On one particular morning in May of 2014, partners Kelly Williams and Collin Dewberry, after dining at Big Earl’s House and Country Store in Pittsburgh, Texas, were asked by their waitress not to return to the establishment. According to the waitress, the couple had committed a violation of restaurant policy – their legs were touching as they ate – which states that, “men act like men, women act like ladies, no saggy pants and we reserve the right to refuse service to anyone” (Courtney 1499). The waitress, daughter of Mr. “Big Earl” Cheney himself, claimed the ban had nothing to do with the couple’s sexual orientation. The main issue was that restaurant policy, posted on the door for all patrons to see, had been broken (although Earl Cheney admitted to his daughter telling the men “we just don’t like fags”) (Courtney 1498). While the couple didn’t pursue any legal action, Big Earl’s became swamped with extensive media attention for what Paul Vincent Courtney refers to as a “nuanced” sort of discrimination; he claims Big Earl’s “regime of forced compliance with heterosexual norms” (Courtney 1499) is just as dangerous as outright refusal of service because it “denies individuals the freedom to elaborate their authentic selves” (Courtney 1499).
Although highly contested in practice, Big Earl’s “right to refuse service to anyone” is validated by the fact that Texas law statutes don’t address the topic of sexual orientation discrimination; they are amongst twenty-nine states either without public accommodations statutes or laws explicitly prohibiting discrimination based on sexual orientation. While the refusal to serve same-sex couples can be viewed as a product of the backlash against the LGBTQ+ community’s growing visibility, its greater consequences transcend acts of religious resistance. Restaurants and similar food establishments are not solely joints to grab a bite at – they serve as important spaces where “families gather, friends meet, and new connections are made…where American culture happens” (Jayaraman 13). To allow eateries to deny non-heterosexual customers from service is to also hand these establishments the power to exclude the LGBTQ+ community from engaging in a food space’s cultural discourse. This exclusion touches far beyond mere cursory discrimination, as it attempts to circumscribe a culture, whether it is locally, regionally, or nationally, in which the LGBTQ+ community is absent, and brings up an important conflict between religious liberty and social equality.
Contesting the fight for sexual orientation equality is the fight for religious liberty. Many business owners cite the First Amendment’s Free Exercise clause, which protects an owner’s right to exercise their religious beliefs. The interpretation of the First Amendment is then called into question, as well as another battle regarding a restaurant owner’s right to create and cultivate a dining culture personal to them. With the aim of reconciling the desire for LGBTQ+ equality with religious liberty, I will examine how, by recognizing congruencies between the objectives of both sides, a proposed compromise that strikes a “balance” between each group, although imperfect, can bring us closer to a solution.
The lack of provisions protecting the LGBTQ+ community is not solely an issue on the state level. The federal Civil Rights Act of 1964 prohibits the discrimination of any person by public accommodations based on an “individual’s race, color, religion, sex, or national origin” (“Equal Protection” 2016), but does not mention discrimination of individuals based on sexual orientation,. Not prohibiting sexual orientation discrimination in the Civil Rights Act of 1964 subsequently leads to an exclusion of LGBTQ+ individuals from the right of equal protections under the Fourteenth Amendment’s Equal Protection Clause and the Fifth Amendment’s Due Process Clause. While other citizens are secured by the Civil Rights Act’s anti-discrimination legislation to prohibit discrimination on the basis of their gender, religion, race, color, or ethnicity, individuals who identify as non-heterosexuals are part of a paradoxical phenomenon – the promise of “equal protection of the laws” in the Fourteenth Amendment is not a collectively exhaustive protection for all people.
