In my father’s generation, most of the men on the Italian side of my family were shopkeepers of one kind or another. Among the small businesses they ran were a hardware store, a liquor store, a retail shoe store, a shoe repair shop, a barber shop, and an ice cream parlor—and those are just the ones I remember. For many immigrants and their children, small business has been an important avenue for what sociologists and economists call “upward socio-economic mobility.” But the small, mom-and-pop shops have always been something more than a means for their proprietors to escape poverty and participate in the American Dream. They have also been family businesses, employing aunts, uncles, in-laws, and older children. Thus, they have generally reflected the attitudes, values, faith, and hopes of a small, tightly knit family group within an intimate work setting.
In this way, they were very different from the large corporations created to gain economies of scale, limited liability, specialized technological and marketing expertise, and all the other features we have come to associate with large-scale corporate enterprise in America. People who work for corporate organizations are usually large in number, generally unrelated to each other by ties of blood, and are diverse in their ethnicity and religious affiliations. They generally do not see their place of employment as an extension of their family, its values, or their private life.
The mom-and-pop store is different, and it should not be confused morally or legally with the larger and more impersonal business corporation. It also should not be confused with the individually owned franchise of a large national chain. Franchise owners are always, in some sense, public agents of their corporate sponsors. Proprietors of mom-and-pop stores remain agents only of themselves.
Mom, Pop, and Same-Sex Weddings
I have often wondered what I would do if I were the owner of a small mom-and-pop enterprise that did a substantial amount of its business in the wedding-related field and on strongly held moral and religious grounds objected to participating in gay wedding ceremonies. We’ve all read the stories of small-time florists, bakers, and photographers who refused on religious grounds to serve gay weddings and were fined or otherwise penalized for their non-participation under state or local anti-discrimination laws.
As classical liberals point out, none of these problems would have emerged if we had retained the older idea of property rights and limited government that was dominant in the eighteenth and nineteenth centuries. The problems we face today in dealing with the clash between deeply held moral and religious values and the obligations of private business are largely a product of the New Deal era. In its aftermath, state and national government began to dictate, in ever more elaborate ways, the manner in which private enterprises must conduct their businesses. In the process, rights of association and rights of contract were greatly restricted, a development praised by some and damned by others.
For better or worse, however, America does not seem ready to abandon, or even to greatly rein in, our contemporary interventionist government. A general constriction of government regulation does not seem to be in the cards, so it is unlikely that florists, bakers, and photographers will gain redress through this avenue.
Exemptions for Small Businesses
One possibility to help these business people is a legislative exemption to anti-discrimination laws that would limit the scope of business regulations affecting very small individual proprietors and mom-and-pop kinds of operation.
One of the most important provisions of the 1964 Civil Rights Act (Title VII) forbids discrimination in employment based on race, color, creed, national origin, or gender. But that same law exempted from its hiring provision very small enterprises with fewer than fifteen full-time employees. It seemed reasonable to those who passed the law to exempt small, individual proprietorships, many of them family-owned enterprises that hire mostly relatives and intimate friends, from any requirement to disregard such personal connections. What might be an acceptable regulation for General Motors was seen by many as an unseemly intrusion into the workings of a small, intimate, family-owned business.
At the state and local level, proprietors of very small businesses could conceivably gain exemptions from anti-discrimination laws in at least a limited number of areas. Churches and religious institutions are usually already exempt from such laws in the hiring of their clergy and religious personnel. On the national level, such “ministerial exceptions,” which were written into federal law, were upheld against a constitutional challenge in a 1987 Supreme Court case, Presiding Bishop v. Amos and, more recently, in Hosanna Tabor. Similarly, owner-occupied, single-family dwellings are usually exempt from laws covering discrimination in room and apartment rentals.
Restoring Religious Freedom
Legislative redress, however, is probably most likely to be achieved by passage of state-level Religious Freedom Restoration Acts (RFRAs). To date, nineteen states have passed such laws, which state that legislation and regulations impinging on the religious practices and sincerely held religious beliefs of state citizens must serve a truly compelling state interest—a high legal bar, if it is actually adhered to. Even then, the state must demonstrate that there is no practical means of achieving this state interest without intruding on religious freedom.
RFRA laws encourage a kind of legislative and judicial balancing of the rights and interests of religious practitioners with those of citizens protected by state anti-discrimination laws. In a clash between the rights and interests of gay couples and those of pious Christians, Jews, Muslims, and others who have strong religious objections to serving or participating in such celebrations, any fair balancing would surely tip in the direction of the religious vendors. Even in the heart of the Bible Belt, there are almost certainly alternative photographers, bakers, and florists who would be willing to provide their services. The harm to the gay wedding celebrants, if any, would be minimal. The same could not be said for religious believers who would be forced to participate in ceremonies that violate their consciences and religious beliefs.
Some object to the idea of exempting certain categories of citizens from neutral laws of general applicability, arguing that such exceptions create untoward privileges. But laws that clearly violate some people’s deeply held moral and religious beliefs are, for those people, hardly neutral.
Throughout American history, many legislative and judicial accommodations have been made to avoid clashes between obedience to public law and obedience to one’s conscience. From earliest colonial times, Quakers and others whose religion forbids the bearing of arms have generally been exempted from military and militia service. Catholic mass celebrants during the period of national prohibition were usually exempt from laws banning the possession of alcohol-containing wine. Members of the Native American Church are currently exempted from federal laws regarding the possession of peyote, the use of which is central to the church’s communal religious services. And, in one of the most highly praised Supreme Court opinions of the past half century, the court carved out a special exception to compulsory education laws for Amish children in Wisconsin v. Yoder.
