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Why the Chick-fil-A Controversy Raises Tough Questions About Government Power to Regulate Business Based on Owners’ Political Spending

Recently, mayors and other politicians in Boston, Chicago, San Francisco, and elsewhere drew criticism for their comments suggesting that they would consider imposing legal obstacles to the expansion of the Chick-fil-A restaurant chain in retaliation for the anti-same-sex-marriage statements of the chain’s president, Dan Cathy.  As law professors Nathan Oman and Eugene Volokh each independently observed, the First Amendment to the U.S. Constitution forbids government officials from discriminating against a person or business based on the viewpoints expressed by the person or by a representative of the business.

I agree with the analyses of Oman and Volokh, given the facts as they appear.  Nonetheless, as I shall explain in this column, the Chick-fil-A controversy raises a question that will often prove vexing, because the speech of businesses and their representatives can be a legitimate concern of local government for two main reasons:  First, speech manifesting bias may hint at illegal conduct manifesting the same bias; and second, in many circumstances private speech may implicate the government itself.

The Controversy

Gay-rights supporters have noted that over the last several years, the privately held business Chick-fil-A donated millions of dollars to organizations that oppose same-sex marriage and other gay rights.  Although the company has denied that it is anti-gay, last month its president, Cathy, stated publicly that his company supports “the Biblical definition of the family unit” and that he prays for “God’s mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to try to redefine what marriage is about.”

Private citizens who disagreed with Cathy organized boycotts of Chick-fil-A.  In addition, a number of local politicians around the country entered the fray by warning that Cathy’s remarks could cost the company should it apply for such legal necessities as building permits or restaurant licenses.  Chicago Alderman Joe Moreno went the farthest, flatly announcing, “I will deny Chick-fil-A a permit to open a restaurant in my ward.”

Criticism ensued from the likes of Oman, Volokh, and the American Civil Liberties Union.  Private customers are entitled to withhold their business from a company based on their opposition to the company’s politically contentious speech, but the Constitution forbids government officials from denying licenses and other benefits on the basis of such speech, the critics noted.  In response, some of the politicians backed down.

The critics, after all, were right.  There are plenty of good reasons for an individual to avoid patronizing Chick-fil-A—not just the company’s opposition to equality for LGBT humans, but also the plight of the chickens whose slaughtered flesh Chick-fil-A laughingly sells.  But for government, motivation matters.  For a government entity to deny Chick-fil-A a license for no other reason than its president’s speech—no matter how distasteful that speech may be—would clearly violate the First Amendment.

That said, civil libertarians should think twice before championing Chick-fil-A’s cause in all contexts.  For while a case of clear-cut retaliation by a government official or entity against Chick-fil-A would violate the First Amendment, there remains a considerable gray area in the applicable law.

Using Speech as Evidence of Conduct

Although federal law does not forbid discrimination on the basis of sexual orientation by private firms, in many places state or local law does.  Of course, it is possible for the leadership of a firm to oppose same-sex marriage and simultaneously comply with such anti-discrimination laws.  And indeed, a recent posting on Chick-fil-A’s website states that the company “treat[s] every person with honor, dignity and respect—regardless of their . . . sexual orientation.”

Nonetheless, it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws.  After all, as I have argued at length in a recent academic paper, laws forbidding same-sex marriage can reasonably be understood as conveying a pernicious social meaning—suggesting that LGBT Americans are merely entitled to second-class citizenship.  Granted, it would not be fair to conclude that a firm that opposes same-sex marriage also discriminates on the basis of sexual orientation in employment or public accommodations, but it would be fair to investigate that possibility on such grounds.  Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.

Moreover, Chick-fil-A’s past political contributions have gone not only to organizations that simply oppose same-sex marriage but also to ones that oppose homosexuality itself.  For example, according to the Equality Matters report linked above, Chick-fil-A’s charitable arm has supported Exodus International, a controversial ministry that offers assistance to LGBT persons seeking a “way out” from homosexuality.

Again, it is possible that despite Chick-fil-A’s support for Exodus, the firm does not discriminate on the basis of sexual orientation at all—not even in jurisdictions where such discrimination is legal.  But for government officials with limited resources, it would not be unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination somewhat more closely than the parallel claims of, say, Joe’s Gay Bar & Grill.

Government’s Implication in Private Speech

In addition, in some contexts government officials may have legitimate reasons to worry that private messages will be attributed to the government.  Suppose, for example, that the federal government wishes to rent space to a fast-food restaurant in a food court on a military base.  In light of the recent repeal of the Don’t-Ask-Don’t-Tell law, and the ongoing efforts by the military to make gay and lesbian service members feel comfortable serving openly, we could expect the officials charged with renting space to worry about the public association of Chick-fil-A with anti-gay sentiment.  Would gay and lesbian service members feel devalued by the decision to open the Chick-fil-A?  Would the restaurant’s presence be divisive, leading some members to boycott it, and others to patronize it specifically for the purpose of taking a stand on gay rights issues (much as some conservative politicians already have)?  One could well imagine a base commandant opting for a KFC or Subway, rather than a Chick-fil-A, simply to avoid the attendant headaches.

To be sure, in light of military discipline, the base commander need not worry about protests in front of the Chick-fil-A.  But given judicial precedents extending deference to decisions taken by military leaders, the courts might well accept any decision that the hypothetical base commandant took.

What about civilian life, though?  Does the same analysis apply?

Consider a proposed Chick-fil-A in a government office building or public park. In the 2009 case of Pleasant Grove City v. Summum, the Supreme Court held that the First Amendment allowed the government of a Utah municipality to deny permission to a private organization to erect a permanent monument in a city park.  Why?  In a nutshell, because the government would necessarily be implicated in the message that the monument conveyed.  While the government would seemingly be less implicated in any message conveyed by a restaurant operating in a public park, the difference seems more one of degree than of kind.

Is there a difference in kind between, on one hand, the government granting or withholding access to government property—as in my military base and public park examples—and, on the other hand—the government restricting who may have access to private property—as in the action that Alderman Moreno threatened to take against Chick-fil-A?  Professor Volokh thinks so.  He cites the 1991 Supreme Court case of Rust v. Sullivan in making the point that the “power of the government to control its own speech is far removed from the government’s attempt . . . to retaliate against businesses for their owners’ speech.”

That may be right in theory, but in practice it can be difficult to draw clear lines between government’s own speech and private speech.  I know, because as a third-year law student, I assisted in the writing of the brief for the ultimately unsuccessful doctors in the Rust case.  We argued that despite working in practices that received government funds, the doctors remained private speakers, entitled to control their own messages.  We lost, just as the plaintiff in Summum lost in its bid to claim that its message was private.

Indeed, the category of “government speech” has expanded over the years as courts have recognized that in a pervasively regulated market, very few decisions are purely “private.”  Seen in this light, Alderman Moreno’s threat to withhold a permit expressly in retaliation for speech may be the exceptional case of punishing private speech, with muddy mixtures of private and government speech and conduct being more common.

None of this is to say that government officials should have broad license to discriminate among businesses based on the speech of their owners, or even based on the anticipated response of the public to such speech.  Down that road lies a real concern about the “heckler’s veto”—with zoning boards denying building permits or variances to the likes of Planned Parenthood based on the fear of protesters disturbing a quiet neighborhood.

My point is simply this: We should not be misled by the clear unconstitutionality of the proposed (and now abandoned) plans to deny Chick-fil-A its permits in retaliation for speech.  That is a rare real-world case that exhibits the clarity of a law school classroom hypothetical example.  For the most part, however, the real world serves up harder cases, in which more complex constitutional analysis is needed.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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  • Fried Dead Chicken

    I love Dead Chicken

  • Choke -UR- Chicken

    The only reason chic-fil-a is successful is the fact that they operate in that part of the U.S. that lacks Diners and good Restaurants . Their only competition is Zaxbys and KFC, Both places I totaly avoid due to the Fried food , the Salad sucks, I can get better salad in the supermarket . P.S. Publix supermarket has better Chicken.

  • K3HY

    Everyone knew where Chic-Fil-A stood for years.
    Why has their management all of a sudden went to the media with what is common knowledge?
    So the straights and the gays will go to Chic-Fil-A and demand to be served.
    Chic-Fil-A wins and those who couldn’t see through their advertising gimmick lose.

  • Steve

    The answer to the questions is a simple one. Why do you need the government to come in and parent when its the consumers who control the cash anyway? If you don’t want chick-fil-a in your town boycott it and raise awareness, until it is no longer profitable for them to stay.

  • Ted

    How is it even a question, let alone a tough one, of whether the government should regulate this stuff. On the most basic level, if it’s legal to keep a business out of a city because of the owner’s anti-gay-marriage views, that is precedent for a more conservative city to keep out the pro-gay-marriage business. And the anti-abortioners, and the Pro-abortioners, and the anti-war, and the pro-war and so on and so on until the government has power to control speech in which ever way they fancy through denying business permits.

  • toneii

    The topic is not just gay marriage, but also divorce. Dan Cathy said “we’re all married to our first wives”. Therefore, Divorced people or the children of divorced parents do not meet his Chik-Fil-A’s definition of a Biblical family.

  • JGabby

    Well this is hard to comment on, God gives us all a free will to do as we choose, if you choose to be gay, so be it, if you choose to be straight, so be it. It is really no body else”s business which you choose. People are putting labels on people when they should not. I like this saying, Do not judge lest ye be judge. I have never eaten at Chick-fil-a, so I cannot say that I ever would eat there, but it is not because of their stand, their donations or their food, I just do not go there. I do think the Government is going way over board with alot of things, they are telling us Americans what we can and cannot do, a little too much. I feel the Cathy”s have a right to their opinion just as anyone else does. And the government has to right to deny their restaurant access to any military base. I myself am just trying to live the best life I can, trying not to judge anyone for their words or choices in life, Life is to short to sit and worry about all these things. I hold nothing against anyone because of a choice they made unless it affects me.

