Should Mom-and-Pops That Forgo Gay Weddings Be Destroyed?

By Conor Friedersdorf

Friday, April 03, 2015

What do white evangelicals, Muslims, Mormons, blacks, conservative Republicans, and immigrants from Africa, South America, and Central America all have in common? They're less likely to support gay marriage than the average Californian. Over the years, I've patronized restaurants owned by members of all those groups. Today, if I went out into Greater Los Angeles and chatted up owners of mom-and-pop restaurants, I'd sooner or later find one who would decline to cater a gay wedding. The owners might be members of Rick Warren's church in Orange County. Or a family of immigrants in Little Ethiopia or on Olvera Street. Or a single black man or woman in Carson or Inglewood or El Segundo.

Should we destroy their livelihoods?

If I recorded audio proving their intent to discriminate against a hypothetical catering client and I gave the audio to you, would you post it on the Internet and encourage the general public to boycott, write nasty reviews, and drive them out of business, causing them to lay off their staff, lose their life savings, and hope for other work? If that fate befell a Mormon father with five kids or a childless Persian couple in their fifties or a Hispanic woman who sunk her nest egg into a pupusa truck, should that, do you think, be considered a victory for the gay-rights movement?

Before this week, I'd have guessed that few people would've considered that a victory for social justice. And I'd have thought that vast majorities see an important distinction between a business turning away gay patrons—which would certainly prompt me to boycott—and declining to cater a gay wedding. I see key distinctions despite wishing everyone would celebrate gay marriage and believing Jesus himself would have no problem with a baker or cook acting as a gay-wedding vendor. A restaurant that turned away all gay patrons would be banning them from a public accommodation every day of their lives. It might unpredictably or regularly affect their ability to meet a business client or dine with coworkers or friends. It would have only the most dubious connection to religious belief.

Whereas declining to cater a gay wedding affects people on one day of their life at most, denies them access to no public accommodation, and would seem to signal discomfort with the institution of same-sex marriage more than animus toward gay people (so long as we're still talking about businesses that gladly serve gays). I also suspect that the sorts of businesses that are uncomfortable catering a hypothetical gay wedding aren't uniquely averse to events where same-sex couples are celebrating nuptials. I'd wager, for example, that they'd feel a religious obligation to refrain from catering an art exhibition filled with sacrilegious pieces like Piss Christ, the awards ceremony for pornography professionals, a Planned Parenthood holiday party, or a Richard Dawkins speaking engagement.

A faction of my fellow gay-marriage proponents see things differently.

The latest opponents of gay marriage to be punished for their religious objections to the practice are the owners of Memories Pizza in Walkerton, Indiana.

Matt Welch lays out what happened:

    1) Family owners of small-town Indiana pizzeria spend zero time or energy commenting on gay issues.

    2) TV reporter from South Bend walks inside the pizzeria to ask the owners what they think of the controversial Religious Restoration Freedom Act. Owner Crystal O'Connor responds, "If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no….We are a Christian establishment." O'Connor also says—actually promises is the characterization here—that the establishment will continue to serve any gay or non-Christian person that walks through their door.

    3) The Internet explodes with insults directed at the O'Connor family and its business, including a high school girls golf coach in Indiana who tweets "Who's going to Walkerton, IN to burn down #memoriespizza w me?" Many of the enraged critics assert, inaccurately, that Memories Pizza discriminates against gay customers.

    4) In the face of the backlash, the O'Connors close the pizzeria temporarily, and say they may never reopen, and in fact might leave the state. "I don't know if we will reopen, or if we can, if it's safe to reopen," Crystal O'Connor tells The Blaze. "I'm just a little guy who had a little business that I probably don't have anymore," Kevin O'Connor tells the L.A. Times.

The owners of Memories Pizza are, I think, mistaken in what their Christian faith demands of them. And I believe their position on gay marriage to be wrongheaded. But I also believe that the position I'll gladly serve any gay customers but I feel my faith compels me to refrain from catering a gay wedding is less hateful or intolerant than let's go burn that family's business to the ground.