Furthermore, the ability to exclude LGBTQ+ individuals, particularly from restaurants and other foodways, contains just as many cultural ramifications as it does legal ones, especially for the genderqueer and trans communities. Post-World War II, saloons and similar businesses were hubs for the LGBTQ+ community. Separated from the blatant homophobia of greater society, these spaces allowed LGBTQ+ individuals to meet partners in confidence, and demonstratively express their sexualities without fear of repercussion, shaping both “individual and group identities” within the LGBTQ+ community (Armstrong and Crage 728). Police raids on “gay bars” thus became a common way to inhibit same-sex activity in society, and also hush the growing gay identity that was cultivated in these establishments. Frequenters of the Stonewall Inn, a gay bar in Manhattan’s Greenwich Village, were no strangers to bar raids, however, in the early morning hours of June 27, 1969, patrons gathered outside the establishment after a routine raid and ejection from the city police, and began to protest law enforcement’s repression against the gay community, throwing debris at police officers in retaliation, as well as trapping authorities inside the bar until reinforcement was eventually called and the riot died down (737). This first episode incited further protest; a second night of rioting and activism led to a crowd of almost 2,000 people that congested Christopher Street, blocking off entrance into the area and expanding “territorial claims from the bar to the neighborhood” by shouting, “Christopher Street belongs to the queens!,” as well as using the event to circulate pamphlets and gain media coverage regarding LGBTQ+ discrimination (738). The LGBTQ+ community was tired of restricting itself to previous, non-confrontational forms of activism, and demanded its voice be heard. Subsequently, the Stonewall Inn’s role expanded to accommodate the changing fervor of its community, extending from one of the few safe havens openly welcoming LGBTQ+ individuals to an influential symbol of the gay liberation movement. Stonewall is still commonly employed as a treasured piece of LGBTQ+ culture, and is often used to divide gay history into “two epochs: before and after Stonewall.” (724). The New York City Pride Parade, which annually celebrates the LGBTQ+ community today, designates Christopher Street as the last stop in its route, thus paying special homage to how the Stonewall Inn, like so many other foodways, transcended its first-dimensional role as a “physical space” – actualizing as a meeting place for community members to share in the expression of their identities, and foster a community culture powerful enough to fuel a social movement.
When restaurant owners are given the ability to refuse LGBTQ+ individuals from entering these establishments, they are effectively wielding the power to exclude the LGBTQ+ narrative from entering the cultural sphere that is constantly being created there. Equally as disconcerting is the attempt to decrease LGBTQ+ visibility within these foodways, in which the LGBTQ+ “identity liberty” is “curtailed by the absence of a law that prohibits public accommodations from discriminating against [LGBTQ+ individuals] on the basis of sexual orientation” (Feldblum 62). To expatiate further, Professor Kenji Yoshino argues, “homosexual self-identification and homosexual conduct are sufficiently central to gay identity that burdening such acts is tantamount to burdening gay status” (NeJaime 1197). Restaurants like Big Earl’s may serve patrons who identify as LGBTQ+ without distress, but prohibiting the expression of the LGBTQ+ identity results in the covering of a “performance identity”, and thus obscures the LGBTQ+ presence in the surrounding community (NeJaime 1196).
The primary argument against prohibiting sexual discrimination in restaurants and other public accommodations comes from business owners and servers who believe that the right to freely exercise their religious beliefs, protected under the Free Exercise Clause of the First Amendment, includes denying services to individuals who have violated core values of their faith. In response, many counter these principles by affirming that the greater restaurant industry, defined as a type of public accommodation, has no singular religious affiliation, and thus owners should have no religious incentives when managing their businesses. One particular judge, dissenting against an owner’s claim of exercising religious liberty to deny unmarried couples tenancy to apartments, referred to such a situation as, “engaged in secular commercial conduct performed for profit. There are no religious motivations for their conduct,” meaning that non-religiously affiliated public accommodations have no “legal compulsion” in their religiously based discrimination or refusal of service (Feldblum 107). This particular case could serve as precedent that prohibits businesses serving the general public to deny individuals services based on business owners’ personal beliefs. But within a different perspective, restaurants and other eateries serve as spaces of cultural creation and marked human interaction, so it is equally reasonable to demand that the owners of these establishments have significant power in the shaping of the environment circumscribed there – in many ways these spaces should be and already are reflections of their own personal values. While it is difficult to argue that the personal identity of a restaurant owner (whether such an identity includes religion or not) should be or even can be separated from the restaurant itself, it is also worth noting that as “public accommodations,” food establishments also serve and cultivate the culture of the general society. Thus, the conflict revolves around the question of whether restaurant owners should have to sacrifice their personal belief liberties because eateries that deny service to LGBTQ+ individuals impact the cultural climate for the entire community.