  • http://www.facebook.com/frankjohnkelly John Kelly

    Who cares? It’s his life and his money. He’s free to do whatever he wants with them. It’s not going to make his stores’ chicken biscuits taste any less delicious. And, it’s disgusting our polititians would try to slow down his business growth over his opinions.

  • Wendy

    How many problems would there be if all businesses were subject to such scrutiny as Chick Filet has been? I’m thinking that there are many cases of discrimination against other people groups that go unmentioned (military, black, Christian, Jewish, etc,) but Chick Filet gets the trouble because of the fact that homosexuality has become the current hot button issue.

  • David30303

    So, if you can’t censor them with the law, do it with the bureacratcy!

  • SCOATS

    Interesting column. I would agree that a political response threatening unconstitutional action against someone simply stating their beliefs is indeed a slipperly slope. Imagine if this was deemed “acceptable” and somewhat of a precedent moving forward. If I were in political office and denied a pro-LGBT company a permit to operate in my district, would the same issue arise? I get frustrated reading about this garbage. Who dictates what is an acceptable cause to support or disapprove of?

  • trssmith

    The bigger question is why do we care? If you believe in the witchcraft of religion fine, go spend your money there. If you are sane and don’t like their witchcraft belief, don’t!

    With all the real issues out there we keep rearranging the deck chairs on the Titanic.

  • Col.Sanders

    Maybe Mr. Cathy’s position will “evolve” someday like Mr. Obama’s …

  • CAROLY1

    WHAT ABOUT STARBUCKS!! They are for gay marriage!! Do you see the otherside throwing a scene worldwide…..and getting stupid!! Chick fi la is just doing business as they are privedged to do in this country!! I don’t agree with Starbuck’s point of view on gay marriage but I still order latte’s there! Grow up!

    • mrbill

      THANKYOU

  • CAROLY1

    QUINN should be kicked out of office for that display of action! Trying to dictate in HER city, no one elses???

  • http://www.facebook.com/people/Anders-Swanson/1428604855 Anders Swanson

    Great article!

  • JannaM

    It doesn’t raise any questions whatsoever, except… “What the hell are those mayors and other politicians thinking”? This is America. You don’t get to block a business because you don’t like where they donate their money to. The ‘people’ get to do that through the form of either patronage of that establishment or the boycott of it.

    These ‘politicians’ leave a disgusting taste in my mouth.

  • Matt Chaucer

    You should be ready for a workout after all that stretching. Especially when there were more direct ways to your point

  • orthotox

    Spare us the fine print, pal. The opening paragraph says it all, These pols are way out of line and soon they’ll be out of office as well.

  • Joe

    For five minutes, let’s think bigger and open up the discussion to religion. Forget about U.S. First Amendment which is created by and for humans to manage other humans. If you believe in the scriptures which is the word of God, homosexuality is not supported. As a believer, do you believe in God’s rules or man-made rules? First Amendment expires when you die; how about eternity?

    A second point (dependent on your religious belief), you are called upon to love “everyone” as brothers and sisters. You are called to love gays, bullies, murders, enemies, and even someone like Hitler. Yes, it is humanly impossible, but it’s a religious minded goal. So the second point makes it very clear not only don’t discriminate, but to actually try to love everyone no matter what. Okay, my five minutes is up.

  • K3HY

    The gays will go to Chic-Fil-A and pay for their food.
    The straights will go to Chic-Fil-A and pay for their food.
    Chic-Fil-A cleverly makes out like a bandit with all the free publicity.

  • Sderf13

    Should we try to kill Amazon because they spent millions to promote gay rights???????

  • Charles Obryan

    The gays are proving that they are the haters. not us. they want to force us to be gay as well. marriage is gods invention. anything else will be a fraud.

  • Sam

    You state “Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.” There are lots of ways to discriminate, and while I would say that while the firm that a firm against same-sex marriage might be more likely to discriminate on the matter of sexual orientation, there is nothing that says that the other company that applauds same-sex marriage would not discriminate on the basis of religious affiliation. The companies might simply discriminate in different directions.

  • Sim Salabim

    Somebody please tell these right winger that businesses are not guaranteed rights under the US Constitution. Only living, breathing things must have rights.
    Companies, churches, clubs, coffee klatschs, organizations, teams and most of all, corporations, should NEVER be granted the same rights as an individual. Their political influence is already undermining the America voter’s faith in our system of government.
    The term is ‘fascism’ and it failed in Italy just like it will fail with the Tea Party caucasians.

  • KyleN

    I disagree with your argument in using speech as evidence of conduct. For a government to launch criminal investigations based on speech has a chilling effect on that speech and indeed that would clearly be the objective. For a counter-example of hypothetical (hopefully) bad government behavior; A LGBT group applies for a occupation license for a new community center in a city with sodomy laws still on the books. It would be unreasonable for the government to investigate presumed cases of sodomy against the leaders of said organization due to the application for the permit. These cases are similar in both scope and their potential for speech chilling effects.

    As a self-described civil libertarian I was very upset by the actions of several government officials to even propose to sanction a business for the political speech of it’s president. The abuses appear to continue with Speaker Christine Quinn’s letter this past Saturday to the NYU president. I believe this is an instructive moment for our leaders to step up and say the right of fellow Americans to speak our mind is absolute much as Mayor Bloomburg has done. We should not be seeking excuses to justify suppression of speech.

  • gus gordon

    Mr. Dorf is missing a crucial point. All but the most fanatical supporters of GLBT civil rights would concur that the Chick-fil-A bigots have a constitutional right to speak their opinions–one should hope, w/a nod to old M. Voltaire. However, when Chick-fil-A donates millions of dollars toward unconstitutional legislation depriving citizens of one or more basic civil rights, there are exponentially more urgent consequences. For example, would the mayor of San Francisco be upholding the responsibilities of his office were he to endorse any business giving millions to a movement to deprive people of Asian origin of obtaining driver’s licenses? Would that not be immoral, plain and simple? Is Chick-fil-A any more deserving of civic support?

  • deanrd

    This isn’t about “beliefs”. It’s about dollars and cents. Gay people work. They pay taxes. Just like everyone else, they pay for those bridges and roads and sewers and electrical grid and all the other things that Americans pay for. In fact, when you look at their small numbers and their enormous contributions, one has to wonder how big a share are they actually paying? Look at the Crystal Cathedral, built by Evangelicals and sold to the Catholics but Designed by Philup Johnson, a man living with his boyfriend for 40 years who designed it because Evangelicals couldn’t find anyone talented enough or qualified to design it.
    So if Chicken doodles wants to sell their packaged pink sludge to unsuspecting consumers, fine, it’s all good. But if they want to discriminate, then don’t use the roads or electricity or anything else that involved “gay taxpayer contributions”.
    Right wingers think they have the “right” to do what ever they want because they have god on their side. But god gave all that talent to the gays for a reason. Maybe he likes them more?

  • Concerned

    This sounds like profiling… Should we only profile when LGBT discrimination is questioned but not terrorism?
    “But for government officials with limited resources, it would not be unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination somewhat more closely than the parallel claims of, say, Joe’s Gay Bar & Grill.”

  • jabberwolf

    This is Deja-vu. i remember the owners of Carls Juniors ( Southwest USA) had conservative views too. The point is, you can only enforce law on people’s actions, not thoughts. You cant violate the 1st ammendment for someones thoughts.
    When peoples rights are violated, its by an action, not by views/thoughts/opinions.
    You cant punish or abridge someones rights based on the way they think.

  • Oliver

    “But for government officials with limited resources, it would not be
    unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination
    somewhat more closely than the parallel claims of, say, Joe’s Gay Bar
    & Grill.” So, does that mean that government profiling based on political views or speech is acceptable? What about religious views? Should the TSA screen Muslims more carefully?

  • andy seredy

    Part of being a free society, is accepting that people are going to do things that you dont agree with. I personally dont care if same sex couples get married ( I have a hard time seeing how its the state’s business in the first place) but I also dont really care that Chik-Fil-A disagrees with it either. I do care, however, when one group uses the state to force their beliefs on an other. In this case, clearly any politician trying to use this force needs to be peacefully removed from office as quickly as possible. We have the 2nd Amendment specifically to protect the people from these kids of politicians.

    Curious how it comes from places with extensive personal protection prohibitions, isnt it?

  • mike

    Could have saved you the long speech here……..Americans are not fooled by all this rah rah. “Just politics”, as usual! If you don’t like what Cathy says, then don’t eat his chicken. Menino, the ballet dancer from Chicago and all the rest just want to keep that gay vote…..big mistake.

  • Patterson4

    You guys are scary.
    “Nonetheless, it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws.”
    Because the owner has a position on a hot button issue? The same position that Obama held until quite recently? If Obama had not changed his position, would you be advocating some sort of investigation of him? Does the House need to launch an investigation into Obama, and his perfidious possible violations of law?
    Is the holding of a political position sufficient for the government to launch a witch hunt, and to start accusing Chik Fil A of all sorts of unseemly things? Quite frankly your position sounds like nothing more than a crude attempt to ‘get” someone.
    It reminds me of Richard Nixon. (Next stop, IRIS audit for Mr. Cathy!)
    Believe me, in this day and age, if Chik fil A were discriminating, those being discriminated against would howl to the heavans and file complaints.
    This weak attempt to justify govermental harassment for espousing a poliical position is unseemly.
    This kind of position drives people away from your cause.

  • DawnBerkley

    The
    Gay-rights movement has become a bunch of fascists.

  • Adam Smith

    “First, speech manifesting bias may hint at illegal conduct manifesting the same bias”

    In this country, you’re innocent until proven guilty.

    “Hints” carry no legal weight.

