December 10, 2022
“Can’t we all just get along?” Apparently not. In America, we want to promote an open, tolerant society for the sake of access and for the sake of long-term stability. We also want to preserve people’s rights and not force anyone to do things that violate their speech or conscience. When and how the government should intervene to promote access or protect rights has been a never-ending debate. We have made some logical progress in making reasonable distinctions amongst competing interests, but often we encounter incidents where the lines seem to be blurred. Sometimes advocates for certain positions appear to contradict their own principles or take liberties with certain distinctions when it benefits them while heavily discounting the distinctions when they do not. One such example occurred in Virginia recently.
The Family Foundation, a conservative Christian advocacy group, had reservations for a private room at a restaurant called Metzger Bar & Butchery in Virginia. Just over an hour before their event, the restaurant cancelled their reservation and turned them away. Why? According to a statement on the restaurant’s Facebook page,
“Metzger Bar and Butchery has always prided itself on being an inclusive environment for people to dine in. In eight years of service we have very rarely refused service to anyone who wished to dine with us. Recently we refused service to a group that had booked an event with us after the owners of Metzger found out it was a group of donors to a political organization that seeks to deprive women and LGBTQ+ persons of their basic human rights in Virginia. We have always refused service to anyone for making our staff uncomfortable or unsafe and this was the driving force behind our decision. Many of our staff are women and/or members of the LGBTQ+ community. All of our staff are people with rights who deserve dignity and a safe work environment. We respect our staff’s established rights as humans and strive to create a work environment where they can do their jobs with dignity, comfort and safety.”
In other words, the restaurant disagreed with the group’s religious beliefs, made assumptions about their motives and character, refused them service at a place of public accomodation, and used the unsupported, subjectively-defined excuse of “making our staff uncomfortable or unsafe” as a justification for the discrimination. If there had ever been any actual inappropriate contact between these two establishments and/or any of their people, it does not appear to have been reported thus far.
The Family Foundation, according to their website, “is a 501(c)(3) nonprofit, non partisan, faith-based organization” that seeks to “preserve and promote the family in Virginia as God’s foundation upon which all free and thriving societies are built.” Upon reviewing their stances on their focus issues as well as their actions, it appears the group maintains a strong, principled, standard conservative Christian worldview and political position. There does not appear to be anything indicating hateful rhetoric or advocacy of violence towards any persons/groups or anything that would suggest the restaurant’s employees could reasonably fear for their safety.
The Family Foundation posted their version of events on their website,
“Have you ever been denied a meal because of your beliefs? Last night, our team and supporters got that firsthand experience when Metzger’s Bar and Butchery in Richmond, VA refused to service our pre-reserved event, leaving us scrambling just moments before. For weeks, we had planned a gathering of supporters and interested people in a private room to fellowship and receive an update on our work. About an hour and a half before the event was set to take place, one of the restaurant’s owners called our team to cancel the event. As our VP of Operations explained that guests were arriving at their restaurant shortly, she asked for an explanation. Sure enough, an employee looked up our organization, and their wait staff refused to serve us.”
As a society, we must choose how we want to handle using the law to govern associations and interactions between non-consenting individuals in general public accomodation, contractual work, and other commercial dealings. We could follow the Libertarian model, which would essentially allow anyone offering a good or service to refuse dealing with anyone for any reason they wish. This would maximize free will and freedom of association. Or we could follow an opposite, heavy-handed approach that requires everyone to service anyone that wishes to utilize someone’s services and is able to pay for it. This would maximize access in an open society and present more opportunities for more people. Each of these options however comes at a cost. The former threatens to create a less-stable, divided, tiered society of unequal access, especially for groups that have historically suffered discrimination based on certain characteristics. The latter threatens to become oppressive, as it disregards the conscience and substitutes coercion for free will. It also stifles genuine cosmopolitanism and understanding between different groups as it forces a somewhat artificial togetherness. For better or worse, our society in various ways, on the state and federal level, has slowly crafted laws and regulations that blazed a middle path between these two extremes. Problems with practical application aside, the reasoning behind this middle-ground approach is logical and it is based on recognizing and sorting competing fundamental rights and inherent “goods” in context, it is not merely a wishy-washy compromise. Groups that have experienced discrimination historically have been guaranteed access to general public accomodations so that they may live their lives without unreasonable inconvenience and obtain the goods and services necessary for human flourishing (goods that would be unavailable to them otherwise). On the other hand, our law recognizes there must be exceptions made for, and/or respect for the rights of, business owners and service providers that cannot participate in certain activity because of religious beliefs, genuinely held convictions, or other reasons that conflict with their valid interests. Being forced to do so by a government would be comparable to forced-speech or a denial of their speech; it would disregard their consent in a manner that violates their First Amendment rights, their autonomy, or it may present other inherent contradictions that cannot justify the coercion.
