newspaper or motivational speaker service to say the Pledge of Allegiance as a condition of staying in business, just as it can't require noncommercially minded schoolchildren to say the Pledge. The government can't require such for-profit businesses to display "Live Free or Die" on their company cars. It can't require for-profit newspapers to publish things they don't want to publish. Likewise, it can't require for-profit officiants of verbal ceremonies (especially religious ceremonies, but secular ones as well) to say things they choose not to say.

All this is true (at least so far) as a matter of constitutional law, but let me close with what I think is the more important cultural and political point. After all, constitutional liberties are notoriously vulnerable to nonlegal cultural trends. We're facing an old problem, where advocates of state power constantly reason backwards to find justifications for regulatory expansion and coercion. The outcome is far more important than the principle.

So, when necessary, they condemn profit-making as somehow a less pure means of approaching the public and then later — under different circumstances — consign not-for-profits to second-class status because of their alleged dependence on the state tax subsidies. Defenders of liberty must be able to penetrate the pejorative corporate rhetoric to explain the core principles. The state is giving itself the power to both censor speech it dislikes and even compel speech it favors, and both actions are fundamentally at odds with any meaningful conception of individual freedom.

Unless we can advance these larger principles, the outcome will continue to be grim: heads, the state wins. Tails, liberty loses.

This column originally appeared on NationalReviewOnline.

David French is Senior Counsel and Director of Digital Advocacy at the American Center for Law and Justice.