  • hempangle

    When i was in the Army the people who were gay were always trying to get in everybody’s pants literally.I thought they weren’t suposed to be in the service back then but they were back in the sixties.They were in Viet Nam to and this really sucked.It was bad enough to have charlie trying to kill us and then we all had to put up with men who though they had to have sex with all the starights.Why do we have to follow in Hitlers steps.He was gay and so was the guy that put Jesus on the cross.I hope all there butt spinksters break and they have to were diapers.

  • hempangle

    I don’y know why there aren’t more people saying something.Are we sacred or is the media just not showing the comments of the people that don’t like this kind of thing shoved down their throats.It’s bad enough when i travel abroad and all i here is that the US is a prison nation.Is it now going to be a gay nation.What’s up people.I didn’t fight in Nam for this outcome.Where in the world is it written that we have to except gay people.God says to forgive them and i do,but i don’t have to live and breath to.

  • Ajax

    This has nothing to do with gay marriage. It has to do with the opinion of a man and his beliefs. The very idea that elected officials can attack a man for voicing his opinion on the subject is not acceptable. He is one man,one vote. The politicians displayed a very dangerous line of response. Millions of Americans have died around the world so other nations could not take our nation over. The free speech shall not be abridged has been forgotten by these people who would silence anyone not of their opinion.
    This is a dark day for America and we must rid ourselves from these bigots.

  • IBWatching

    You can blather on with your legal mumbo jumbo, but the one thing that you and the other Kool-Aid drinkers conveniently overlook is that in the eyes of the Lord, homosexuality is an “ABOMINATION !”

  • duke

    Opposing same sex marriage has nothing to do with “suggesting that LGBT Americans are merely entitled to second-class citizenship.” Heterosexual unions create the next generation and society and government have a legitmate interest in affording special protections to long term, heterosexual relationships. The government has no business sticking its nose in relationships such as bridge partners, golf buddies, same sex couples, etc.

  • http://twitter.com/Innocentious I.V. Baker

    Bravo and well said. Say this had been mayors saying that a company that had donated money to the LGBT, the outrage and the legal ramifications would have been justified by the left as well.

    Oh well… Nice post Michael

  • hilary walsh

    I do not
    agree with Cathy but believe he was completely within his rights to feel as he
    does and say what he says as long as his company complies with all applicable employment
    regulations. If Chick-fil-A can be shown to not comply with the law then prosecute
    them within the law. If not let consumers decide for them selves. I did not care either way about the issue
    until I read the comments made by Alderman Joe Moreno. This
    is obviously a man using his government position to punish someone with whom he
    does not agree. Based on his comments
    all things being equal I will now go to Chick-fil-A. I made this decision because the stance of
    the alderman is a step towards tyranny to be resisted at every opportunity. The first amendment does not apply only to
    those one is in agreement with. Based on
    the stance taken by Moreno
    and other politicians against the company who have used their official capacity
    to threaten the company I think any denial of permits and licenses going
    forward may end up in litigation that will be costly to municipalities.

  • Chuck Cunningham

    Excellent article. Thanks for the enlightenment and thought provoking observations

  • Chuck Cunningham

    Excellent article. Thanks for the enlightenment and thought provoking observations

  • F. Cuzco

    “the anti-same-sex-marriage statements of the chain’s president, Dan Cathy.”???

    Get your facts straight or show the quote. The statements I saw from Cathy said merely that he supports a type of marriage aligned with his personal faith: “We are very much supportive of the family — the biblical definition of the family unit.”

    You ought to instead criticize him for something he botched later in the same interview: “…we live in a country where we can share our values and operate on Biblical principles.” He sure got that wrong or at least it seems like this country will be there soon if the Christian-hating Thought Police have their way.

    What is so wrong with this guy having personal convictions different from the prevailing ones? Shall we next bust up their windows and have a 21st century

    kristallnacht?

  • http://twitter.com/FreeToSpeakOut vonSinkum

    QUOTE: The critics, after all, were right. There are plenty of good reasons for an individual to avoid patronizing Chick-fil-A—not just the company’s opposition to equality for LGBT humans, but also the plight of the chickens whose slaughtered flesh Chick-fil-A laughingly sells.
    I never heard a worker laugh at the chicken here or at KFC, or at the grocery store, or at Jack-In-The-Box………the list goes on.
    Obviously a very biased author above……..hates eating chicken.

  • damon

    A little too much navel gazing and shoehorning to make your opinion fit the law. I don’t like their stance either but granting government such ffexibility to wiggle from the letter of the law has unacceptable consequences

  • Mike

    So we in conservative states such as Texas, may initiate investigations of those who advocate legalization of drugs, sex with minors, open frank advocacy of Sharia, overthrow of the government (as is frequently mentioned in OWS), etc? Using government power to investigate people we disagree with sure is fun!
    After all, that speech clearly “hints at illegal conduct”.

    The answer for speech you don’t like, is more speech advocating your side, not an NKVD investigation into the speaker who offends you. You should be ashamed. But thanks for the idea.

  • Elli7000

    Although one must wonder how much money was given to mayors in cities where chick fil a was granted permits.

  • William Swinger

    Michael,

    You are a stark raving mad leftist loony moonbat lunatic. I hope that someday there will be a rebirth of Liberty and Freedom in this country long after the Fascists such as yourself have been delivered to your rightful place. Thank you for making America less free with your words.

  • K Hooks

    In response to Mr. Dorf’s comments about monetary support by businesses over matters of opinion regarding same-sex marriage, we should note that JC Penny give monetary support to pro-gay organizations that promote gay marriage. This business promotes gay marriage in its advertising as well. Has anyone suggested that their businesses be shut down because of their support of gay marriage?

    We must remember that free speech must be applied equitably. If one business is censured for anti-gay marriage activism, the other must be censured for pro-gay marriage support. We can’t have it both ways. Our Bill of Rights exists in order to provide a voice for all.

    K Hooks

  • bulldogs

    Professor Dorf wrote:
    “Nonetheless, it would be reasonable for a government official to subject
    Chick-fil-A to careful scrutiny in order to ensure that the company
    really is complying with anti-discrimination laws.”
    —————————————————
    Shame on you Professor Dorf, you are handing future government officials legal cover to bludgeon the free speech rights of private companies and their owners.

    Perhaps a government official might find something objectionable about what you say or write and subject you or your employer to careful scrutiny for compliance with the law. Permissible free speech is not probable cause. You seem to suggest that a person’s permissible speech is a tool to profile people ( and private companies )for further careful scrutiny.

    I can imagine how this bludgeon of careful scrutiny could be wielded against differing locally unpopular speech by craven politicians in both my native liberal state, and my adopted conservative state.

  • mike

    Comically, I note the law professor only wants a cheering section, and will not allow a comment that does not agree with his theory. Go ahead and have your fun, but please know something; the game has changed. Yes, we will be most happy to use the exact same tools you array against us!
    Your central thrust was to find a way to investigate for compliance, those who say something unpopular. I bet we could find a lot of potential jihadis, supporters of NAMBLA, drug dealers, etc., simply by carefully watching speech of advocates!
    Now that i think of it, advocacy of open border assaistance organizations seems to “hint” at involvement in human trafficking. Worth a look?
    I do realize it’s your blog, but i wasn’t abusive, rude, or anything like that. You diminish yourself by your intellectual cowardice. Post the comment and let the debate begin! Falsify my position. My guess is that in your zeal to find a way to go after Chik-fil-a, it never occurred to you that maybe your side could be targets as well.
    Shame shame.

  • TravisMonitor

    The huge intolerant outcry against a man who expressed the Christian viewpoint in support of traditional marriage, a viewpoint shared by a majority of Americans as expressed in state-wide ballot elections in over 40 states, tells us something important: That the imposition of gay marriage in law will lead to suppression of the legitimate viewpoint that marriage should be between one man and one woman. To welcome this trend of punishing the un-PC offenders begs a question: has the arc of gay civil rights now come full circle to replace one form of intolerance with another form? Your example of the recent threats by mayors, just like the aggressive attack by the Obama administration and the HHS on Catholic organizations regarding contraception, is a wake-up call to people of faith that their beliefs are under threat. As stated: “in a pervasively regulated market, very few decisions are purely “private.”” F. A. Hayek would understand: The road to serfdom and loss of freedom is laid over Big government and creeping socialism. No, it would NOT be reasonable for a government official to ‘investigate’ a law-abiding business that serves a marketplace just because their views are politically disfavored, it would be reasonable for government officials to quit meddling. “None of this is to say that government officials should have broad
    license to discriminate among businesses based on the speech of their
    owners” – Yes, the correct answer is zero license to do that. One must ask why any mayor should have any say in whether a chicken joint can exist in his city, irregardless of the political viewpoints of the owners. (And of course it is obvious that there is latent political thuggery in withholding city licenses from those who are not politically attuned to the mayor’s own politics, whether you agree with the ’cause’ or not; in the old days, this was called corruption, graft, and shakedowns, and disdained as Tammany-style politics. Now, it’s known as “Chicago values.”)
    To sum up, you present the frightening possibility of political intimidation and loss of 1st amendment freedoms at the hands of government officials. Whether legal or not, these are abusive behaviors and a path none of us should want to go down.

  • Blaugh

    You’re a huge douchebag. Everything about your writing gives away your agenda and pre-conceived judgements about anyone who disagrees with your stance on gay marriage.

  • jake

    Morbidly obese hillbillies are lining up to shove their
    faces with greasy food guilt free, while hiding behind the First Amendment & Jesus! Give’ em some more to hasten clogged arteries!

  • bubba

    i love fried chicken

  • Lucien Bodard

    Everybody likes the gay issue whether for it or against it. With sex lurking in the background, it is a titillating diversion from the empty lives on both sides of the issue. It is put forth in detail by the media every day because it sells viewership. Like there weren’t a billion people starving to death on the planet and another billion who own but one pair of shoes, while a gaggle of vacous adolescents harangue over their self important opinions.

