Mayor Menino, Chick-fil-A and the First Amendment

There may be more to say later, but I want to offer a few quick thoughts on Mayor Tom Menino’s declaration that he intends to keep Chick-fil-A out of Boston because of the company president’s opposition to same-sex marriage, as reported by Greg Turner of the Boston Herald.

Chick-fil-A has long been at odds with the LGBT community. But things got a lot worse this week, when company president Dan Cathy said, according to the Washington Post, that “we’re inviting God’s judgment on our nation when we shake our fist at him and say we know better than you as to what constitutes a marriage.”

That brought this response from Menino: “Chick-fil-A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”

My gut reaction is that Menino is wrong. It seems to me that there wouldn’t be any end to this if government officials decided to approve or reject business licenses on the basis of their executives’ religious or political beliefs. There are First Amendment issues at stake as well. Can’t the head of a company say what he thinks without risking the wrath of the government?

Starbucks, as you no doubt know, has earned a lot of praise for its support of gay civil rights. There are plenty of municipalities out there whose officials might be tempted to deny Starbucks the right to operate inside their borders. And they could point to Menino for support.

Earlier this year my employer, Northeastern University, disinvited Chick-fil-A from opening in the student center after a number of people protested. I was among those who signed an online petition asking to keep Chick-fil-A off campus. But I see a huge difference between voluntarily inviting a business to operate on your private property, as would have been the case at Northeastern, and acting to keep a business off someone else’s private property, as Menino proposes to do.

Chick-fil-A has a serious issue on its hands, and it may well have to do some damage control that goes beyond the cosmetic. The San Jose Mercury News reports that residents in Mountain View, Calif., want to keep the chain out of their community. And we can expect to see a lot more of that.

Menino actually missed his best argument for keeping Chick-fil-A out. Restaurant executives apparently want to open in a tourist-heavy area along the Freedom Trail. If I were doling out food licenses in Boston, I would be very reluctant to hand over such a prime location to a business that is closed on Sundays.

Photo via Wikimedia Commons.

20 thoughts on “Mayor Menino, Chick-fil-A and the First Amendment

  1. L.K. Collins

    Off topic Dan, but since you are being “fair and balanced” these days, would you care to comment on Brian Ross’ gaffe this morning alleging that Aurora, CO shooter was a Tea Party member?

    After all, isn’t this the sort of topic what a media critique should be dealing with?

  2. James Craven

    As the adage says, go with your first (or gut) reaction. No goverment entity has no right to keep someone out because of their religious beliefs. We saw an example of this recently when there was a great deal of concern about the planned building of a mosque near the former site of the World Trade Center. The choice of not visiting the named restaurant must rest with the consumer, not the goverment.

  3. Rob Bertsche

    My view, informed by the First Amendment: The city shouldn’t (can’t) block Chick-fil-A (silly name and all) from Boston based on its president’s benighted beliefs. But that doesn’t stop the rest of us from setting up a permanent protest line across its entryway.

  4. Mayor Menino hasn’t got a legal leg to stand on. If Chick-Fil-A sues, they would win..

    The Commerce Clause specifically prohibits this kind of stance. Additionally, Could Menino then refuse Licenses be denied companies who oppose Abortion? Belong to the NRA?

    How come Mr.Menino doesn’t go after the Catholic Church? The are openly Anti: Gay, Civil Unions, Gay Marriage, Abortions, recreational Sex, Birth Control, Women in the Church and as WE all know think nothing of molesting children and protecting those doing it…by the thousands.

    Seriously a Chicken Sandwich Shop Chain?

  5. Mike Rice

    After reading this article I’m wondering if commercial insurance policies issued in the open city of Boston cover “The Wrath Of God.”

  6. Mike Rice

    …and perhaps the Archdiocese of Boston should check with their insurance agent to see if they’re covered for wrathfulness should it come their way.

  7. Matt Kelly

    For all of Chick-Fil-A’s hateful comments, substitute the word ‘blacks’ for ‘gays’ and then see if you still oppose Menino for telling this shameful business to go elsewhere. Instead of talking about a restaurant space and gays, imagine an office space and the Klan. Nobody would be taking issue with this.

    Chick-Fil-A has embraced a culture of opposing and persecuting a particular segment of society, and Menino is using his powers to send them elsewhere. Our laws and our social mores here are much more tolerant and he’s upholding them. I have no problem with what he’s doing.

    But, along Dan’s lines, the better argument would be that replacing a full service bar & restaurant with a fast-food joint closed on Sundays is short-sighted. It will lead to lower employment and tax revenues and isn’t in the best interests of the city. That we also could send a homophobe packing back to Atlanta is just a bonus.

  8. Pingback: What if Chick-fil-A wanted to open in Newton? | Village 14

  9. C.E. Stead

    LK – Dan actually IS pretty fair and balanced. I (and you) may not agree with his conclusions, but it isn’t like he doesn’t CONSIDER both sides.

    Matt – the argument is not relevant. The law pertains to SERVICE of groups, and AFAIK no gay person has been denied service as a customer at the restaurant. An office building rented by the KKK would not only be legal, it would be protected under Federal law. Just ask the ACLU. YOU may not have a problem with what he’s doing, but he is placing the city in legal danger for no other reason that political showboating.

