Public Accommodation Laws

Through carefully written laws, legislators can keep religious businesses in the marketplace and ensure that no members of the LGBT community are refused service by a business on Main Street.

Public accommodations laws exist in many different parts of the country to make sure that people can participate in the marketplace—shopping for groceries, hiring plumbers, purchasing furniture, etc.—without facing discrimination because of their gender, race, sexual orientation, and religion, among other things. States have “added the words” sexual orientation and gender identity (“SOGI”) to these important protections to ensure that all are treated decently.

But as Graphic 1 shows, the 1st generation SOGIs were written without marriage in mind.

As a result, 1st generation SOGIs have had the unfortunate and unintended consequence of putting religious business owners, like the baker from the Masterpiece Cakeshop case, in a tough spot when it comes to weddings. These business owners feel they cannot participate personally in a wedding that does not conform to their faith by providing services. One business owner explained that "her relationship with Jesus Christ” prevented her from providing custom flower arrangements for her long-time client’s  same-sex wedding. She sought not to deny anyone access to marriage, but to step aside from participating.

As Graphic 1 shows, this case, like Masterpiece Cakeshop, has been litigated under a law the preceded same-sex marriage—a law that could not have left room for everyone in the public square. Indeed, every wedding vendor case shown has been resolved under laws written years before same-sex marriage—in some cases, before same-sex marriage was recognized anywhere in the United States, as a quick comparison of Elane Photography and New Mexico’s 1st generation SOGI shows.

It is true that businesses have refused to serve LGBT persons or same-sex couples in all kinds of settings.  When a hardware store owner posts a “No Gays Allowed” sign, it is hard to understand this except as animus.  Hammers have no moral content. But 1st generation SOGIs treat a request to step aside from a religiously infused service like a wedding, which a majority of Americans see as a religious event, as if the provider had said “get the hell out of my hardware store.”

Morally, these two acts are distinct.  The provider’s objection had less to do with the couple in front of her than it does with the God she worships—marriage-focused objections may be parsed from objections to persons themselves. That fact does not make a refusal feel any better, however.

The primary thrust of public accommodations laws is that no one who comes into a shop is told to get out, no one is sent down the street. That overarching goal can be accomplished by regulating the business, not the individual owner.

But 1st generation SOGIs make no distinction between refusals directed at a people and refusals tied to one’s deeply held faith convictions about marriage. And 1st generation SOGIs could not have parsed carefully because they were written without marriage in mind.

These older laws have threatened to put religious business owners out of business, heaping large fines upon them for following their conviction.  The owners have not sought to deny anyone access to marriage, they have asked to step away.

All across America, when claims for respect by LGBT persons and the demands of faith collide, only two answers are given:  gay people can get out (the flat part of the map in Graphic 2, affording no protection from discrimination on the basis of sexual orientation or gender identity) or religious people can leave the marketplace (bumpy parts of Graphic 2, in which laws were written without these collisions in mind).  True, in some states there are heightened protections for religious burden but thee yield to a compelling state interest in all persons being treated with respect.

There’s no need for an either/or approach.

We need a new generation of SOGI laws that consciously make room in the public square for all Americans and treats all Americans with dignity, whether they are couples who are marrying or the owners of businesses who are deeply devout on this question.

The idea that there is room for both values is not a new or radical idea. Lawmakers have parsed between duties placed on regulated businesses, however broadly defined, to serve all people and who within the business provides the specific religiously infused service. Congress did this in 1972 when it directed employers, even the government, to accommodate religious employees who couldn’t perform a particular service for religious reasons when doing so is feasible. For example, postal workers who are Quakers and opposed to war have been staffed around when asking if another worker could accept military selective service applications.

Staffing around does not negate the government’s duty to serve all people. Instead, it encourages employers to find a way in which all persons are respected, both the public and employees, while fulfilling the government’s essential role.  That live-and-let approach has been in our laws since 1972.

Elsewhere, we note that such work-arounds are feasible when lawmakers craft newer, more flexible structures for accomplishing the government’s work.  For example, the state must assist all couples to marry civilly on the same basis, without treating couples differently. At the same time, an employee in the responsible state offices may ask to step aside from solemnizing marriages for anyone because of their religious convictions.  Allowing offices to tap community members authorized to marry persons—most states have an extensive list--to be available to solemnize civil marriages for all couples who request it avoids the need to fire anyone or treat anyone differently.

The primary thrust of public accommodations laws is that no one who comes into a shop on Main Street is told to get out, no one is sent down the street. That overarching goal of treating all Americans with dignity can be accomplished by regulating the business, not every person in it.

Enacting newer SOGIs that consciously borrow from Congress’s example in 1972 falls squarely in line with what the United States Supreme Court in Masterpiece Cakeshop. The Court charted two principles that should guide us going forward:

• make space for everyone in the marketplace “with tolerance, without undue disrespect to sincere religious beliefs,” while

• refusing to treat LGBT persons as “social outcasts or as inferior in dignity and worth.”

Masterpiece Cakeshop calls for a new chapter in American pluralism, precisely the kind of openness and respect for all at the heart of Fairness for All.

No one should be turned away from a business open to all on Main Street. But neither should persons of faith effectively be barred from small businesses that focus on, or only sometimes cater to, weddings. To borrow a quip, bakeries cannot be choosers. But individual business owners should be allowed to decide how the cake is baked.