  • http://www.facebook.com/wane.smith Wane Smith

    Really easy to limit their speech, legally according the Supreme court you may tax any actions even though, that tax would stop something that is clearly apposed to what is constitutional. So just put a tax on all organisations that appose Gay Marriage. See
    National Federation of Independent Business v. Sebelius

  • Jerry Allen

    Too bad someone that is so openly bias has a position of power to corrupt young students.

  • ephraimf

    it’s funny how the author mentions the example of a “Joe’s Gay Bar & Grill”. If I opened a bar called Bob’s Heterosexual Bar & Grill, there would be a new civil war.

    The problem people have with the whole “gay” issue is that we don’t really care what you do in your private lives, we just don’t want it thrown in our faces.

    Why the parades? You want to be gay, be gay, that’s your business. Why does anyone’s sexual orientation even make it into the public conversation? I never saw a heterosexual parade. Do what you want, love who you want, why flaunt it? I don’t say hide it, just don’t flaunt it.

    Everyone has a right to their opinion. Marriage to many will always be between a man and a woman. That is their opinion, and they have that right. Others have a right to disagree.

    This company will now make much more money because of all the publicity and the people that will come out to support them.

    Gays have their rights, but so does everyone else. We are all free to say what we think.

    Whether we are talking about religious freedom or sexual preference, what people hate is having someone else’s beliefs shoved down our throats (no pun intended).

  • Bill N.

    You wrote “it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws”. Free speech isn’t free if one person’s free speech gets them more investigated than any other if for no other reason than their speech.
    The way our laws work, unless someone makes a claim you actually did something wrong, you don’t get investigated any more than any other business of similar product simply based on your views. You have to have evidence of wrong doing.
    You wrote: “it would not be fair to conclude that a firm that opposes same-sex marriage also discriminates on the basis of sexual orientation in employment or public accommodations, but it would be fair to investigate that possibility on such grounds. Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.”
    It’s one thing, after a crime is committed, to see a tall person, a medium person and a short person walking away from a scene, and, knowing the a victim said the person was really tall, you then ask questions of the tall person first. It’s quite another for there to be no crime and just say that we ought to proactively just examine all tall people (search without a warrant) and give them a targeted going-over different from short and medium people simply because they are more capable of pulling off a crime based on their physical features. You’re going on a crime hunt. The law doesn’t excuse that.
    You might as well pull over people who drive Red Sports Cars or Ferrarri’s. I mean, sports cars can go 3 times the speed limit, so it warrants pulling them over and putting a special device on their car to automatically report when they go over the speed limit, but a small compact car own doesn’t need one because he is not as tempted to do so. The constitution doesn’t excuse searches without a warrant because of statistically higher probabilities of committing crimes. No. It’s that simple
    You’re essentially talking about a case where there is no allegation of wrong-doing, no reported crime, and nothing to base a reasonable suspicion or probable cause that a crime was committed or was emminent. You’re only saying that they belong to a “class” of people that statistically are more likely to do wrong but who individually have no signs of having done so.
    Do you do racial profiling next, gender profiling, wealth profiling? Do you get to just peak into people’s affairs based on random probabilities? Gone is the freedom from a search without a warrant obtained by an officer of the law appearing before a judge with facts found to objectively implicate someone in a past crime or that implicates them in committing a crime imminently, not based on circumstantial evident of something more than that. You’re asking a person be sentenced to government oversight above that of any other person just because they are part of a class of people, not because as an individual you have anything at all on them other than fear or disdain.
    When you make one class of people subject to strict scrutiny just by virtue of belonging to a class, if that isn’t discrmination, what is? You’re guilty by association?? Would our police force be run by mathematicians or actuaries going around doing probability analysis on all of us for all kinds of crimes and this authorizes all of us to be investigated more thoroughly for our individual likelihood of doing some illegal activity? I think all of us have a higher likelihood of some one thing more than another. Does that mean we all get proactively investigated to be sure we haven’t done what other fear we seem we just might?

  • Mike

    Great article, good to see a well-informed opinion.

    Here’s what I’ve been trying to figure out. It is fairly settled that private businesses cannot discriminate against people on the basis of race. Increasingly, we are also seeing non-discrimination statues protecting sexual orientation as well. That’s all good and well. We have also seen that speech is never just speech, but is actually bound up with money and action. In the case of Chik-fil-A, Cathy is not just speaking out against same-sex marriage, he is, as the article states, funding organizations that not only oppose same-sex marriage but homosexuality itself. Some of these organizations would also support discrimination on the basis of sexual orientation.

    Back to what I’ve been trying to figure out: if it is unacceptable to discriminate in hiring and service practices, why is it acceptable to support legislation that would render those very same forms of discrimination legal?

    We refuse to tolerate discrimination, why should we tolerate the money that enables it?

  • http://www.facebook.com/people/Conwaythe-Contaminationist/100002377812124 Conwaythe Contaminationist

    You are a delusional man with an agenda, or a cynical Goebbelsian rhetorician.

  • Steven William Schlah

    There is a grand fallacy that you jump to without, even with your great amount of verbiage, as to the connection that since Mr. Cathy is staunchly against same sex marriage, that he will carry that into employment hiring practices, which of course would be illegal on its face. But you did not support your grand leap of faith of one to the other, but rather eluded that if you believe one, then you must put the other into practice. It would then seem that YOU, in fact, may have an agenda so that the connection can be made. But then, I would be guilty of what I accuse you of. While I only have a History, as well as a Political Science degree, I studied under Professor C. Herman Pritchett, ex-professor emeritus of the University of Chicago and a friend of both Justices Felix Frankfurter and William O. Douglas, at UCSB and he always said that everything must be proved before basic assumptions can be taken as fact and I don’t see your proof. As you are an esteemed Justice journalist, maybe it is I that is in error, but until I am corrected, I will jump to the conclusion that I am correct.

  • GV_Comment

    One more article with long drawn hypocracy of taking a statement of belief into an act of crime?

  • Guy Macher

    Mike, Cathay expressed his opinion about marriage. He doesn’t treat gays poorly but he does not agree with their viewpoint. The problem is not with his speech but with the libtards in power. No one is compelled to spend money at Chick-fil-A. Government is too big for its britches when it proposes to teach a man the accepted opinion.
    I detected a greater concern with chickens than babies in your column. Something you might want to think about.

  • Richard Draucker

    It’s all pretty simple. Marriage is a holy sacriment. The government has no right to grant marriage to anyone, the Supreme Court should have nixed that a long time ago. It clearly crosses the line between the separation of Church and State. If the government wants to create Civil Unions, the personal equivalent to a business partnership, that’s just fine, but a marriage can only be granted by an ordained minister. The sooner the government gets out of the marriage business, the sooner this stupid controversy will go away.

  • really

    Don’t tell anyone that they can’t say anything, it’s their right to freedom of speech. people like to say gay marriage is so bad because of a small passage in the bible.Leviticus 18:22, 24
    Thou shalt not lie with mankind, as with womankind, it is abomination. Defile not ye yourselves in any of these things. Well in that same book it said to not wear cross blended clothing. Leviticus 19:19 reads, “You are to keep My statutes. You shall not breed together two kinds of your cattle; you shall not sow your field with two kinds of seed, nor wear a garment upon you of two kinds of material mixed together.” Nobody cares about that though, maybe because everyone does it. So before you spout your hate throw away 90 percent of your clothing, then tell me how homosexuality is bad.

  • oh2zcue

    You should mention that wanting to “act out” against Chick-fil-A is no different than going all the way and boycotting all religions that teach such beliefs. Is Alderman Moreno going to go to Rome and duke it out with The Pope?

  • staybetweenthelines

    It’s scary that the same people who raised objections with the second amendment are now attacking the first amendment. Are we beginning to see a full attack on the Constitution?

  • Nolan

    I really do not like that you put “way out” in quotations when you mentioned that Exodus offers assistance to LGBT persons seeking a “way out” from homosexuality. This implies that there is no “way out” for the homosexual who is struggling to reconcile their sexuality with, say, their religious or ethical values, which is infuriating.

  • Anderson

    There is a lot that is dangerous in this column.

    1. The author completely equates speech about a policy issue which is clearly in debate with speech that is suggestive of the type of discrimination that is currently illegal. Just months ago, the President of the United States held the position that marriage should be defined as a man and a woman. Should the government regulators have been actively looking at his administration for discrimination in hiring???? Or is it just private businesses that should be targeted?

    2. By your own logic, Joe’s Gay Bar and Grill could be suspected of favoring gay employees to the detriment of other candidates. maybe it should be investigated. Your perception of bias is built on YOUR perception.

    3. As any small business owner or audit target knows, there is a cost when the government comes knocking on your door. Both time and the public implication of impropriety can be problematic. So in a sense, your position if fully realized could have a chilling effect on free speech.
    In essence, “Yes, you have free speech, but, if you use it we’ll need to investigate your business.” Courts have long acknowledged this effect – systemically hindered speech is not FREE speech! Cathy said nothing that implies gay people should not be hired. That is a leap you are making and which, you would in the future be willing to allow some bureaucrats to make.

    5. You make a huge assumption that actual hiring discrimination within a large company is related to the NON-HIRING related political views of the owner and suggest a massive policy response. Errrr….evidence, please?

  • Wallymac

    Could…might…may…?!? Since Chik-fil-A has absolutely never been charged with violating employee civil rights, your complaint is confusing. You are quick to point the finger of shame at a company that has never committed the crime you fear that they could…might…or may do. Get facts..then complain.

  • john whitehurst

    The discussion was good, but you only used ( Chic Fil A ) as your example..

    Ben&Jerrys iecream support Gay and Lesbian rights groups.. Has anyone done to them what was done to this company.

    It is a matter of free speech but some do not get it, to include the big mouth government employees who shot their mouths off..
    My Op is they need to be fired or Recalled.. I know not in your prevue.