And I believe that the subset of the gay-rights movement intent on destroying their business and livelihood has done more harm than good here—that they've shifted their focus from championing historic advances for justice to perpetrating small injustices against marginal folks on the other side of the culture war. "The pizzeria discriminated against nobody," Welch wrote, "merely said that it would choose not to serve a gay wedding if asked. Which it never, ever would be, because who asks a small-town pizzeria to cater a heterosexual wedding, let alone a gay one?" They were punished for "expressing a disfavored opinion to a reporter."

To what end?

Proponents of using the state to punish businesses like this often draw analogies to Jim Crow. Julian Sanchez has persuasively addressed the shortcomings of that argument (even presuming that opponents of gay marriage are motivated by bigotry):

    ...The “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.

    We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race.  Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.

    Some of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.

    Rather, the actual cases we’ve been hearing about recently involve bigoted* photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.)  What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes  comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.

Perhaps that excerpt convinced some readers to rethink using state coercion to punish an atypically religious baker, photographer, or pizza seller, but they remain convinced that informal punishment of the Memories Pizza family is still appropriate.

The question I'd ask those who want to use non-state means to punish mom-and-pop businesses that decline to cater gay weddings is what, exactly, their notion of a fair punishment is. Nearly every supporter of gay marriage is on board with efforts to publicly tell people that their position is wrongheaded–I've participated in efforts like that for years and insist that respectful critique and persuasion is more effective than shaming. What about other approaches? If their Yelp rating goes down by a star does the punishment fit the "crime"? Is there a financial loss at which social pressure goes from appropriate to too much? How about putting them out of business? Digital mobs insulting them and their children? Email and phone threats from anonymous Internet users? If you think that any of those go too far have you spoken up against the people using those tactics?

(If not, is it because you're afraid they might turn on you?)

A relatively big digital mob has been attacking this powerless family in rural Indiana,** but I don't get the sense that its participants have reflected on or even thought of these questions. I don't think they recognize how ugly, intolerant and extreme their actions appear or the effect they'll have on Americans beyond the mainstream media, or that their vitriolic shaming these people has ultimately made them into martyrs. I fear that a backlash against their tactics will weaken support for the better angels of the gay rights movement at a time when more progress needs to be made, and that they're turning traditionalists into a fearful, alienated minority with a posture of defensiveness that closes them off to persuasion.

And that's a shame.

The religious impulse to shy away from even the most tangential interaction with gay weddings can be met with extremely powerful and persuasive counterarguments so long as we're operating in the realm of reason rather than coercion–so long as we're more interested in persuading than shaming or claiming scalps. Thanks to past persuasion, evangelicals are already evolving on this issue, as David Brooks points out, observing that "many young evangelicals understand that their faith should not be defined by this issue. If orthodox Christians are suddenly written out of polite society as modern-day Bull Connors, this would only halt progress, polarize the debate and lead to a bloody war of all against all."

As an example of a persuader, consider my colleague Jonathan Rauch, who advises the faithful that while they might mean "just leave us alone," others hear, "what we want most is to discriminate against you," a needlessly alienating message when there is "a missionary tradition of engagement and education, of resolutely and even cheerfully going out into an often uncomprehending world, rather than staying home with the shutters closed." He adds, "In this alternative tradition, a Christian photographer might see a same-sex wedding as an opportunity to engage and interact: a chance, perhaps, to explain why the service will be provided, but with a moral caveat or a prayer. Not every gay customer would welcome such a conversation, but it sure beats having the door slammed in your face." The best way forward for all sides is to love one another, or at least to act as though we do.

*While I grant that there are plenty of people whose opposition to gay marriage is rooted in bigotry, my belief is that some opposition to same-sex marriage is clearly not. I challenge anyone who disagrees to read (as just one of many counterexamples) the lovingly and beautifully written "Gay and Catholic: Accepting My Sexuality, Finding Community, Living My Faith," or even Mark Oppenheimer's well-written profile of its author, and to maintain the absolutist position.

**I'd be fascinated to how many grandparents of mob participants oppose gay marriage and what degree of social stigma they would want directed toward them.