Bench Memos

Marriage and the Left’s Duplicity on Pre-Enforcement Challenges

Premature! A set up! Fabricated! The city never threatened them!

It is rich reading these charges regarding the lawsuit two ordained ministers, Don and Lynn Knapp, recently filed on behalf of themselves and their wedding business, The Hitching Post. As you probably know by now — it is big national news – the Knapps filed the lawsuit to prevent officials in Coeur d’Alene, Idaho, from enforcing a criminal, sexual-orientation nondiscrimination ordinance against them for declining to perform same-sex wedding ceremonies based on their religious beliefs about marriage.

The Knapps filed what is called a “pre-enforcement” challenge. Leftist groups frequently use these types of challenges to advance their agenda, which is why it is so amusing that people in their camp are squawking that the Knapps filed such a suit.

Pre-enforcement challenges are lawsuits filed before actual enforcement of a law.   

These types of lawsuits have a venerable legal pedigree, and play a pivotal role in protecting our precious First Amendment freedoms. They are based on a simple and understandable proposition: that people should be able to challenge a law that threatens their First Amendment rights without having to subject themselves to criminal prosecution. 

The United States Supreme Court has explained it this way in Steffel v. Thompson: ”[I]t is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Instead, all a plaintiff needs to show is a “credible threat” of enforcement to go to court and obtain an injunction.

The Knapps easily clear that hurdle. Prior to filing their lawsuit, the city’s deputy attorney gave an interview where he stated: “I would think that the Hitching Post would probably be considered a place of public accommodation that would be subject to the ordinance.” He asserted this again in another interview. City officials then twice confirmed in private conversations with Don Knapp that the Knapps would violate the ordinance if they declined to perform same-sex wedding ceremonies should same-sex marriage be legalized in Idaho. 

Once the Knapps declined a same-sex wedding ceremony October 17, they immediately filed a lawsuit to avoid being subject to jail time and criminal fines under the ordinance simply for exercising their faith. After the lawsuit was filed, city officials sent the Knapps’ attorneys a letter confirming that for-profit wedding chapels, like The Hitching Post, would violate the ordinance if they declined to perform same-sex wedding ceremonies. The letter states that nonprofits are exempt from the ordinance, but that for-profit wedding chapels are not ”if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.” 

The above facts provide a solid foundation for filing a pre-enforcement challenge.  In fact, it is a far more solid foundation than many pre-enforcement lawsuits the Left has filed (and won) to achieve their legal goals. 

For instance, in Virginia v. American Booksellers Association, booksellers filed a pre-enforcement challenge against a Virginia law that made it a crime for any person “to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse” visual or written material that “depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles.”  No government official had threatened the booksellers under the law, yet they filed a pre-enforcement challenge to make sure that adults could access these pornographic (and worse) materials without the “burden” of having to enter an adults-only section of a store.  They eventually won. 

So, think on this folks.  The Left jealously protects its right to use pre-enforcement challenges to make sure adults can access sadomasochistic porn, but denigrates two senior-citizen pastors for using the same mechanism to avoid being prosecuted for exercising their faith.

Don’t be duped. The Left is duplicitous. And that’s putting it nicely.  The Knapps had every right to file a pre-enforcement challenge considering the dire consequences they faced as a result of acting on their religious convictions and declining to perform a same-sex wedding ceremony.  Anyone who found themselves in the Knapps’ shoes would have done the same. 

— Jeremy Tedesco is senior legal counsel with Alliance Defending Freedom. He represents the two pastors who filed suit against the city of Coeur D’Alene, Idaho.

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