    I personally have nothing against G or L life styles, but they seem to think we must, we must, meaning us the other general public accept them and change our ways now>>>>….

    My suggestion i;welcome but do not wear the welcome out.

    Time not high pressure; because it will back fire like the Chicken Res thing…

    To me marriage is an old intuition, but these groups are insisting on using this term. I know it is not going to happen any time soon.

    Here is a thing thousands of years old and they want us to just agree. This to me degrades, and perverts this if they are allowed to use this term for cohabitation.

    Use another, but no they insist, so do not wear the welcome out!

  • j

    i believe in chick-fil-a standards, because i believe in the bible it says it is a sin to do what the gay and lesbian people do. evil things will not win because the bible says in revelation who will win take that you evil people.

  • david

    Wow you put a lot of deep thought and analysis into this. I wish there would be the same careful study of other left/right issues, on taxes, and on illegal immigration enforcement; But for all the analysis on this issue I wonder if the basic point is missed: Any individual is entitled as a matter of reality to their own opinion, and they are also entitled to support or deny support to groups which agree versus an individual who works for the government monopoly power and which is being used to further that individual’s opinion against the citizens opinion – In that case we have crossed a line into tyranny and that bodes bad for anyone now or in the future. This tolerance idea must work both ways and in all contexts. An individual who works for the government enforcers must not be allowed to exercise their opinions over others not so power endowed, and no matter how hard they try to justify it as based on some laws enforcement.

  • http://www.facebook.com/people/Bob-Griffin/100000619210619 Bob Griffin

    Nice reasoned articulate, well researched article. It was wrong for Chicago an DC governments to refuse to allow new Chic-fil-A to be built because of the bigoted comments of the company president. It is right that the company be monitored for violating the rights of gays in hiring, serving, and access to stores and services. It is right that the stores be picketed and boycotted because of the bigoted comments of the company president. My family will NEVER eat there again. My company will never again serve their product. Long live the First Amendment.

  • Patterson4

    Like I said, you guys are scary. And apparently, you are into censorship as well. Typical.

  • 411

    If someone advocates the legalization of marijuana, should that person be subject to additional government scrutiny to make sure he/she isn’t violating existing laws against marijuana? Other things being equal, surely such a person is more likely to be using marijuana illegally than a person who advocates the criminalization of marijuana.

  • babyowl53

    It is a sad day that a company, one I thought highly of, finds it necessary to be so biased against a group of individuals. I’m not really sure what the company gains by this stand other than financial losses, as people who find issue with the company’s views, make the decision not to eat there any longer.
    It is also a say day that a company decides to try and rule morality of the American people as well as make the decision to be mighter that the Almighty in heaven. This to me, is another case of bigotry in the name of Christianity. I doubt Jesus would be proud of the Dan Cathy, I’m certainly not.

  • adw

    ….assuming the existence of lower level discrimination due to Chic-fil-A’s statement is like assuming gay bars
    have lower levels of discrimination against heterosexual customers due to their lack of homosexuality…….come on!

  • http://www.facebook.com/people/Harold-Maio/1398619703 Harold Maio

    Does -speech- reveal -behavior-?
    Are the two not behaviors?

    “Move to the rear of the bus”, “don’t ask, don’t tell” were more than words, they fostered behaviors, validated behaviors,.
    “We shall overcome” did so as well.What was there to overcome if not reilgious speech made manifest in government speech?

  • http://twitter.com/pithhelmet pithhelmet

    Impeach and prosecute these ‘mayors’ for abuse of power. making threats and possibly enforcing new ‘zoning’ rules to keep a business out…. what a shame. this country is so fu

  • http://www.facebook.com/people/L-Pat-Williams/1122891334 L Pat Williams

    This article is GARBAGE! Given the simple fact that CHICK-FIL-A has always been a CHRISTIAN FAMILY with a BIBLE-BASED COMPANY. Religious, PRIVATE companies have a right to promote their RELIGION. Now, granted you cannot discriminate to the public (either as employees or patrons).
    But, the PROBLEM with the whole CHICK-FIL-A thing and why so many of us TURNED OUT LIKE GANGBUSTERS TO SUPPORT THE COMPANY YESTERDAY is this…
    The American public “gets it.”
    I, being a BIBLE-BELIEVING, BORN-AGAIN CHRISTIAN cannot STOP the BUSINESS of a MUSLIM or an ATHEIST or even a SATANIST or a HOMOSEXUAL from opening up because it does not jibe with “my values.”
    How much more should POLITICIANS, i.e, PUBLIC SERVANTS in POWER attempt to be so brazen to do such a thing?
    That is what THE MAJORITY OF THE AMERICAN PUBLIC is looking at here.
    I cannot tell a Muslim, Atheist, Homosexual or Satanist not to give money to their “beliefs” churches, mosques or organizations!
    How dare I????
    As far as EXODUS INTERNATIONAL that organization is very clear it follows THE CHRISTIAN BIBLICAL VIEW that “Homosexuals can change” and “that change is possible through Jesus Christ.”
    This is based upon SPIRITUAL principles.
    If a HOMOSEXUAL feels he or she “cannot change” then that’s what they “feel.”
    But, they cannot STOP someone from PREACHING THE GOSPEL OF THE LORD JESUS CHRIST THAT INDEED SAYS — ALL THROUGH THE SUPERNATURAL POWER OF CHRIST JESUS — CAN CHANGE. I Corinthians 6:9-11 supports this very foundational Biblical belief.
    So, EXODUS is NOT for a Gay or Lesbian who feels that they cannot change or who are not seeking a SPIRITUAL, SUPERNATURAL change.
    That is for a Gay or Lesbian who is SEEKING such a thing.
    And, again, that ties directly and perfectly with solid, foundational BIBLICAL, CHRISTIAN FAITH beliefs.
    If you don’t believe that, then do not convert to CHRISTIANITY.
    But, here’s what you cannot do… you cannot be so brazen to attempt to silence or stop those who are converts to CHRISTIANITY from expressing their faith and operating their business dedicated to their CHRISTIAN GOD.
    Otherwise, should we now start snatching down Buddhas from Chinese restaurants? Taking up prayer rugs from Islamic convenience stores or banning the pentagram from Luciferian book stores?
    Give me a break!
    CATHY GIVE JESUS CHRIST & JEHOVAH GOD YOUR WORSHIP & DEDICATE YOUR CHICKEN SANDWICHES TO HIS GLORY!!!!
    This is your GOD-GIVEN (as well as American right).
    Anyone who doesn’t like it or agree…
    STAY OUT OF CHICK-FIL-A.
    Pure & simple.

  • efpefp

    Bravo Mr Cathy… I enjoyed one of your chicken sandwiches yesterday and will again soon… These gay/libs want everything their way…. regardless of others opinions and beliefs… may they suffer eternally….

  • JKRIT

    “But for government officials with limited resources, it would not be unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination somewhat more closely than the parallel claims of, say, Joe’s Gay Bar & Grill.” And so begins the slippery slope of “somewhat closer scrutiny” of political opponents by those in power. “Claims of non-discrimination” require scrutiny? Isn’t that backwards, like being guilty until proven innocent? Maybe a “government with limited resources” should wait for a real claim of discrimination to scrutinize. Did Gibson guitars get their fret wood back yet? How’s Frank Vandersloot doing with his sudden and nearly simultaneous audits by the IRS and the Labor Department? Just a little “scrutiny” here folks, nothing to look at, everyone move along . . .

  • gnowthi

    OPINION ON GAY MARRIAGE Why does not someone answer the demand of gays for equal rights? We don’t want to be unfair. The constitutional right to equal protection does not mean that everyone must be treated the same. An adult, two or three times the age of a child may be given voting or property rights that are not given to the child… In the use of a village owned parking field, a nonresident may be charged a fee higher than charged to a village resident. A healthy, able bodied, person need not be given the same right to public accommodations as a handicapped person. What is the test? Where there is a substantial difference between two groups having some reasonable relation to the subject of the regulation. In the case of benefits given to married couple and withheld from “gay unions” there is ample reason why rights given to a union of a man and a woman can be withheld (and perhaps should be) from a “gay” couple. This distinction is not based on religious principles. For centuries the family has been regarded as a foundation of a tribe or nation. This is a union designed to produce the children needed to sustain nation. We see this illustrated in present day Europe. The non-Muslim couples in nations like France are not having children. Abortion and contraception have led to a situation where the marrieds are not replacing themselves. The Muslims are producing children and expanding. It is in the interest of a nation to encourage family stability and production of offspring. Is it not fair to ask: What benefits flow to the national welfare from the union of same sex couples? There is no constitutional objection to laws treating the two groups differently. One might question my expertise in this area of the law. I graduated law school ‘summa cum laude’. I was a judge for 15 years. I handled the legislative program of Nassau County for 10 years. CURRICULUM VITAE OF FRANCIS J. DONOVAN 1. Juris Doctor, summa cum laude, St. John’s Law 1941. 2. Short period employed by Alexander & Ash, admiralty practice, immediately prior, and subsequent, to service in US Army. 3. 1948 to 1959 – Deputy County Attorney, Nassau County; primary assignment, taxation and finance; variously assigned as counsel to: Assessment Department, Department of Public Works, Sheriff, County Treasurer, Board of Supervisors, Franchise Department and County Comptroller. Conducted legislative program including drafting of bills affecting county and towns, following bills through legislature etc.. Handled all taxpayer actions, election litigation and special assignments. 4. 1959 to 1973 – District Court Judge, Nassau County and temporary special assignment to Criminal Court, New York City, and Nassau County Court. 5. 1973 to date – Engaged in general practice with emphasis on estate and probate matters with Donovan & Donovan P.C. 6. Author: “The Judge Talks Politics” Francis J. Donovan 14 Field Avenue Hicksville, NY 11801

  • Phillip Durkin

    How does giving money to an anti gay rights group, differ from giving money to a pro gay rights group, or to a politicial party, for that matter

  • http://www.facebook.com/people/Ron-McCallister/100003199658866 Ron McCallister

    Nonsense! This article makes the ridiculous claim that even in the absence of any actual proof of bias, the exercise of free speech may be used to infer bias. Let me use small words to make sure this nonsense is clear to even highly-educated liberals. No evidence of any bias can be found in spite of great effort, yet this article argues that the owner’s free expression of his personal religious beliefs may nonetheless be legitimately used to infer that bias MUST somehow exist anyway. Mr. Cathy’s comments are not what should be of concern to every American – but this article should. I have been arguing against Tea Partiers for the past few years, assuring them that their fears are misplaced and irrational. Based on the sentiment in this article, I guess I must now concede that they were apparently correct all along.

