By Bryan Weese
Recent events involving the Red Hen restaurant in Lexington, Virginia should give everyone pause.
A short summary: Sarah Huckabee Sanders, the president’s press secretary, came to the Red Hen for dinner with her family on June 22. Stephanie Wilkinson, owner of the Red Hen, asked Sanders to leave after the Red Hen’s staff said they felt uncomfortable having Sanders in the restaurant. The Sanders family complied and went elsewhere.
The left approved. The middle shrugged uncomfortably. The right was outraged and retaliated. The Red Hen became the target of negative tweets by the president and efforts to damage its business. The Ren Hen closed down for a few weeks, but re-opened on July 5, with both supporters and detractors making their feelings known, in print and in-person.
Many writers have correctly noted that political affiliation and character are not protected classes under federal law. These classes include race, color, religion or creed, national origin or ancestry, sex, age, physical or mental disability, veteran status, genetic information and citizenship. Given her stated reasons, the Red Hen’s owner was legally permitted to completely deny service to Sanders based upon political and personal affiliations. Many saw the decision as an example of a legal right but a moral wrong (depending, I suppose, on one’s source of moral standard).
Two of the owner’s statements were particularly noteworthy.
• The first statement is an appeal to common morality: “This feels like the moment in our democracy when people have to make uncomfortable actions and decisions to uphold their morals.”
• The second (oft-quoted) statement is an appeal to community standards: “I feel that the restaurant has certain standards that I feel it has to uphold, such as honesty and compassion and cooperation.”
These are nice-sounding words, full of conviction and positivity. They simply don’t have a firm foundation. Feelings change; standards are fluid; morals have been made subjective. Honesty, compassion and cooperation are positive character traits that no one exhibits perfectly. We all miss the moving target established by the Red Hen standard.
As I read the Red Hen news and commentary, I sensed uneasiness – a sense that there was a chink in the Red Hen’s armor, that a community standard of fairness and decency had in fact been violated. I mean, Jesus ate with unscrupulous tax collectors. Is a presidential press secretary even less worthy than these? Even in the Supreme Court gay wedding cake case Masterpiece Cakeshop, the cake maker did not completely deny goods or services to the couple.
Sanders was completely denied service based upon who she is and who she works for. She was not disruptive. She did not start a political discussion. She did not draw attention to herself. A wife and mother trying to have dinner with her family was shown the door because she serves a president some see as divisive (or worse).
How does a restaurant carry a “We Serve Everyone” banner and then completely deny service to Sanders based upon who she is? How does refusing to serve the Sanders family uphold standards of compassion and cooperation? Which of the owner’s moral principles were protected and upheld by this complete denial of service? Just how short of serving “everyone” will the Red Hen fall?
Let’s follow the owner’s position through to its logical conclusion:
• A business offers goods and services to the public.
• A business owner may make subjective moral judgments of its patrons, based upon the owner’s view of a patron’s beliefs, behaviors, associations, political affiliations or other legally permitted factors.
• A business owner may completely deny goods and services to patrons based upon the owner’s ill-defined and fluid moral objections, standards and preferences.
• The business owner may enforce those standards and preferences selectively (e.g., only against patrons the owner disagrees with or dislikes, or at the owner’s whim).
We should all be concerned by this result. Under the Red Hen rule, business owners may selectively enforce self-determined moral codes and community standards so long as those decisions do not relate to federal or state protected status. This means we are all fair game for just about any reason.
It’s easy to see why Red Hen has left everyone uneasy. If a business owner may selectively turn away Republicans or Democrats or independents or moderates or pro-life /pro-choice advocates or adulterers or divorcees or anyone “who has fallen short of the glory of God” or . . . well, you get the idea. If we now approve of excluding people based upon non-protected beliefs, affiliations and behaviors, then the battle lines have truly been drawn. Simple uncivility is now an Uncivil War, and the whole thing is starting to circle the drain.
The Red Hen world sure doesn’t sound much like “We Serve Everyone.” It sounds more like “We serve everyone who agrees with us,” with a side of “Your kind are not welcome here.” Red Hen turns a welcoming invitation into an empty slogan. It gives our divided and conflicted land another excuse to distance ourselves from and punish those who may disagree with us.
This Red Hen leads us down a dark road. Maybe we should leave the chicken following to someone else. •
• Bryan Weese is the chair of the Real Estate Practice Group at Bingham Greenebaum Doll LLP and practices primarily in the area of commercial real estate transactions, focusing on matters involving the acquisition, sale and leasing of improved and unimproved real estate. The opinions expressed are those of the author.