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Fair or Fowl? Big City Mayors Want You to "Eat Les Chikin"

Posted By John G. Malcolm On July 27, 2012 @ 10:13 am In Legal | Comments Disabled

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Same-sex marriage is a hot-button issue that divides the country and arouses passions on both sides. Dan Cathy, the president of Chick-fil-A, in a recent interview with the Baptist Press responded to a question about opposition toward his support of the traditional family that he was “guilty as charged.” Cathy continued, “We are very much supportive of the family—the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that.”

This was too much for Boston’s Mayor Thomas Menino, who announced that Chick-fil-A was not welcome in his fair city and that, “If they need licenses in the city, it will be very difficult – unless they open up their policies.” In a letter to Mr. Cathy, Menino wrote, “[t]here is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.” When subsequently pressed by a reporter, he stated, “I think businesses should be neutral on [the same-sex marriage issue]. They should be selling chicken.” Does anybody believe that if a prospective store owner had publicly announced that he favored same-sex marriage, Mayor Menino would have said, “Shut up and sell chicken”?

Not to be outdone, Chicago Alderman Proco “Joe” Moreno announced: “Because of [Cathy’s] ignorance, I will now be denying Chick-fil-A’s permit to open a restaurant in the 1st Ward.” In the Windy City, they have a quaint little tradition called the aldermanic privilege in which City Council members defer to the opinion of the ward alderman on local issues.Moreno said he would not change his view until Chick-fil-A does “a complete 180,” including issuing a public apology from Cathy.

Shortly thereafter, Mayor Rahm Emanuel chimed in that “Chick-fil-A’s values are not Chicago values.…And if you’re gonna be part of the Chicago community, you should reflect Chicago values.” A spokeswoman later clarified, though, that Emanuel “did not say that he would block or play any role in the company opening a new business” in Chicago.

While a government official may deny a business permit (or take any number of other official actions) for non-discriminatory, relevant reasons, he may not do so because he doesn’t like things that the applicant has said. In Board of County Commissioners v. Umbehr (1996), the Supreme Court held that the First Amendment’s guarantee of freedom of speech prevented the Board from terminating its contract with Umbehr solely because he had said critical things about the Board. Speaking for the majority, Justice O’Connor stated:

Recognizing that constitutional violations may arise from the deterrent, or “chilling,” effect of governmental efforts that fall short of a direct prohibition against the exercise of First Amendment rights, our modern “unconstitutional conditions” doctrine holds that the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even if he has no entitlement to that benefit.

If individuals choose to boycott Chick-fil-A or express their outrage, that is their right. Private individuals, unlike government officials acting in their official capacity, can engage in all sorts of viewpoint discrimination. Similarly, if Chick-fil-A violates any federal or state anti-discrimination laws in its hiring or serving decisions, it can expect to suffer the consequences.

However, unless and until that happens, the owners of Chick-fil-A are well within their rights to say what they want and to put into effect their professed desire to operate Chick-fil-A based “on biblical principles.” Fortunately, Mayor Menino now appears to have backed off his initial stance, thereby indicating that perhaps there is a place for freedom of speech on Freedom Trail. Let’s hope that Chicago follows suit soon.

As Sir Winston Churchill once stated, “Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people’s idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.”

The power that government officials have when it comes to regulating businesses (and individuals, for that matter) is great, and the danger that those officials will pick winners and losers of the government’s largesse based on who the applicant supports or what the applicant believes, rather than on the merits of the application itself, is high. Let’s hope that cooler heads, and the First Amendment values that we all hold dear, prevail.


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