What’s a Vendor to Do?
So state-level RFRA laws are surely a good idea. But alas, with the exception of Rhode Island, few of the “true blue” states have shown much inclination to pass them. What does one do if one is a vendor in such a state who normally serves weddings but objects in conscience to serving gay or other “non-traditional” wedding ceremonies?
For many, the answer is simple: terminate one’s dealings with all wedding ceremonies, gay or straight. This is usually a good strategy for avoiding conflict with state anti-discrimination laws. Vendors, after all, aren’t required to serve weddings, and a simple “we don’t do weddings” policy is usually sufficient for conscientious objectors to accommodate both the law and their deeply held moral and religious beliefs. For many vendors, this can be done without irreparable harm to the solvency of their business, though they would have to forgo previously profitable exchanges. My father, who owned a liquor store in New York for many years, would often be the liquor caterer at wedding ceremonies, but like many florists, bakers, photographers, musicians, bartenders, and the like, he surely could have survived had he terminated this aspect of his business.
But what about those small business owners for whom weddings are central to their business operation and for whom exiting from the wedding business would effectively put an end to their enterprise? As a young man, I once worked at a catering hall on Long Island run by a husband-and-wife team that was dependant almost entirely on the wedding business. Ceasing to serve weddings would surely have forced this couple to terminate their operation. Some specialty photographers and other small businesses are in a similar situation. In effect, they would have to choose between going out of business and violating their conscience and religious beliefs.
A Third Way
I think there is a third way. Although it may not be acceptable to all in this situation, it would be acceptable to many. It is simply this: to obey the law and serve gay weddings, but to make it known publicly that you believe that the law forcing you to do this is unjust, needs to be changed, and is obeyed only under protest and out of your respect for law and the democratic process.
The appeal of this strategy would obviously depend on how grave a wrong one considered one’s participation in gay wedding ceremonies to be. If it were a violation of one’s conscience and religion on the order of gravity of, say, participating in an abortion by a nurse or doctor who believes abortion to be murder, the strategy would obviously have to be rejected. By the reckoning of most religious people, however, destroying human life before it has even had a chance to come out of its mother’s womb is a moral violation of a radically different order of magnitude than participating in a ceremony that one deems a perversion of true marriage or a symbol of the degeneracy and confusion of modern times.
I could well imagine a pious religious couple, running the kind of wedding-focused catering hall that I once worked at in New York, posting on its premises an announcement something to this effect:
We are required by the Sexual Orientation and Gender Identity (SOGI) provision of New York State's anti-discrimination statute to make our wedding facilities available to anyone who seeks to use them, including gay and lesbian couples who want to marry under New York's same-sex marriage law. We believe strongly in the democratic process and the rule of law. For this reason, we will obey the state law governing our business. However, we obey this law only under the gravest protest, as we believe it violates our deepest moral and religious convictions. It does so needlessly and with apparent intent to polarize our country and inflame an already overheated cultural war.
We are Christians, and we believe that marriage is exclusively a relationship between one man and one woman. It should not, in our view, be construed as a relationship between people of the same sex or relationships involving three or more people.
We realize, however, that there are many people today who do not agree with us on these matters, and who hold their opposing views just as strongly as we hold ours. We respect the views of such people. We only ask that such people respect our own views in the same way that we respect theirs, and that, in the interest of tolerance and religious pluralism, they join us in seeking repeal of a law which requires us to violate our conscience. Those people who do not believe that marriage need be restricted to its traditional form and who seek a venue to celebrate non-traditional marriages have access to many other catering halls in this area that would be more than happy to accommodate their wishes.
Please do not ask us to violate our religious beliefs. We all must work together to accommodate our sincerely held differences in these matters. Our continued existence as a free, vibrant, tolerant and loving people surely depends upon it.
Such a declaration would have many advantages over simply giving in silently to an unfair law to save one’s business. It would strike out in a public way against the injustice of such a law and gain sympathy from many quarters for the business owner’s point of view.
It would also cast the business owner in the sympathetic role of the admirable peacemaker. His opponents would be cast in the role of authoritarian bullies picking on pious religious folks and opposing simple live-and-let-live solutions to the problems posed by American pluralism. Finally, such a declaration would probably discourage gays and lesbians from ever wanting to hold their wedding celebrations at any establishment that posted such a statement. The catering hall owners would have a strong First Amendment right to air their views, and by doing so they would probably end most instances where they are asked to do what their religion and moral sense forbids.
It’s possible that such a declaration might drive away the business of liberals sympathetic to gay marriage, but it is just as likely that it would gain sympathy from many quarters, including not only from social conservatives who oppose gay marriage on principle, but from many liberals and moderates who resent small guys being pushed around by state bureaucrats. If the declaration were properly worded and sounded a courteous-yet-concerned tone of inclusiveness, it would probably attract and repel equal numbers of people. Most potential customers, I suspect, would not be affected one way or the other.
In any case, it is what I would do if I were in the shoes of today’s mom-and-pop business owners who wish to maintain both their businesses and their beliefs. In the American tradition of principled ingenuity, we can—and we must—help solve the shopkeeper’s dilemma.
Russell K. Nieli is a lecturer in the Department of Politics and the James Madison Program in American Ideals and Institutions at Princeton University.