The distinction distinguishing what may be permissible for government protection and what ought to remain up to the individual’s discretion revolves around the essence of the activity and the duties required of the service provider. The Masterpiece Cakeshop Supreme Court case provides an excellent example of a logical distinction. The owner of the shop, Jack Phillips, sells baked good to everyone consistent with existing anti-discrimination and public accomodation laws. When faced with the prospect of a custom order that requires his specific artistic expression for a specific occasion however, he maintains he has the right to deny his custom services to people which are engaged in activity or messages that contradict his sincerely held religious beliefs. This makes sense, as consent is necessary to uphold the right to free association and laws coercing him to consent to certain actions or messages would constitute forced, government-compelled speech that contradicts his religious freedom and First Amendment protections. The ready-made baked goods he sells to the general public imply consent to sell to anyone, and anti-discrimination/public accomodation laws requiring the sale do not therefore contradict the fundamental rights of the baker/shop owner. There is no issue of compelled speech or forced participation in controversial activity inherent in selling the ready-made baked goods. While the Masterpiece Cakeshop case provides an example of one type of distinction, the Supreme Court did not settle the matter completely with this case. Another case currently being heard by the Court regarding Lorie Smith – a devout Christian website designer seeking to expand her business by include wedding websites, but only for heterosexual couples as her religion requires – may provide more clarity on the issue, at least in certain respects. This case too, however, will not be the end-all of this debate.
So how does the Metzger restaurant incident hold up against the distinction described above? Certainly restaurant service alone falls squarely within the general anti-discrimination/public accomodation sphere. In general, restaurants open to the public at-large cannot pick and choose who they serve based on real or perceived religious beliefs. Cooking and serving food to paying customers that want to eat it is a basic human interaction and function. There is no logically defendable reason one could object to this interaction without bring intolerance, hatred, or other bigotry into the equation. The Family Foundation however reserved a room for an “event.” Does a room reservation for an event move the incident into the sphere of service that would require the provider to participate in activity contrary to their sincerely held beliefs in violation of their fundamental rights? Does government forcing a host to accommodate a group in a reserved room open to the public essentially compel the host to support the group’s speech or stop the host from expressing their speech? We know the venue disagrees with the political, ideological, and religious positions of the clients in this case. But unlike other cases such as venues that may decline a gay wedding on religious freedom grounds because they would be participating in the event in which they disagree, or a private parade with a permit that may turn away an interest group that wishes to participate because they do not agree with their ideals, this instance was merely a meeting for food and discussion in a place specifically set up to facilitate just that. It is more difficult to argue denial of service on grounds of conviction when the essential service offered is merely accomodation alone and that accomodation is offered to everyone. It seems more akin to the point that Jack Phillips serves everyone ready-made baked goods and Lorie Smith creating websites for everyone when the content does not violate her religious beliefs. Perhaps if the Family Foundation was holding a different type of event, one where the controversial activity/speech was front and center, like a public rally or public fundraiser, the restaurant would have a better case regarding denial of service since facilitating the event may appear to suggest consent to the speech or directly contradict the rights and interests of the venue. As it stands, given their own reasoning (general disagreement and a perceived unsafe setting) however, it does not appear the maxim of their reasoning/action can be universalized in a manner that would be consistent with our public accomodation/rights preservation precedent.
We may not always be able to “get along” insofar as agreeing on things like guiding ideals, cultural practices, or individual lifestyles. But we ought to be able to craft a logical system that fosters tolerance and common decency in the public square because at fundamental levels we are all the same and have similar needs. When disagreements like this Metzger/Family Foundation incident occur, we must sort through it and identify the relevant points to match them with our current understanding and laws. There is a lot of ignorant, misguided framing surrounding these types of incidents and with the Supreme Court weighing in on a similar matter soon, we must be ready to process their decision rationally to avoid violent reactions and attempts to spin it for hateful, partisan reasons. Above all, love one another, treat people with respect, and don’t expect government coercion to be the answer to forcing others to comply with your desires when it is unwarranted.