I see that I have been unclear, and I’ll try to fix that. When I said “how the law could look”, I didn’t mean “the law permitting same-sex marriage”, I meant “the law as a whole”. So, in particular, “same-sex marriage stays illegal” is one possible way the law could look.
Regardless, I’m puzzled by two features of your answer.
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
(Of course there might then be a risk of lawsuits from same-sex couples who want to get married but can’t. But your second paragraph makes it clear that you aren’t counting that under the heading of “no way the law could work”.)
Second: there are what look to me like some serious gaps in your reasoning. To explain the gaps I think I see, I’ll begin by repeating your argument in more explicit form; please let me know if I misrepresent it. I’ll consider the law as it currently is rather than the more general question of whether any modified version might be better.
A. The Knapps’ lawsuit happened.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
C. Therefore, there was a real risk that the Knapps would be forced to perform same-sex marriages.
D. Therefore, there was a real risk that religious organizations would be forced to perform same-sex marriages.
Now, of course I agree with A. I do not agree with B; there are other reasons why the Knapps and/or the ADF might have chosen to file their lawsuit even if there was never a real risk that the Knapps would be required to perform same-sex marriages. I agree that C is a reasonable inference from B (and indeed might be correct even if B isn’t). I do not agree with the inference from C to D; the Knapps’ institution wasn’t a religious organization in the relevant sense, and if it had been then they would have been at no risk of coercion.
It seems, as I mentioned above, that shortly before filing the lawsuit the Knapps made a number of changes to the Hitching Post’s stated principles and practices. Perhaps after those changes it was a religious organization in the relevant sense. I hope it’s clear that “My organization was told it might have to conduct same-sex weddings; then a bunch of things about it changed; now my organization is a religious organization; therefore religious organizations are at risk of being forced to conduct same-sex weddings” is not good reasoning.
So: I still don’t see how the Knapps’ story is good evidence against Nancy’s denial that “forcing ministers and priests to perform gay weddings is at all likely”.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why? (For instance, do you think it would be best to forbid same-sex marriages altogether, on the grounds that if they are legal then it’s possible that some day a religious organization might have to conduct one?)
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
I didn’t say there was no way the law could work. I said it was possible there was no way the law could work (this questioning your implicit assumption that I had to tell you a way for it to work.)
At any rate, I can easily see how that law might not work either. The law is passed, then someone takes the religious group to court claiming that the law violates equal protection.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
This is an incorrect description of my argument. It is not true, in general, that preemptive lawsuits indicate a real risk. But it is true in this case, because what they were told by the city attorney’s office.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why?
I don’t know that there was anything they could have done instead. It may just be that they were screwed.
(This discussion doesn’t seem to be generating much light. I think I might drop it somewhere around now.)
I didn’t say you did say there was no way the law could work; I said you said that perhaps there was no way the law could work, because there might be no way to avoid the risk of lawsuits, and then I explained why it seemed obvious that there is a way to avoid that risk.
I already commented on the possibility of lawsuits going the other way, and explained why I didn’t think it relevant to your argument.
it is true in this case, because [of] what they were told by the city attorney’s office.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer. If you look at the actual wording of the attorney’s comments, it’s full of hedging.
Also, let me remind you: they were a purely commercial outfit offering weddings to anyone, religious or not; they talked to the attorney and were told that yes, in principle it could happen that they’d be obliged to conduct same-sex marriages; then they rewrote all their promotional materials to present them as a super-religious organization, and then they sued for the right not to marry same-sex couples. The “real risk” is that commercial wedding-sellers might be obliged to conduct same-sex marriages, which is not news and has nothing to do with the alleged risk to actual religious institutions.
I don’t know that there was anything they could have done instead.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer.
If that’s the explanation, then as soon as he sued the city, the city would have immediately said “given what you described in your lawsuit papers, what you want to do is legal” and ended the lawsuit right there.
I don’t know that there was anything they could have done instead.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
The argument is that religious leaders can be forced to perform gay marriages. Making them go through an expensive lawsuit if they don’t counts as force. If there’s nothing they or the lawmakers can do to prevent being forced, it’s still true that they can be forced, so the argument remains valid.
If that’s the explanation, then [...] ended the lawsuit right there.
It looks as if the city very quickly (1) stated explicitly that the Knapps were not in danger of being forced to perform same-sex marriages or punished for not doing so, and (2) attempted to settle. However, on further investigation it seems that the case is still going on. I have no inside knowledge as to what the obstacles to settlement are. Unless the city’s attorney is lying outright, they have explicitly said to the Knapps “We’re not going to pursue you, you’re good to go and you’re a religious corporation exempt under our ordinance”. (I assume that’s a paraphrase, but it’s a paraphrase by someone officially representing the city.)
So I think the city did do exactly what you say; but it’s not their lawsuit, they can’t dismiss it unilaterally, and for whatever reason the Knapps and/or the ADF aren’t satisfied and want more.
(Here is my guess at what more they want. The lawsuit requests not only an injunction telling the city not to take action against the Knapps for not marrying same-sex couples, but a declaratory judgement that the city’s ordinance as applied to the Knapps violates the First and Fourteenth Amendments. Given that the city hasn’t actually taken any action against the Knapps, that seems to be the same thing as a demand for a declaratory judgement that the city’s ordinance itself is unconstitutional. I can see why they might be unwilling to accept that.)
the argument remains valid
The fact that an ideological advocacy group can file a frivolous lawsuit simply isn’t much evidence that there’s an actual danger of the kind of coercion they claim to be worried about.
I see that I have been unclear, and I’ll try to fix that. When I said “how the law could look”, I didn’t mean “the law permitting same-sex marriage”, I meant “the law as a whole”. So, in particular, “same-sex marriage stays illegal” is one possible way the law could look.
