Traditional Marriage and Freedom of Speech
Church May Encourage Signing Petition Supporting Traditional Marriage
Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth (9th Cir.(Mont.) Feb 25, 2009) (NO. 06-35883)
The Church assisted in an effort to collect signatures to place a constitutional initiative on the Montana ballot to amend the Montana constitution supporting traditional marriage by defining marriage as a union between one man and one woman. Less than fifty copies of the petition were copied on the Church’s copy machine using a member’s paper. Approximately twenty copies of the petition were placed in the Church’s foyer.
The Church advertised an audio-visual simulcast entitled Battle for Marriage which included presentations by several prominent religious leaders on the topic of marriage. Although the Church often incorporates simulcasts in its services and all of the Church’s services are open to the public, the Battle for Marriage was the only simulcast for which the Church secured public service announcements on the radio. In addition, the Church photocopied and circulated flyers publicizing the event, the template for which had been provided to the Church by the organizers of the simulcast. The flyers were placed in the Church’s bulletin and the pastor encouraged members of the congregation to take the flyers to their workplace and “let people see it.” The flyers did not mention the constitutional initiative.
Ninety-three people attended the Battle for Marriage event, well above the average attendance for a typical Sunday evening service at the Church. The congregation and members of the public watched the Battle for Marriage simulcast. In addition to televised presentations by several Christian ministers, the simulcast discussed a proposed amendment to the United States Constitution that would establish a definition of marriage as being solely between one man and one woman. It did not expressly support or oppose any Montana ballot issue or candidate for public office.
After the Battle for Marriage program ended, the pastor spoke to those in attendance about the Montana proposed constitutional amendment. He said that the threat to marriage also existed in Montana, and that the congregation should resist it in prayer and by signing the petition. The pastor told the audience that they “need[ed] to sign” the petition and that he would “encourage[ ] everyone to sign it. This is one of the ways that we take a stand for righteousness.” He then indicated that CI-96 petitions were available in the foyer near the Church’s exits. The following Sunday, the pastor circulated the petition for signature among the attendees at each of the Church’s three services that day during announcement time. The petitions remained available in the Church’s foyer for signature until they were submitted. They contained ninety-eight valid signatures. Ninety-two of these came from members of the Church.
The initiative was placed on the Montana ballot. It was passed by the voters of Montana by a margin 66.5% to 33.5%. An advocacy group filed a complaint against the Church alleging the Church, by its “expenditures” in connection with the Battle for Marriage event created an “incidental political committee” within the meaning of Montana’s campaign finance laws but had not filed the required disclosure forms. The Montana Commission of Political Practices (“Commission”) agreed.
The Ninth Circuit reversed. It held that, by applying its disclosure provisions to the Church’s de minimis in-kind contributions in the context of a state ballot initiative, the Commission violated the Church’s First Amendment rights.