John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware. Follow him on Twitter.

A case involving the owner of Geno’s Steaks shows that the compromise between religious liberty and non-discrimination laws is hiding in plain sight, in the right to free speech. Business owners should be free to express their religious beliefs, and their preference to not serve gays, but should not be allowed to actually deny service.

In answer to a hypothetical question raised during the Religious Freedom Restoration Act debacle in Indiana, Crystal O’Connor of Memories Pizza stated that she wouldn’t deliver pizzas to a gay wedding. Partisans reacted in dismally predictable ways. The O’Connors were subjected to nasty comments—apparently including death threats—from one side; on the other, a crowd-funding effort raised more than $800,000 for the O’Connors, who’d been intimidated into temporarily closing up shop.


But what if she’d instead said something like this: “We welcome all customers, including members of the LGBT community. But we do have a strong religious objection to same-sex marriages, and we’d hope that anyone thinking of using our shop to cater their wedding would take that into consideration in making their decision.”

See the difference? In the actual case, O’Connor announced that she’d discriminate. That’s illegal in states that offer LGBT protection in places of public accommodation, and should be barred in the Hoosier State, too (although, outside of a few cities, this kind of discrimination is still permitted despite the recent “fix” to the law). But the second, entirely made-up statement is simply a proclamation of belief, however offensive to however many people. It’s therefore protected under a guarantee of the First Amendment—freedom of speech—that’s just as central as the protection for freedom of religion.

This distinction between belief and action snapped into sharp focus in the mid-aughts in Philly. Joey Vento, the owner of Geno’s Steaks, didn’t like illegal immigrants—and especially didn’t like that the area around his South Philadelphia establishment had recently become populated by Spanish speakers. So in 2006, he slapped a sign on the window where orders are placed: “THIS IS AMERICA. WHEN ORDERING, PLEASE SPEAK ENGLISH.”

Just as in the Memories Pizza case, outrage and counter-outrage ensued. By some accounts, business actually picked up at Geno’s as a result of the publicity caused by Vento’s venting. (Vento himself said that his business was booming before he posted the sign—Philadelphians do love their cheesesteaks.) And those who were offended simply walked across the street to Geno’s biggest competitor, Pat’s King of Steaks, or perhaps underwent an overdue angioplasty.

Vento was hauled before the Philadelphia Commission on Human Relations, and charged with discrimination against non-English speakers. He won, because there was no proof that Geno’s actually refused service to anyone who didn’t speak English. (According to Mary Catherine Roper of the ACLU, many “testers” had been sent to the joint to see whether they’d be refused service; they weren’t.) In effect, the Commission vindicated Vento’s argument that he was making a protected political statement, however crude and nasty.

So, announcing distaste for certain clientele is protected, but actually denying those same customers service isn’t. To stay in the clear, business owners can follow a simple rule: “say it, don’t do it.” An owner of a B&B isn’t comfortable with same-sex couples honeymooning at his establishment? Post something like this on the website: “The Fusty Inn Specializes in Traditional Weddings!” Most same-sex couples will avoid the place like the plague—though they needn’t do so—and so will many liberal opposite-sex ones. Others will be attracted like iron filings to Magneto.

However uneasy this sort of possibly preclusive announcement makes you feel, the kind of market segmentation it creates is nothing new. We all make decisions about which businesses to patronize and to avoid, and sometimes these are based on the owner’s politics. (That’s why I avoid Walmart.)

One objection to the “say it, don’t do it” proposal is that some will skate close to the political views/discrimination line, as Vento did. One way to avoid that is for lawmakers—legislators and possibly judges—to set forth “safe harbor” language that business owners might use to express their beliefs without trenching on their customers’ right to be served. Otherwise, a sufficiently pointed remark might have the same effect as a barred door.

This simple fix has another virtue: It’s much better than the proposals to carve out exceptions to non-discrimination laws for services relating to weddings. This kind of provision, long championed by a few legal scholars, is anchored in a seemingly reasonable premise: Some people are happy to serve LGBT customers, but feel that their religion counsels them to draw a line at approval of same-sex unions.

Charley Sullivan did a nice job of deconstructing that dichotomy, but the distinction is real for some folks. That’s why Crystal O’Connor was able to say, in the same breath, that her business was “not discriminating against anyone” and that she wouldn’t provide pizza for a gay wedding. But discrimination is discrimination, no matter the context, and the “say it, don’t do it” approach recognizes the importance of the state’s commitment to equality while making room for religious expression.

And the “wedding exception” approach is a fool’s errand, anyway. To see why, consider this email exchange I had a few years ago with Robin Fretwell Wilson, who has been championing this approach for some time now. I was testing the reach of the exception:

Me: A man walks into a florist’s shop to buy some flowers for a wedding. The owner who’s working there shows him some appropriate flowers and wraps them up. The man then says: “Write on the card: ‘To the Gayest Couple I Know: Ted and Fred.”May the owner then refuse the sale on religious grounds?

RFW: I would say if the flowers are for Ted and Fred’s wedding, then yes, the florist could refuse if state law allowed him or her to, as I have argued it should….If the flowers are not for Ted and Fred’s wedding, then no, the florist would not be permitted to refuse to sell them. Here it would have significance to me that the flowers are not to be carried by a wedding party member or used in the wedding or reception, neither were they requested by or on behalf of the couple for the wedding

See what’s happening here? At first, Wilson says that if the flowers are for the wedding, refusal to sell is proper. But then that it “would have significance” to her that the flowers were intended as a gift, and not to be used in any of the ways she lists, which are (I guess?) more central to the ceremony itself. When the person proposing the exception can’t clearly decide when it applies, alarm bells should sound.

We could easily multiply the complexities. What if the flowers are to be used in a recommitment ceremony, five years later? Might that not be as objectionable to the owner’s religion as the wedding itself? And if these laws would cover that situation, how much further would they extend? Do we really want courts sorting through this wreckage after the fact?

“Say it, don’t do it” has another virtue that the recent nastiness in Indiana should make especially appealing: It allows the possibility for communication between the two sides, a possibility closed off when the owner can keep the gays out entirely. The focus shifts to the economic and social spaces that can then be occupied, perhaps fitfully at first, by both sides. Then, perhaps, a civil conversation can begin.

The author would like to thank Mary Catherine Roper, Deputy Legal Director at the ACLU of Pennsylvania’s Philadelphia Office, for insights on the Vento case.