  • sanrita

    Seems to me that a city has a right to allow or disallow certain businesses within its borders. Isn’t this what the right wing is constantly claiming to want – self determination by states or localities? Besides, Chick Fillet is violating Equal Opportunity laws by not hiring employees of certain religious beliefs – hiding behind the franchise/contractor laws is a chicken crap way to practice bigotry. Period.

  • Anonymous

    What was this article on about? Nothing to add to the discussion and no analysis. Bah! Humbug. Were you on a deadline?

  • heatherGirl

    Could you imagine if a conservative mayor of a city said a business could not expand into his city because the owner supported gun control….. or abortion rights……. or the health care law.
    Oh the nashing of teeth by the media, the crimes of agony. I am sure a few will even mention racism……… you know they got to mention racism.
    I think it is some rule the liberal media has now. If you listing three reasons why something is bad, at least one has to be racism……..

  • LC

    wouldn’t that be considered “profiling” if you investigated firms merely because they appeared to be anti-whatever becasues of the statements of a few individuals associated with that company??? Isn’t profiling bad???

  • RJH

    What you have argued for is nothing short of profiling…if you allow the profiling of a business by the government (because it has limited resources etc) you should also allow profiling of Arabs by the police (who have limited resources) as potential terrorists. If one is wrong, so is the other. If a cop hassle a black teen-ager because he is wearing a hoody, the cop is out of line, the same goes for an alderman who hassels a business for what the owners say.

  • KevinP

    It would not be “fair to investigate” or “not unreasonable to scrutinize” based on possibilties, assumptions, or limited resources, any more than it would be fair to profile based on race, would it?

  • Bob Franks

    You need to revisit the definition of Fascism, and re-study how Hitler and the Nazis first ostracized, then persecuted, then killed the Jews. We compress those events, but Hitler took over in 1933 and began first with Fascist policies to impact the Jewish business community, much the same as the mayors of these American cities are trying to do. Shame on them and shame on you for obfuscating the issue and trying to rationize what they are doing. Your attitude would fit well in 1930s Germany. And Shame on Boston for supporting a mayor who is turning the cradle of American liberty into the cradle of American Fascism. And I find gays offensive, and I not emany donate freely to pro-gay causes with nobody squawking about that, so why can’t a business donate to an anti-gay cause – it is all free-speech issues. Next, these Democrat mayors will try to sanction Republican-owned businesses and silence the Churches. This is how it starts. Historians study with wonder how Germany went from democratic to evil dictator; it is simple to understand, just listen to these mayors, and to you of academia, and many in the press who are either advocating out and out fascism, or remaining quiet on their watch, Back in the day, no mayor would dare say what htese said, because all of the press would have cried FASCIST in one voice, and they would never hold a public office again.
    God help America. Wake up people, these fascists want to steadily take away your liberties, under the guise of some false tolerance of evil.

  • Tom Cox

    We should step back from the law of government over speech and business and look at this simply. Love thy neighbor as thyself. If a gay person wanted to open a burger joint in my community, I would buy burgers because they were a good product. I may disagree with the moral choices of the gay person, but I would show love to them by supporting their business.

  • Bob Franks

    And for public parks and restaurants, then any restaurant that supports EITHER side of a debate should be banned from the park, not just those the party or people in power disagree with. Many food chains have donated for gay causes, so they too should be banned from public parks, if that is the case (cigarette ads were taken off the television because cigarettes had supporters and opponesnts and the airwaves are a public medium regulated and controlled by the govt).

  • flowerchild44

    Honestly ,They have a right to their opinions just as those who support gay rights have theirs. He did not say he hated gays or that he was going to discriminate against them but that he believed in the biblical definition of marriage. I personally believe everyone has a right to go in the path they want in their life and with that freedom comes the responsibility, maturity, and acknowledgment that not everyone is going to agree. Those who believe in a definition of marriage and those who believe in a different definition of marriage really should respect everyone’s rights.
    After all, as I understand the bible we are to LOVE EVERYONE!!!!!!!!!!!!!!!!!!! With that love comes the respect that we are all on different paths in our lives and responsible for our own lives. If we discriminate against those who take a more traditional stance to marriage then we are no better then those who discriminate against alternative lifestyles.
    Peace.

  • Anthony

    Chick-fil-A should have a visible note on an entry door as:
    “For the straight ONLY”
    “For the white ONLY”
    “For the black ONLY”
    “For the Bible followers ONLY”
    “For the man ONLY”
    “For the woman ONLY”
    “For the …. ONLY”

  • David Stutz

    The nature of power is based on deceit and government will do what it wants until someone stops them which is becoming ever more difficult.

  • John Rogers

    Joe’s Gay Bar and Grill….the govt should also scrutinize them since they just might be discriminating against straight people. The name alone is discrimiantory and as such the govt should not allow such a name. Imagine Cick-fil-a with the name Chick-fil-a Straight Restaurant? In short, your examples are half-baked and immature and only think of it from one side, the side that supports gays. You forget and ignore that many are very deeply offended by gay public behavior. Contrary to the current political correctness meme (which too shall pass), gay lifestyle is not natural, and not normal, and so others find it offensive when it is displayed in public, which it seems many gays are intent are claiming the right to do – to push their lifestyle into others’ faces. Hence they call for a kiss-in in public as a way of protest. That type of public behavior is PRECISELY why others are opposed to gays – they are too in peoples’ faces with it, every minute of every day, and proud of being so in our faces. They seem to relish in offending, so the backlash that comes will be their own doing. Chick-fil-a set a sales record yesterday – normal people are fed up with gays being so in our faces every minute of every day.

  • Snugglez

    The problem with this entire op-ed is that it assumes the only thing that makes LGBT people “unequal” is their inability to wed, which is just ridiculous.

    Whether one agrees or not, many states (including my own) have legally defined marriage as being between a man and a woman; most of these states have also allowed for marriage-lite unions between gays endowed with the same exact rights afforded in a marriage, just not the name. Gays are fighting over the name, not the rights–Let’s be clear! While I personally couldn’t give a flying fig whether gays get married or not, you’d think, given their minute population proportion and the fact that not one piece of good, politically neutral science has emerged to prove that they are “born gay” (and that it is not a disadvantageous biological mutation), that they would “compromise” with having the same rights but under “civil unions” or “domestic partnerships”!

    And so, since Chick-Fil-A donates money to Christian groups who happen to believe or act in accordance to their 1000s of years old holy book believe in the so-called Christian definition of marriage, you cannot extrapolate from that that they’ve violated any citizens’ liberties or rights by just holding the belief, especially when no one has accused them of discrimination.

    Not supporting gay marriage is not equal to not supporting gays because gay marriage is not a reasonable litmus test for so-called homophobia (especially since many Christians–and Dan Cathy is one–constantly stress this whole “love the sinner, hate the sin” mantra).

    I would argue that it could be reasonable to investigate a corporation had the owner espoused racist beliefs or racial supremacy. History would be enough to provide evidence that those types of beliefs are generally not religiously-based, and that they tend to be impactful beyond just the owner’s bigotry. But, even then, because of the nature of having franchisees running the shops of a corporation such as Chick-Fil-A, it may still be overkill to act solely on the words of someone in Cathy’s position.

    I feel sorry for Chick-Fil-A, and am happy that the US Constitution has at the very least protected franchisees from losing revenue or their jobs by protecting the speech of an isolated individual…

  • yaakovwatkins

    If speech can be evidence of misconduct, it would therefore be reasonable to investigate whether Planned Parenthood, Moveon.org, and the New York Times discriminate on the basis of religion in employment.

    The courts have already ruled that schools may not discriminate against churches when they rent out space after hours. If a public school must allow a church to rent space in a school after hours, what would be the rationale for allowing the government being allowed to discriminate against the same church in renting out an office building.?

    More pervasively, if a a government as landlord would be implicated in a message by renting out an office building or park to a religious organization, then certainly a private party would be implicated in a message by renting out an office to Planned Parenthood or a gay rights organization.

    And for that matter, both the Democratic and Republican conventions will be held in public facilities. Will those governments be implicated in the partisan messages?

  • Jeffrey James

    So if, say, a conservative-leaning district were to say they would deny an atheist company a business license because they claim there is no God, would that not be the same thing? Because that Atheist business spends money on politicians that take away the rights of those who have a religious foundation? Say, for example, the latest brou-ha-ha where the catholics are up in arms because some catholic organizations now have to provide contracveption, even though their religion forbids it? You would be OK with that as well, I presume. Oh wait, you’re just enacting the straw-man scenario in your pursuit of your vision of the truth. My bad.

  • Minh

    You state the following: “…laws forbidding same-sex marriage can reasonably be understood as conveying a pernicious social meaning—suggesting that LGBT Americans are merely entitled to second-class citizenship.”

    I disagree. LGBT Americans already have all the rights that every man, women, and child has under the Bill Of Rights. If marriage were a right everyone (homosexuals and heterosexuals alike) would already have that right. Only marriage is not a right! You do however have the right to have sex.

