How will the case of the Hitching Post vs City of CDA go?
It has been a week and a day since the most recent motion was heard (motion to dismiss brought by the city). I was there and very disappointed with Hitching Post’s attorneys. Rather than boiling the issue down to the nut – which is what the judge was looking for – the spokesman for the attorney team maintained a complex and comprehensive view of the situation. The main problem being that of playing into the city’s use of the term “religious corporation”; the other problems being unfocused and not answering the judge directly and specifically.
Let’s talk about religious corporations: In filings with the Secretary of State – any state – a business must select the type of entity they wish to represent themselves as; such as sole proprietor, partnership, limited liability or other corporations, etc. At no time does a secretary of state separate religious versus secular, nor do they determine profit versus non-profit. It is only through the IRS where a determination can be granted for non-profit (501c3 or 501c4). Therefore, in law there is no such thing as a religious corporation.
Because of this fact of law, the news reports were always confusing to me: why would a public (city) attorney deem the Hitching Post to be a religious corporation when there is no such thing. It became more clear in the muddy waters of the court proceedings someone must have written into the filing under the business description “religious corporation” or something such as this. A good attorney would have reduced the issue and killed the bird the prosecution was holding by explaining to the judge someone wrote this phrase in the business entity filing for the sole purpose of meeting the exemptions described within the municipal code in dispute and that this phrase cannot satisfy the exemption because neither the phrase as written in the business entity filing or as written in the municipal code can meet any legal standard as there is no such thing as a religious corporation. He should have explained to the judge, for this reason alone, it is obvious the Hitching Post and all related parties to it are under the threat of prosecution. This is the answer the judge was fishing for.
Furthermore, the attorney should have made the case the city has revised the definition of religious corporation to mean a non-profit corporation. Thus, the city’s motion to dismiss, which is based on the premise the Hitching Post is a religious corporation and is therefore exempt from the statute, is ineffective. The Hitching Post is not a non-profit but is a for-profit corporation and is, thereby, under the threat of prosecution and because of this, the case needs to proceed.
When the judge asked what the defense ultimately wanted him to do, the Hitching Post’s attorney answered him with a request for injunction. The problem is, the judge could grant no such thing for the issue before him is whether to dismiss this case or not. The answer from the attorney should have been a request to throw out the motion to dismiss but this never came up under verbal arguments during the hearing for the motion to dismiss.
Several people attending this hearing expressed positive hope, based upon comments made by the judge, he would rule in the favor of the Hitching Post (against the motion to dismiss). However, in a recent case, he wrote: “. . . with Latta and Obergefell providing the template upon which the states must recognize same-sex marriages. . .” It is obvious, there are going to be hurdles for this judge to jump and the Hitching Post’s attorney gave him no help. If the judge does NOT rule for dismissal, it will only be because God moved his conscience but it will not be for any legal strategy conceived by counsel. My hope is in God, regardless this ruling – nonetheless, I have little hope for the ruling on this motion.