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Experts: Politicians can't legally block Chick-fil-A
Posted on Jul 26, 2012 | by Michael Foust

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Updated Thursday, July 26, 11:01 p.m. Eastern

CHICAGO (BP) -- 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."

Menino and Emanuel backed off their statements Thursday (July 26) -- with each saying they realize they constitutionally cannot block a restaurant from opening -- but the Chicago alderman has not.

Cathy, in two interviews in recent weeks -- including one re-posted on 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. And, there's certainly a double standard. You did not hear a politician threatening to deny permits to companies like Home Depot or Starbucks or Target over those companies' aggressive promotion of the homosexual agenda."

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. On Thursday (July 26) Moreno told WBEZ radio he wants an explicit guarantee from the potential local owners of the restaurant that they won't donate to political causes. But that, too, apparently would be unconstitutional.

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 American Civil Liberties Union (ACLU) -- which supports gay marriage -- also said the politicians' attempts would be unconstitutional.

"If they’re serious about that, and they’re willing to put that in writing and they’re willing to adopt that, I think those are the grounds where we can move forward," Moreno said.

The Los Angeles Times, Chicago Tribune and Boston Globe editorial boards -- normally not sources of traditional beliefs -- have defended Chick-fil-A's right 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."

The Chicago Tribune editorial board wrote, "We're sure there are plenty of businesses in town run by people whose views are offensive to some. It's not up to the mayor or the alderman to decide which opinions are appropriate."

Meanwhile, support for Chick-fil-A continues to grow. Sign-ups for "Chick-fil-A Appreciation Day," launched by Mike Huckabee, surged past 250,000 Thursday (July 26). The event will take place Wednesday, Aug. 1. (More information is available at www.ISupportChickFilA.com.)

Billy Graham also spoke up for the company Thursday.

"I want to express my support for my good friends Truett Cathy and his son Dan Cathy, and for their strong stand for the Christian faith," Graham said in a statement. "I've known their family for many years and have watched them grow Chick-fil-A into one of the best businesses in America while never compromising their values. Chick-fil-A serves each of its customers with excellence, and treats everyone like a neighbor. It's easy to see why Chick-fil-A has become so popular across America.

"Each generation faces different issues and challenges, but our standard must always be measured by God's word. I appreciate the Cathy family's public support for God's definition of marriage."

Graham added, "I also appreciate Governor Mike Huckabee's leadership and for encouraging Americans to support Chick-fil-A on August 1. As the son of a dairy farmer who milked many a cow, I plan to 'Eat Mor Chikin' and show my support by visiting Chick-fil-A next Wednesday."

Huckabee has said Chick-fil-A deserves support.

"Let's affirm a business that operates on Christian principles and whose executives are willing to take a stand for the Godly values we espouse by simply showing up and eating at Chick-Fil-A on Wednesday, August 1," he wrote on Facebook. "Too often, those on the left make corporate statements to show support for same sex marriage, abortion, or profanity, but if Christians affirm traditional values, we're considered homophobic, fundamentalists, hate-mongers, and intolerant. This effort is not being launched by the Chick Fil-A company and no one from the company or family is involved in proposing or promoting it."

"There's no need for anyone to be angry or engage in a verbal battle," Huckabee added. "Simply affirm appreciation for a company run by Christian principles by showing up on Wednesday, August 1 or by participating online -- tweeting your support or sending a message on Facebook."
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Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
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