  • lydia

    Can it be possible for gay people to understand that an American can support their rights to exist as they are, to support their rights to kiss each other, and to support and in fact encourage their rights to link together forever in love over time, without being in favor of “gay marriage?” Why can’t gay people have a permanent covenant with one another that is called something other than marriage? Gay people cannot have natural children with genetic makeup of the union of the two. That is not a value judgment, it is simply a fact. The union of two gay people could be legal and all kinds of other positive things without being called the same thing as marriage. It is just not the same thing as marriage between a man and a woman. This is a simple difference and does not need to be a pitched battle. I would like to support and encourage mature and legal gay unions without calling it marriage. Why can’t that be an option?

  • http://www.facebook.com/people/Mikado-Cat/100001636286956 Mikado Cat

    Luke warm defense of the bill of rights, offends me, you shall not be allowed a building permit in my town, clearly you also need to be audited by the IRS, have your papers regularly checked, get an extra smog check, be watched while you shop, your library card needs a red star to make sure books you return have all the pages.

  • Al

    Very well written! Slippery slope to be sure.

  • Common Sense

    “Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.” What? This statement reveals the bias in this article. The point of non-discrimination is non-discrimination. If a firm applauds same sex marriage, that is just as slanted as a firm that applauds opposite sex marriage, is it not? Anyone who has ever been employed by a gay person understands very well that the gay community has no problem with sexual discrimination, as long as it discriminates in favor of their agenda. The author of this article clearly has no problem in pandering to that same mentality.

  • R. Farmer

    Prof. Dorf, your effort to somehow justify the illegal comments by several politicians in this affair is absurd. The issue is simple and you expressed the correct analysis at the beginning: ”
    As law professors Nathan Oman andEugene Volokh each independently observed, the First Amendment to the U.S. Constitution forbids government officials from discriminating against a person or business based on the viewpoints expressed by the person or by a representative of the business.” The various liberal politicians who popped off on the subject should be severely criticized, and your attempts to complicate a simple situation are simply a distraction from the important issue: government officials again barging into an inappropriate area of regulation.

    Of course, I suppose the if the local officials can create some kind of tax (read: penalty) associated with denying a permit to a business that supports political/social causes opposed by the Mayor/City Council, then the whole issue of free speech can be swept away and government coercive power is again preeminent.

  • WestCoast

    Aren’t you glad that the union of a man and woman created you? I am in favor of everyone having someone in their life who cares for them be it the same sex or not. When we all become homosexuals we will die off and the earth will recover without us. Hypothetical scenarios don’t offer a fact but can reveal a struggle to prove a non-point. Common sense is held by most and freedom of choice allows us to either swallow their menu or drive past to let them survive or fail.

  • JonFrum

    What a disgrace. If a mayor announced that he would block permits to a business because its CEO was a supporter of Israel, and the mayor was an opponent of the Israeli governments treatment of Arabs in the West Bank, there would be no equivocating. This is exactly how the First Amendment gets torn up and we fall into a dictatorship. Please remember that many Germans were happy to see Jewish businesses shut down.

  • Richard Draucker

    The real question is why governments are creating marriages, a holy sacriment. The U.S. Constitution is supposed to keep government out of religion. Let them make all the civil unions they want, a civil union is just a personal version of a business partnership, but they shouldn’t be in the marriage business in the first place. Marriage is different and should be limited to the powers vested to ordained ministers.

  • Octavion

    “First, speech manifesting bias may hint at illegal conduct manifesting the same bias…”

    This is sloppy thinking, Professor. Did you forget about the 5th Amendment? A judge isn’t going to give you a warrant based on a “hint”.
    “Nonetheless, it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws.”

    No, it would not be reasonable. Reasonable would be to counter Mr. Cathy’s ideas with a logical argument instead of a threat.

  • http://www.facebook.com/people/Pop-Aaron/100002762221185 Pop Aaron

    Honestly, they call this normal….. Would you see heterosexual couples
    doing this in public!?

    Perversion at it’s best, an obscene public orgy….. And they wonder why
    they are not accepted?

  • KeinJunkMail

    To the extent that the author’s point is that the government role in
    private speech is complex he has a point.

    However, regarding using speech as evidence for conduct, if the
    government uses its onerous investigations punitively, they are still
    against the law. The government would need to establish that it uses
    all speech as evidence equally, not just speech misaligned with the
    political stance of the administration. By using such speech as evidence
    of misconduct the government opens itself to a discrimination suit much
    like one might bring about in a sex or race case. Perhaps opening
    oneself to such a likely case to lose is not an efficient use of
    taxpayer resources.

    With respect to the second item that the government may be implicated in
    the speech of private entities, this is only a rational conclusion to
    draw IF the government starts paying attention to what these entities
    are saying in exercising its power. If the government does not use such
    information in making decisions, and citizens believe they do not (as
    they would have to in the Bayesian Nash equilibrium), rational citizens
    cannot attribute the speech to the government. Thus, not only is the
    author wrong on this point, but his very suggestion that the government
    begin paying attention to the speech of private individuals is what
    creates the problem that the speech could be attributed to the
    government in the first place.

  • David Blumenthal

    This is rambling by a supposed expert. Give me a break. After 1 paragraph, you were done-

  • Mark Craig

    Sounds like a recipe for more government bullying and ultimately tyranny. Does this mean that the Governor of Texas can investigate Starbucks to ensure that they are treating their Christian employees fairly?

  • sosueme001

    Tough questions? What is it about “congress shall make no law” that you don’t understand?

  • sosueme001

    Tough questions? What is it about “congress shall make no law” that you don’t understand?

  • Lauren

    Why is everyone fighting on behalf of Chick-Fil-A? They’re not fighting for their rights. They’re just sittin’ back like a bunch of backwoods rednecks sayin’ “ba-dee, ba-dee, we don’t want them fag boys gettin’ married, there.” Don’t fight for a company that won’t fight for themselves. You look like fools.

  • Melinda

    Interesting read: I do have 1 question…your statment that Joe’s Gay Bar & Grill would not need the same scrutiny for discrimnation as Chick Fil A…I beg to differ…it would seem to me that promoting themselves as a gay bar would implay that they would discrminate against straights. Discrimnation flows both ways, and that is something this country as seemingly forgotten.

  • Mark

    From now on I will eat at a Chick-fil-A if people are so filled with hate when others exercise their first amendment. That gays and politicians are the only ones allowed to have a first amendment right and to attempt to put good companies out of business or to harass them into silence.

  • skeeteril

    The fact of the matter is this. This is a nation of laws. Lawyers make these laws up and their livelyhood depends on litigation. It is the legal cycle of life, all controlled by lawyers, all making a living thru litigation. It doesn’t matter if it’s right or wrong, you told us that we have a right for legal representation, (thru a law of course). Works for you guys, you make out no matter what. Back to the story, how about it being illegal for politicians receiving any money from donations, special interests groups, their political parties even, and forbidden to set up a budget and vote on said budget because we might not like where the money is going? “”because the government would necessarily be implicated in the message that the monument conveyed. “” That only works sometimes, due to the pandering and waffling of politicians. This is a personal matter of the owner, no matter how he makes his money. As long as we have choice of religion in this country, nay…a choice of being able to think for ourselves, it is a non issue. The whiners should look elsewhere.

  • Terry Conklin

    I think much of your difficulty in struggling with the gray areas of this case result in mistakes government has made in the past. The Civil Rights Act of 1964 was indeed a landmark piece of legislation but it also created a load of inertia to the process of improving race relations in America. Most thinking Americans realize eventually that equality is best for all but the forcing of discriminatory government intervention (past public policy) into private opinion was foolhardy. What we got was a net loss of Liberty for all. Americans with more skin pigment genes became the resented beneficiaries of a “finger-on-the-scales” system. Like the Chick-fil-A mess, individual opinion became a punishable offense. I have resorted to a pigment label because it is nonsense to call an American whose forefathers came here centuries ago anything BUT and American even if those forefathers came from Africa and had the gene for darker skin. Calling them “Black”, “African American”, “Persons of color”, only serves to separate us into groups whose “Vote” is tallied as though we owe allegiance to that group above all. Americans who happen to be “gay” deserve equal treatment, not better.

  • http://www.facebook.com/brucedimon Bruce Dimon

    I cannot believe you skipped over religion and only talk about free speech. His speech stems from his religious belief. It that religious belief that is under fire here. The real question is can a government impeed a company run by a member of a certain religion? If they are Jewish or Muslim or Christian, can we claim their religion’s view of marriage makes their kind undesirable in our neighborhoods? You’re a lawyer and you focused on one point of law. Look at the big picture. Religious freedom is under attack anywhere a long-held religious belief is deemed “unacceptable” by the government.

  • Harvey

    I think it’s true, and TERRIFYING, that “. . . the category of ‘government speech’ has expanded over the years as courts have recognized that in a pervasively regulated market, very few decisions are purely ‘private.’” I would suggest that this is a very good argument against such “pervasive regulation.” If we’ve gotten to the point in the US where things are regulated so pervasively that the speech and actions of every private business are inextricably tied up with the government, there is no more truly private sector, and our freedoms of speech and religion (among many others) are truly on the endangered list.

  • ctmusc

    Dr. Dorf is in damage control mode for his outrageous liberal friends, who frequently try to silence opponents by using the fascist typeheavy hand of the government. He’s another example of how the legal community is more concerned with finding technical loopholes to deny basic constitutional rights than using common sense. Does he really think the founding fathers would buy into this? The constitution is a document designed to restrict the power of government, by defining its powers and putting checks on it. Dr. Dorf and his ilk, try to manipulate it to stretch over there ill thoughtout personal beliefs. No thank you, freedom of speech means freedom of speech.

