Attempts by Chicago and Boston politicians to block the opening of Chick-fil-A restaurants because of the company president's views on marriage would be unconstitutional and also set a dangerous precedent for other businesses, say several attorneys.
Boston Mayor Thomas Menino and Chicago Mayor Rahm Emanuel each have been quoted as saying they want to prevent Chick-fil-As from opening in their cities, with Menino declaring in a letter to Chick-fil-A President Dan Cathy, "There is no place for discrimination on Boston's Freedom Trail and no place for your company alongside it." The Freedom Trail is a path through the city's streets highlighting historic buildings. Emanuel voiced agreement with a Chicago alderman who also opposes a new Chick-fil-A, saying of the company, "They disrespect our fellow neighbors and residents."
Cathy, in two interviews in recent weeks—including onere-postedon Baptist Press—has said he believes in the biblical definition of marriage. The company issued a statement saying it treats every customer with "honor, dignity and respect" and that, "going forward," it is going to stay out of the gay marriage debate.
David Cortman, an attorney with the legal group Alliance Defending Freedom (ADF), said a restaurant cannot be blocked from opening because of the restaurant's or the owner's beliefs.
"It absolutely is not constitutional," Cortman told Baptist Press. "And I think the irony here is that they are claiming this is an issue of freedom and civil rights, but they're actually the ones who would be violating the civil rights of Chick-fil-A not to allow them to open up their business simply because of their views."
But the issue concerns more than just Chick-fil-A, Cortman said, and impacts any business or organization in America whose owners hold views different from that of the government. Boston and Chicago would be practicing viewpoint discrimination—a violation of the Constitution's Free Speech clause, Cortman said.
"It does create both a dangerous and an illegal precedent," Cortman. "The government shouldn't be in the business of threatening or punishing people for their thoughts or ideas—whether they are individuals or businesses themselves.
Mat Staver, president of the legal group Liberty Counsel, said he, too, believes the attempts would be unconstitutional.
"No city can ban Chick-fil-A because the [company] president has his own view regarding marriage—a view that is held by much of the American public," Staver told Fox News. "To discriminate against Mr. Cathy because of his biblical view and then to extrapolate that to Chick-fil-A is illegal. It would be unconstitutional and certainly any city trying to do so would not win that battle."
Eugene Volokh, a law professor at UCLA, wrote on his blog, "Denying a private business permits because of such speech by its owner is a blatant First Amendment violation."
The Chicago alderman who initially spoke up against Chick-fil-A, Joe Moreno, told local media he might simply block a proposed new Chick-fil-A in his ward because of traffic concerns. Moreno, though, previously said he opposed a new Chick-fil-A because it was "intolerant" and because he disagreed with Cathy.
Cortman, the ADF attorney, said Moreno won't legally be able to use a legitimate reason—traffic concerns—as cover for his previous comments.
"His true motivations already have been made public, so I think any attempt to backtrack to create what normally would be a legitimate reason wouldn't work in this situation," Cortman said.
The Los Angeles Times and Boston Globe editorial boards—normally not sources of traditional beliefs—have defended Chick-fil-A's ability to open restaurants.
"Which part of the First Amendment does Menino not understand?" a Globe editorial read July 25. "A business owner's political or religious beliefs should not be a test for the worthiness of his or her application for a business license."
Christianity Today previously covered support for Chick-fil-A from people like Billy Graham, Mike Huckabee, Focus on the Family's Jim Daly, and Southwestern Baptist Theological Seminary. Michael Foust is associate editor of Baptist Press, where this piece originally ran.