- The Washington Times - Tuesday, July 28, 2015

The city of Coeur d‘Alene has no plans to arrest Don and Evelyn Knapp. Certainly the Knapps don’t want to be arrested. So far everyone’s on the same page.

After that, however, the situation grows murkier. The Knapps, who perform marriage ceremonies at their Hitching Post Wedding Chapel, are suing the city because they fear being prosecuted under a 2013 ordinance forbidding discrimination based on sexual orientation.

Their fears are not entirely unfounded. Days after Idaho began performing gay marriages on Oct. 15, the Knapps declined to marry a same-sex couple. Previously, city officials had said that the Knapps, both of whom are ordained ministers, would be in violation of the law if they refused to officiate a same-sex marriage.

City attorney Mike Gridley had at first maintained that only religious nonprofit corporations were exempt under the ordinance — the Hitching Post is a for-profit business — but later changed his position, saying, upon further review, that religious for-profits were also exempt.

The Knapps “are not subject to this ordinance,” said Coeur d‘Alene spokesman Keith Erickson. “This ordinance exempts them clearly — or any religious organization.”

He stressed Mr. Gridley’s initial statements were made in response to hypothetical situations, not actual cases.

“The city really wants to get the message out: The Knapps, who own the Hitching Post, were never threatened with any fines, nor were they threatened with any jail time,” said Mr. Erickson.

If the Knapps are less than comfortable relying on the city’s assurances, however, it may be because the ordinance exempts “religious corporations,” even though the term is not defined in the Couer d’Alene ordinance or Idaho state law. For example, a “religious corporation” could be either a profitmaking or nonprofit corporations.

While the law has been “clarified” to include both for-profit and nonprofit corporations, attorneys for the Hitching Post and the city agree with each other that nothing in the language has changed. And that’s the problem, said Jeremy Tedesco, senior legal counsel with the Alliance Defending Freedom, who represents the Knapps.

“[W]hat needs to change in this case is a definition of what is a religious corporation under the [law] so that people like the Knapps, who own for-profit businesses and run them according to their religious beliefs, know what their rights are under the ordinance,” Mr. Tedesco said in video comments posted last week on the ADF’s webpage.

One reason the Knapps don’t want to get this wrong is that the penalties involved are so steep. Those who run afoul of the ordinance may be charged with a misdemeanor and subject to 180 days in jail and up to $1,000 in fines for each day that the offender refuses to comply.

What’s more, the Knapps have turned down a steady stream of same-sex couples since October, largely because the wedding chapel is located across the street from the Kootenai County Clerk’s office, which issues marriage licenses.

Mr. Tedesco cited four instances in which “the city had told our clients, both publicly and in private communications, that they would be subject to the ordinance if they declined to perform same-sex marriage ceremonies at their facility.”

“Before we filed, they said consistently that the Hitching Post was subject to the ordinance. Then, once we filed, they changed their position,” he said.

The Knapps have run the Hitching Post as a for-profit business for 25 years. In October, they reorganized as a limited-liability corporation (LLC) and stressed in the operating agreement that they would run their business according to their beliefs as Christians.

Given that Idaho does not formally recognize “religious corporations,” however, “we have no idea what made them a religious corporation or what would take them out,” said ADF attorney Matt Sharp.

In a court hearing last week, attorneys for Coeur d‘Alene argued that the case should be thrown out, pointing out that the Knapps were never fined or arrested in connection with refusing to perform gay marriages.

The Knapps “do not have standing to challenge Defendant’s ordinance because they cannot establish an injury in fact,” said the city’s motion to dismiss.

“Plaintiffs are excepted from the ordinance. Therefore, they cannot demonstrate a concrete intent to violate the law and they cannot show a genuine threat of imminent prosecution,” said the motion.

Mr. Tedesco argued that only a “credible threat” of prosecution is necessary in the case of a pre-enforcement challenge.

“It doesn’t matter if there has been a fine, if there’s been an arrest, a prosecution or any other kind of enforcement action to start with, a pre-enforcement action allows you go to court before those things happen if there’s a credible threat of enforcement against you,” Mr. Tedesco said.

Leo Morales, acting executive director of the ACLU of Idaho, said his organization has no plans to take legal action against the Knapps as long as they stick to performing marriage ceremonies and nothing else.

“What’s protected here is the religious activity,” said Mr. Morales. “Should this wedding chapel offer other services to the general public such as offering flowers, then that’s where they would get in trouble.”

He said the exemption would not apply to other Christian-run businesses such as bakeries and florists, a number of which are fighting legal battles in other states over their refusal to serve same-sex wedding ceremonies.

“We need to make sure it’s very clear to other businesses that there isn’t a broad exemption for businesses that provide other services,” Mr. Morales said.

The Knapps’ case drew a flood of media attention before Mr. Gridley said that the couple would not be prosecuted, prompting hundreds of angry phone calls and emails directed at the city of Coeur d‘Alene, said Mr. Erickson.

“I’ve screamed it from the tallest mountain, but it keeps coming back,” said Mr. Erickson. “They are not subject to this ordinance.”

But the Knapps, who at one point had packed their suitcases in preparation for a stint behind bars, just want to make sure it stays that way.

“They’re almost 70 years old,” said ADF attorney Jonathan Scruggs. “They don’t want to go to jail. They don’t want to lose everything they own.”

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