Regardless, I’m puzzled by two features of your answer.
First: Suppose the law said: Same-sex couples are allowed to get married, but no one is under any circumstances obliged to marry them. Then there would be no possible grounds for a lawsuit of the kind we’re discussing here. Why doesn’t that refute your suggestion that perhaps “there is no way the law could work”?
(Of course there might then be a risk of lawsuits from same-sex couples who want to get married but can’t. But your second paragraph makes it clear that you aren’t counting that under the heading of “no way the law could work”.)
Second: there are what look to me like some serious gaps in your reasoning. To explain the gaps I think I see, I’ll begin by repeating your argument in more explicit form; please let me know if I misrepresent it. I’ll consider the law as it currently is rather than the more general question of whether any modified version might be better.
A. The Knapps’ lawsuit happened.
B. This was a preemptive lawsuit, but if there is a preemptive lawsuit then that shows that there was a real risk of coercion that it was trying to prevent.
C. Therefore, there was a real risk that the Knapps would be forced to perform same-sex marriages.
D. Therefore, there was a real risk that religious organizations would be forced to perform same-sex marriages.
Now, of course I agree with A. I do not agree with B; there are other reasons why the Knapps and/or the ADF might have chosen to file their lawsuit even if there was never a real risk that the Knapps would be required to perform same-sex marriages. I agree that C is a reasonable inference from B (and indeed might be correct even if B isn’t). I do not agree with the inference from C to D; the Knapps’ institution wasn’t a religious organization in the relevant sense, and if it had been then they would have been at no risk of coercion.
It seems, as I mentioned above, that shortly before filing the lawsuit the Knapps made a number of changes to the Hitching Post’s stated principles and practices. Perhaps after those changes it was a religious organization in the relevant sense. I hope it’s clear that “My organization was told it might have to conduct same-sex weddings; then a bunch of things about it changed; now my organization is a religious organization; therefore religious organizations are at risk of being forced to conduct same-sex weddings” is not good reasoning.
So: I still don’t see how the Knapps’ story is good evidence against Nancy’s denial that “forcing ministers and priests to perform gay weddings is at all likely”.
I was actually rather hoping you’d answer the last question I asked: what do you think they should have done instead and why? (For instance, do you think it would be best to forbid same-sex marriages altogether, on the grounds that if they are legal then it’s possible that some day a religious organization might have to conduct one?)
I didn’t say there was no way the law could work. I said it was possible there was no way the law could work (this questioning your implicit assumption that I had to tell you a way for it to work.)
At any rate, I can easily see how that law might not work either. The law is passed, then someone takes the religious group to court claiming that the law violates equal protection.
This is an incorrect description of my argument. It is not true, in general, that preemptive lawsuits indicate a real risk. But it is true in this case, because what they were told by the city attorney’s office.
I don’t know that there was anything they could have done instead. It may just be that they were screwed.
(This discussion doesn’t seem to be generating much light. I think I might drop it somewhere around now.)
I didn’t say you did say there was no way the law could work; I said you said that perhaps there was no way the law could work, because there might be no way to avoid the risk of lawsuits, and then I explained why it seemed obvious that there is a way to avoid that risk.
I already commented on the possibility of lawsuits going the other way, and explained why I didn’t think it relevant to your argument.
If you talk to a lawyer and say “Look, there’s this law that says X; is there any possibility that it might be used against me?” they are always, always going to give the most conservative answer. If you look at the actual wording of the attorney’s comments, it’s full of hedging.
Also, let me remind you: they were a purely commercial outfit offering weddings to anyone, religious or not; they talked to the attorney and were told that yes, in principle it could happen that they’d be obliged to conduct same-sex marriages; then they rewrote all their promotional materials to present them as a super-religious organization, and then they sued for the right not to marry same-sex couples. The “real risk” is that commercial wedding-sellers might be obliged to conduct same-sex marriages, which is not news and has nothing to do with the alleged risk to actual religious institutions.
In which case, the fact that what they actually did didn’t completely eliminate the risk of lawsuits is hardly much of an argument against it.
If that’s the explanation, then as soon as he sued the city, the city would have immediately said “given what you described in your lawsuit papers, what you want to do is legal” and ended the lawsuit right there.
The argument is that religious leaders can be forced to perform gay marriages. Making them go through an expensive lawsuit if they don’t counts as force. If there’s nothing they or the lawmakers can do to prevent being forced, it’s still true that they can be forced, so the argument remains valid.
It looks as if the city very quickly (1) stated explicitly that the Knapps were not in danger of being forced to perform same-sex marriages or punished for not doing so, and (2) attempted to settle. However, on further investigation it seems that the case is still going on. I have no inside knowledge as to what the obstacles to settlement are. Unless the city’s attorney is lying outright, they have explicitly said to the Knapps “We’re not going to pursue you, you’re good to go and you’re a religious corporation exempt under our ordinance”. (I assume that’s a paraphrase, but it’s a paraphrase by someone officially representing the city.)
So I think the city did do exactly what you say; but it’s not their lawsuit, they can’t dismiss it unilaterally, and for whatever reason the Knapps and/or the ADF aren’t satisfied and want more.
(Here is my guess at what more they want. The lawsuit requests not only an injunction telling the city not to take action against the Knapps for not marrying same-sex couples, but a declaratory judgement that the city’s ordinance as applied to the Knapps violates the First and Fourteenth Amendments. Given that the city hasn’t actually taken any action against the Knapps, that seems to be the same thing as a demand for a declaratory judgement that the city’s ordinance itself is unconstitutional. I can see why they might be unwilling to accept that.)
The fact that an ideological advocacy group can file a frivolous lawsuit simply isn’t much evidence that there’s an actual danger of the kind of coercion they claim to be worried about.