In our efforts to somehow find resolution between LGBTQ+ individuals desiring equality and restaurant owners desiring religious liberty, it seems inevitable that there exists some kind of painful compromise or sacrifice made by each group so the issue is alleviated. In order to bring us closer to a solution, Thomas C. Berg focuses on the commonalities between same-sex equality and religious liberty claims, especially the fundamental desire between both groups to “live out their identities in ways that are public in the sense of being socially apparent and socially acknowledged” (Berg 217). Berg argues that same-sex couples (and all individuals that do not identify as heterosexual) wish to “present [themselves] to others in society”; in a similar way, religious adherents cannot fulfill their own “all-encompassing commitment of belief simply in private worship” (Berg 217). The restaurant’s arena therefore purposes itself as a medium of expression, here specifically in regards to one’s sexual orientation or religious beliefs – refusal of service or inability to demonstrate one’s faith subsequently results in losing the restaurant as this expressive medium.
Many offered solutions to the conflict have been focused around striking a balance between retaining an individual’s sexual and/or religious identities by deconstructing the many conditions in which religious business owners could practice their belief liberty, and therefore reanalyzing the circumstantial definitions of service. One proposed model by Alex Riley exempts religious business owners from unwillingly participating in same-sex weddings (thus excusing bakeries, caterers, and other foodways), but prohibits acts of “blanket discrimination against individuals based on their sexual orientation alone by places of public accommodation” in daily business transactions (Riley 319). This potential compromise is only a partial success in eliminating LGBTQ+ discrimination in public spaces. However, it is still particularly relevant in its acknowledgement of opportunities when religious business owners are able to exercise the right to their core beliefs, specifically when refusing participation in rituals like same-sex marriages, institutions that are in disagreement with owners’ prescribed faiths. This compromise does forbid the day-to-day omission of LGBTQ+ individuals in restaurants and other foodways, which prevents common acts of discrimination in accommodations open to the general community. In this case, legislation would be forced to protect LGBTQ+ individuals in all public settings, but also retain the right of business owners to refuse their services for private events and occasions. Although imperfect, Riley’s proposition allows for a compromise that works to protect the rights of both groups, but more importantly, demands legislation encouraging the LGBTQ+ community’s growing visibility and freedom of everyday identity expression within important spaces of communal and societal culture.
The right to deny service because of religious belief and the issue of being denied service on the basis of sexual orientation can be viewed as a liberty versus equality, identity versus identity, or even liberty versus liberty conflict that is amplified in restaurants and other eateries because they are venues that have substantial power in the cultivation of a group’s visibility and daily expressions of identity. Food establishments can literally and intangibly circumscribe culture; this power can prove fundamental for the business owners who wield it but also dangerous and oppressive to customers that are excluded from the culture created there. Whether exercising one’s religious liberties or not, the capability to refuse LGBTQ+ individuals from restaurant service is problematic not only because it is a hardly justifiable act of discrimination, but also due to the effect of a LGBTQ+ absence from greater community culture, which gradually forms a history that is anything but accurate. Some claim that their beliefs are indivisibly tied to their holistic sense of self, but they only are insomuch as sexual orientation and sexual identity is inseparably part of our total being as well. One’s right to refuse service based on sexual orientation has truly become a permissible sort of discrimination. It simultaneously denies LGBTQ+ individuals their right to live outwardly and freely, while also denying the greater community the privilege of being fuller, more complete, and better off with their presence.
Armstrong, Elizabeth A., and Suzanna M. Crage. “Movements and Memory: The Making of the Stonewall Myth.” American Sociological Review, vol. 71, no. 5, 2006, pp. 724–751.
Berg, Thomas C. “What Same-Sex-Marriage and Religious-Liberty Claims Have in Common.” Northwestern Journal of Law and Social Policy vol. 5.2, 2010, pp. 1-31.
“Equal Protection.” LII / Legal Information Institute, Cornell University Law School, n.d. www.law.cornell.edu/wex/equal_protection
Feldblum, Chai R. “Moral Conflict and Liberty: Gay Rights and Religion.” Georgetown Law Faculty Publications, 2008, pp. 1-66.
Jayaraman, Sarumathi, and Eric Schlosser. “The Hands on Your Plate.” Behind the Kitchen Door. Cornell UP, 2013, pp. 1-18.
NeJaime, Douglas. “Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination.” California Law Review, vol. 100, no. 5, 2012, pp. 1169–1238.
Riley, Alex. “Religious Liberty vs. Discrimination: Striking a Balance When Business Owners Refuse Service to Same-Sex Couples Due to Religious Beliefs.” Southern Illinois University Law Journal, 2016, pp. 1-22.