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'Religious Freedom' strikes back against marriage equality gains

As a growing number of states legalize same-sex nuptials, members of the religious right have doubled down on their resistance.
Protesters participate in a \"Stand Up for Religious Freedom\" rally on March 23, 2012 in Washington, DC. (Photo by Win McNamee/Getty)
Protesters participate in a \"Stand Up for Religious Freedom\" rally on March 23, 2012 in Washington, DC. (Photo by Win McNamee/Getty)

In the last month, marriage equality has taken over more than half the nation, bringing indescribable happiness and relief to thousands of same-sex couples who had for decades been denied the basic dignity and privilege of being able to wed. But not everyone is jumping for joy.

As a growing number of states legalize same-sex nuptials, members of the religious right have doubled down on their resistance, taking aim at non-discrimination ordinances in court, and trumpeting the argument that Americans’ First Amendment rights are under attack. In three states -- Idaho, Nevada, and North Carolina -- where recent actions by the U.S Supreme Court and the 9th Circuit Court of Appeals tore down constitutional barriers to same-sex nuptials, a small number of government officials, businesses, and lawmakers have declared their intention to fight against marriage equality in the name of religious freedom.

The case that has arguably gained the most notoriety so far, thanks in large part to inflammatory right wing media reports, comes out of Coeur d’Alene, Idaho, where a wedding chapel has sued the city on the grounds that its non-discrimination ordinance would force the owners to marry same-sex couples, or run the risk fines and jail time.

“Our goal is to ensure that [the ordinance] can’t be enforced against people like our clients, who run their businesses according to their religious beliefs,” said Jeremy Tedesco of the Alliance Defending Freedom (ADF), which is representing the Hitching Post Chapel, to msnbc.

“But it’s not just our clients,” Tedesco continued. “This ordinance puts a lot of people in the crosshairs -- photographers, florists … What’s going on is the government is saying, ‘Choose between your faith or your livelihood.’”

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If Tedesco’s argument sounds familiar, that’s because it’s the same one that fueled more than a dozen religious freedom measures in conservative state legislatures earlier this year. Proponents argued those bills were necessary protections for religious business owners -- such as a baker who refused to make a wedding cake for a same-sex couple in Colorado, or a photographer who refused to shoot a same-sex commitment ceremony in New Mexico. But critics warned the measures would essentially become a license to discriminate against LGBT Americans.

Widespread opposition last legislative session, as seen most prominently in Arizona, managed to crush most of those religious freedom bills. But the Supreme Court’s Hobby Lobby ruling, which determined that closely held corporations wouldn’t have to cover the cost of contraception based on sincerely held religious objections, gave some supporters of the religious freedom movement a glimmer of hope.

Idaho is one of 29 states where it is perfectly legal to discriminate against gay and lesbian individuals; the state has no LGBT employment, housing, or public accommodations protections on the books. But Coeur d’Alene is one of six cities in the state that has passed a municipal ordinance barring discrimination on the basis of sexual orientation or gender identity. Any business that refuses service to a same-sex couple, for instance, could face up to $1,000 in fines and/or 180 days in jail.

Hitching Post, a chapel run by two ordained ministers, Donald and Evelyn Knapp, used to perform religious weddings for people of all faiths, as well as secular civil services. The chapel charges between $80 and $100 per wedding. Under that arrangement, Hitching Post would be in violation of Coeur d’Alene’s nondiscrimination ordinance if the Knapps turned away a same-sex couple.

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But City Attorney Mike Gridley says that earlier this month, the chapel had filed as a religious corporation, a status which exempts them from the ordinance. Additionally, as blogger Jeremy Hooper reported, the Knapps changed their website to say, “The Hitching Post specializes in small, short, intimate, and private weddings for couples who desire a traditional Christian wedding ceremony.” It used it say, “We also perform wedding ceremonies of other faiths as well as civil weddings," but that part was scrubbed.

“Given that, we would just say that Hitching Post on its face fits into the exemption in our ordinance,” said Gridley to msnbc. “At that point, I think the suit is certainly moot. I don’t think its right even [without the exemption] because we’ve never had a complaint against them. We’ve never investigated them.”

The Alliance Defending Freedom, however, has a different account. The group insists Hitching Post is a for-profit limited liability company that has never changed its status to a religious corporation, and would, therefore, be subject to escalating fines and jail time for every day the Knapps refuse to marry a same-sex couple. (Gridley also disagrees with the ADF’s interpretation of the ordinance’s penalty. In an email to msnbc, he said the law carries one fine per incident, not escalating fines per day.)