    DK – not sure if NU is considered ‘private’ property – and have they made an assessment of the personal opinions of OTHER retail franchises? Do they announce what opinions you must hold in order to do business with them? What class of vendors does that extend to?

    1. Dan Kennedy

      @C.E.: I think an indoor space in the student center of a private university would be considered private property. But even if it’s not, I’m mainly hanging my argument on the difference between inviting Chick-fil-A to set up shop versus deliberately excluding them. Every business on campus is essentially in a partnership with the university, and no one can be forced into a partnership.

      At the time the CFA issue was being debated on campus, we discussed it in my media-law class. I said at the time — I swear this really happened — that if Chick-fil-A wanted to open on Huntington Ave., right off campus, I’d have no objection. I still don’t.

  10. This isn’t just a judgment based on someone’s religious beliefs. It’s also not judging the company based on the views of the CEO.
    Cathy made it clear that he was expressing his views as the company and that he considered them to be part of the “bibical” principles that the company is run by.
    If this was about them being closed on sunday that would be an attack on their religious expression. They have every right to practice their religion and run their company with those views in mind.
    What Menino is responding to is Cathy’s attack on other people’s freedoms, and rights to define marriage.
    “I think we are inviting God’s judgment on our nation when we shake our fist at Him and say, ‘We know better than you as to what constitutes a marriage,’ and I pray God’s mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to define what marriage is about,”
    While it may not be clear cut, communities have the right to reject companies that are hateful towards their residents. Chick-fil-A is being told that they aren’t welcome not because of their views but because they don’t believe that other’s should have the right to opposing views.

    1. Dan Kennedy

      @Ben: Obviously I disagree with your larger point, so no need to repeat myself. But I disagree with your smaller point as well. The whole point of having licensing procedures is to make sure the public interest is being served. Thus the city may very well be free to require that any restaurant occupying that high-traffic tourist area be open for business on Sundays.

  11. Well at the very least it’s important to note that this is not rejection “on the basis of their executives’ religious or political beliefs.”. It is on the beliefs and practices of the company.
    Cathy’s remarks weren’t some opinion piece and he did not distance his views from the views of the company. If he had this would be an entirely different situation.

  12. Kevin Gilnack

    Here are the problems I have with this discussion:

    1) Dan and other commenters assume there is equal merit between inclusiveness and bigotry.

    2) That the freedom to practice and espouse religious beliefs comes without consequence.

    “There are plenty of municipalities out there whose officials might be tempted to deny Starbucks the right to operate inside their borders. And they could point to Menino for support.”

    Whatever role Menino could play in stymieing their license due to their homophobic agenda only reinforces the idea that Boston welcomes businesses who are inclusive. It does not magically give mayors the right to encourage businesses that discriminate or discourage those that don’t. To compare those instances with what Menino is doing implies that the idea of blocking a gay-friendly establishment is just as meritorious as blocking one that’s homophobic.

    In addition to freedom of religion and speech, we are also entitled to equal protection under the law. If you believe people who are gay deserve the same rights as everyone else, there shouldn’t be any question that comparing CFA to Starbucks is a false analogy.

    Freedom of speech and religion come with responsibility. Practice whatever you want at your place of worship, in your home, or in your community. But when you make public statements and are identified as the leader of an organization, your freedom of religion doesn’t absolve your bigoted views.

    As Dan notes, “The whole point of having licensing procedures is to make sure the public interest is being served” and if through that process, Mayor Menino and the city determine allowing a CFA in Boston doesn’t serve the public interest – whether in whole or in part because of the public statements their CEO has made – that’s what the process is therefore. Does someone think there is a public interest in having an organization led by a hatemonger in Boston does serve a public interest when there are plenty of other fast food chains, bars, restaurants, retailers, coffee shops, etc., etc. who could use that space?

    Whether it’s CFA or birth control, I’m very concerned about the way our public discourse over equality gets railroaded by claims of religious intolerance. Bigotry is not equal to discrimination, even if you can find rationalizations for it in the Bible, Quran, Torah, Book of Mormon or anywhere else.

    I believe that BC is an essential part of a health insurance plan for women, no matter who their employer is or how much their employer might be morally opposed to it. I believe gays should have equal rights and that we shouldn’t support companies who are opposed to that.

    Yet who gets portrayed as the victims? The poor CEO’s who choose to take their personal religious beliefs into the public square.

    Government can’t stop you from holding those beliefs or talking about them, but your religious freedom doesn’t mean that government has to ignore them, or that your beliefs don’t harm public interest.

    1. Dan Kennedy

      @Kevin: Earlier today, @C.E. Stead nailed it. Chick-fil-A has no right to discriminate on the basis of race, gender, sexual orientation or anything else. If your local Chick-fil-A refused to serve two men who were holding hands, then government officials could shut the place down — and should. On the other hand, our system demands that Chick-fil-A’s executives have the right to think, say and write what they please.

  13. L.K. Collins

    “If your local Chick-fil-A refused to serve two men who were holding hands, then government officials could shut the place down — and should.”

    Sorry, Dan, there is no legal way to “shut them down” for refusing to serve one.

    You can make it expensive for them to operate, but government does not have the power to do what you are suggesting.

    You’re channeling your inner Vladimir Putin and/or Hugo Chavez.

    Perhaps you should speak to your friend Attorney Silvergate before you make such statements.

Comments are closed.