“[The city] has been saying for months that only not-for-profit organizations were exempt,” said the ADF's Tedesco. “If they’re changing their position, it’s because we filed a lawsuit and they’re under all this public pressure … Wouldn’t you, if you had threatened ministers with jail time?”

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It’s not just Coeur d’Alene where the ADF is making legal waves. In Houston, the group got involved in a lawsuit filed against the city after an official rejected a repeal referendum seeking to overturn its equal rights ordinance, known as “HERO.” That lawsuit accused City Attorney David Feldman of wrongfully concluding that the ordinance’s opponents -- mainly conservative Christian activists -- had not gathered enough valid signatures. As part of the case’s discovery phase, city attorneys subpoenaed “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by” five local pastors who were tied to the repeal referendum. The ADF then filed a motion in the District Court of Harris County to quash the subpoena “discovery requests.”

“City council members are supposed to be public servants, not ‘Big Brother’ overlords who will tolerate no dissent or challenge,” said ADF Senior Legal Counsel Erik Stanley in a press release. “In this case, they have embarked upon a witch-hunt, and we are asking the court to put a stop to it.”

Houston attorneys walked back their request, removing the word “sermons” from their subpoenas. But the ADF, as well as conservative firebrands like former presidential candidate Mike Huckabee and potential presidential candidate Sen. Rand Paul, were unimpressed.

“That’s what these subpoenas are about,” said Paul Tuesday night at a GOP event in Ohio. “They’re wanting to get the ministers’ sermons, because the ministers have been criticizing the government’s involvement in the hiring, or in the bathrooms -- I don’t know, I can’t understand why you have to have three bathrooms. Someone’s going to have to explain that to me. But it’s about the government getting involved in the affairs of the church.”

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IRS regulations limit churches’ political involvement to speaking out on issues and values. If a pastor expressly endorses or opposes a political candidate, that church could lose its tax-exempt status (although, U.S. tax authorities almost always look the other way.) Since the Houston pastors were speaking out against an issue -- in this case, the city’s non-discrimination ordinance -- their churches are not in danger of losing their tax-exempt status. But the ADF wants more.

Earlier this month, the group organized “Pulpit Freedom Sunday,” during which more than 1,500 pastors delivered sermons about political candidates in direct violation of IRS regulation. As TIME pointed out, the goal was likely to provoke the U.S. government into going after a church, so that they could potentially have another Hobby Lobby-type case that expands so-called “religious freedom.”

So far, the Obama administration hasn’t taken the bait, perhaps still trying to play it cool after the Lois Lerner scandal. But when paired with the ADF’s actions in Coeur d’Alene and Houston, “Pulpit Freedom Sunday” plainly reveals a national strategy that seeks to further blur the line between religion and politics, one which threatens to undo advancements for LGBT rights, reproductive rights, and other rights at odds with the church.

“They’re trying to use every legal maneuver humanly possible in order to take what is a losing argument on their part -- that somehow marriage equality is not, and should not happen,” said Barry Lynn, executive director at Americans United for Separation of Church and State. “This is a lost cause for the ADF and for every other right wing legal group out there. They’re trying to find ways to punish or penalize the LGBT community, and these are the kinds of lawsuits they’re getting involved in.”

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Marriage equality’s rapid expansion has also run into religious speed bumps in two other states. Some Las Vegas chapels are, like Hitching Post, refusing to marry same-sex couples. Unlike Hitching Post, however, these chapels currently offer non-religious services, which would disqualify them from claiming a religious exemption to the state’s non-discrimination law. As far as the ACLU of Nevada is aware, these chapels don’t actually offer any religious services.

In North Carolina, a Swain County judge resigned this week so that he wouldn’t have to perform weddings for same-sex couples. “[T]hat was just something I couldn’t do because of my religious beliefs,” Magistrate Judge Gilbert Breedlove said. More troubling to LGBT advocates, however, was an announcement from Senate President Pro Tempore Phil Berger saying that he would seek to pass legislation next year exempting magistrates and registrars of deeds from catering to same-sex couples if doing so “would violate their core religious beliefs.”

“State officials don’t get to pick and choose which laws they follow,” said Christopher Brook, legal director at the ACLU of North Carolina, on a press call Thursday. “They can’t turn people away just because of who they are or who they love.”

Despite those incidents, legal experts stress that a majority of the nation has welcomed the arrival of marriage equality with open arms. Those who haven’t, they say, will likely lose in court or to the jury of public opinion.

“Recently, where marriage equality has become a reality what we’ve seen is most government officials and businesses, regardless of their religious beliefs, have no problem,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project, on Thursday’s press call. “We are confident that the American public will continue to oppose these efforts to discriminate against LGBT people in the name of religion.”