  • Peter Erbele

    In order to communicate and agree, the “M” word must be avoided!I began smelling bias in the first sentence when Cathy’s statements were described “anti” versus “pro”. Words matter. Then when the completely irrelevant and highly incendiary straw man of ” the plight of the chickens whose slaughtered flesh Chick-fil-A laughingly sells” was injected, any hopes of thoughtful, objective analysis was forever lost. Now my only question is whose stooge is this Dorf and is Cornell and Justia.com really comfortable with being associated with his public propaganda?
    Meanwhile, back to thoughtful, objective analysis…
    If the gay community would swear off the word “MARRIAGE” in the ongoing efforts of getting Civil Unions universally recognized, the issue would be settled by now. By using the word “MARRIAGE”, the simple, direct political battle instantly becomes inherently religious. Most religious scriptures have much more to say about “MARRIAGE” than about sexual practices and orientations. Drop the word and win the war. Keep the word and keep the battle raging by stirring up controversy and keep putting up with time-wasting propagandists like Dorf.

  • DaveHop

    “But for government officials with limited resources, it would not be unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination somewhat more closely than the parallel claims of, say, Joe’s Gay Bar & Grill.”
    Of course the same holds true for Joe’s Gay Bar & Grill. Especially with the Government’s “limited” resources, it would make sense to investigate every known gay bar and hangout, because they would be more likely to discriminate against non-gay people. I mean if their are parallel claims in your scenerio. Having said that as long as I’m not being hurt nor is my property being stolen, I encourage private citizens to act in their best behalf, and the Government and it’s Officials to stay out of the market-place.

  • Michael J. Richard

    Mayors may not have the constitutional authority to deny a certain business a permit to operate within their city, but as the top representative of the citizens, mayors are the spokespeople, as to what types of businesses will be, or won’t be, welcome in their community.

  • Don

    Is it within my rights to say that I have concluded from your message that you are homosexual and therefore biased?

  • Geoff

    Although I agree that your point is valid and I also understand the difference between the definition of a law and spirit of a law, I still take issue with government regulating when free speech is ok. Free speech is one of the founding canons of this country, and once a government entity decides what is ok to say, and what isn’t, we stop being the land of the free and start being China. One of the things about free speech is that there are times when people say things that go totally against your core values. That is how free speech works, it allows us as a individuals to weigh the information and decide for ourselves. Unfortunately in these times it is far to easy for the rhetoric to overwhelm the core issue. Maybe we should change our slogan to “The land of the Sheep and home of the Naive”.

  • tommariner

    Well said. For now, the government blatantly is using its supreme powers to support certain activist’s causes. Instead of bowing out, and making sure civil discourse is followed. What happens when there is a backlash that is evident in the Chick Fil A thing? When the populace elects a government as extreme in the support of another viewpoint as the present Administration is and was to remake our “broken” country in their image?

    My worry is that the majority is getting very upset that the government is getting dictatorial and will stuff down chicken to prove a point. And the point is that if we elect a government that is as one-sided as the Obama / Reid / Pelosi one who rode roughshod over voters and citizens because they KNEW their way was right, but in the other directions, we will go from tolerance where it was, to activists AS the government, where it is, to activism on the other side which is oppression. Yes, the majority is now being oppressed in the name of “fairness”, but at least they have the option of voting out a government if they get sane and discover they are being trampled under. Minorities have no such option.

  • jpat34721

    “Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.”

    Seriously? So now adhering to the view held by a majority of Americans and the president himself until very recently, a view that has been affirmed in 31 state initiatives, is in your mind probable cause for criminal conduct? Gee, that wouldn’t have much of a chilling effect on the exercise of our first amendment rights would it?

    Most Christians who oppose same sex marriage are of the hate-the-sin love the sinner variety. Someone who is attempting to order their life in accordance with Scripture is more like, not less, to not only treat everyone with love and non-judgmental respect but to adhere to the Bible admonition to be law abiding citizens. You can’t selectively use one’s belief in a Biblical precept as a pretext for suspicion when their are many other precepts that would contradict that presumption.

    Suspicion based on one’s religion. Isn’t that the definition of bigotry?

  • http://twitter.com/FreeToSpeakOut vonSinkum

    Quotes (2): “But
    for government officials with limited resources, it would not be unreasonable
    to scrutinize Chick-fil-A’s claims of non-discrimination “, and :”My
    point is simply this: We should not be misled by the clear unconstitutionality
    of the proposed (and now abandoned) plans to deny Chick-fil-A its permits in
    retaliation for speech.”

    So the local
    government should scour this business digging for any hint of discrimination?
    The government needs to use the tools at hand to legitimize their own discriminating
    attitude against a company and employees that did exactly what? And, what is
    misleading about the Constitution? I could not offer my opinion that I don’t
    agree with the gay movement without being labeled as hateful, intolerant and a
    bigot. But wait, I didn’t say I was against gay marriage, I said I disagree
    with the movement, meaning I disagree with the tactic of “quelling the
    opposition” to gain impetus.

    This does not appear to be an unbiased
    article.

    Quotes (2): “But
    for government officials with limited resources, it would not be unreasonable
    to scrutinize Chick-fil-A’s claims of non-discrimination “,
    and :”My
    point is simply this: We should not be misled by the clear unconstitutionality
    of the proposed (and now abandoned) plans to deny Chick-fil-A its permits in
    retaliation for speech.”

    So the local
    government should scour this business digging for any hint of discrimination?
    The government needs to use the tools at hand to legitimize their own discriminating
    attitude against a company and employees that did exactly what? And, what is
    misleading about the Constitution?
    I could not offer my opinion that I don’t
    agree with the gay movement without being labeled as hateful, intolerant and a
    bigot. But wait, I didn’t say I was against gay marriage, I said I disagree
    with the movement, meaning I disagree with the tactic of “quelling the
    opposition” to gain impetus.

    This does not appear to be an unbiased
    article.

  • FreeThinker

    I don’t have an issue with him expressing his view. I have an issue with him speaking for God and scaring people.

    “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.”

  • mitch52

    This author spends the spends the whole article arguing tortured constitutional questions that with this sentence at the end of the article he rightly declares the previous drivel to be just mental masturbation…
    “…None of this is to say that government officials should have broad license to discriminate among businesses based on the speech of their owners, or even based on the anticipated response of the public to such speech.”

  • http://www.libertynewspost.com/ Liberty Newspost

    There is nothing complex about what Rahm Emmanuel said about Chick-Fil-A. Rahm Emanuel declared that Chick-fil-A did not represent “Chicago values”. There are no Government values -there are only government laws- stemming from the values of the people who created those laws. Mr. Emmanuel strayed into the realm of Fascism. In Democracies there will always be disagreements, living with those disagreements is the price we pay for our freedom. Once you start laying down legal logic like you’ve done to restrict a persons personal and religious beliefs you do not represent the American Constitution.

  • johne37179

    If government can exercise it power to discriminate against an individual or business because of a viewpoint it has (whether popular or not) there is no limit on the position government might take. If government has this power to discriminate against Chick-fil-A because of an anti-gay rights position, it also has the power to exercise the same discrimination against a business that is in favor of gay rights. If you claim to be tolerant — you can’t pick and choose what you are tolerant about — that is called intolerance.

  • PRichard

    IF a permit is ‘ REFUSED ” to built/open a C-F-A in those locations ~
    Ok mr mayor/ and anyone else You will be taken to court and SUED -
    also you are YOU are ~ vi – o – late – ting ~ the law…….
    Free speech – You do remember and understand THAT ! Don’t you ???
    Oh Well – maybe you don’t think it applies to U
    Couple of cities in the NorthEast needs a new mayor

  • Terrifying

    The comments by the mayors and the wild-eyed “can’t we all just get along?” crowd is a taste (pun intended) of the left in power. Want more intolerance of freedoms? Vote for democrats. They’ll send out the good squads checking your garbage cans for CFA bags, then send you to re-education camp. After they close your business.

  • Joseph Simmons

    “Again, it is possible that despite Chick-fil-A’s support for Exodus, the
    firm does not discriminate on the basis of sexual orientation at
    all—not even in jurisdictions where such discrimination is legal. But
    for government officials with limited resources, it would not be
    unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination
    somewhat more closely than the parallel claims of, say, Joe’s Gay Bar
    & Grill.”

    Following your careful mode of analysis, I must disagree! If the government is taking a closer look at those businesses that solely on a political point of view which does not hint at any illegality (opposing gay marriage does not mean discrimination against individuals in business activities). It may not be “unreasonable” in a general sense, but that doesn’t mean it’s constitutional. Similarly it’s not “unreasonable” to subject Muslims to more scrutiny at airports. As for the constitutionality I don’t know, but it does raise a lot of serious questions not answered by calling it “not unreasonable.”

    “Is there a difference in kind between, on one hand, the government
    granting or withholding access to government property—as in my military
    base and public park examples—and, on the other hand—the government
    restricting who may have access to private property—as in the action
    that Alderman Moreno threatened to take against Chick-fil-A?”

    Yes, there clearly is a difference. As you know, the Rust case was not about permitting access. It was a question of whether by accepting government funding, the government could impose conditions on the use of those funds. The Court expressly did not decide whether the “doctor-patient relationship should enjoy First Amendment protection.” The Court did decide that the government could make sure its money wasn’t subsidizing activities it did not want to fund. That is not to say Rust was an easy case. I appreciated O’Connor’s reliance on Keyishian to reject allowing the government the power to do something it could otherwise not do – contrary to the kinds of arguments made about the Commerce Clause in the ACA debate. Still, the particular facts on which Rust turned limited it to situations in which government was directly funding activity.

    I think your argument highlights the great error of the functional equivalency mode of constitutional analysis. I suspect the functional equivalency argument has grown out of the great expansion of federal power, leading very smart people to observe: notwithstanding the Constitution, what’s the real difference anymore?

    I still see a huge difference between denying a permit for business activity based on political speech and making sure government funding isn’t used to fund a particular activity. I see a huge difference between permitting placement of a monument and allowing a private business to operate. I think differentiating private and government speech is not as difficult as you suggest. At the very least, there is nothing about the Chick-Fil-A situation that would mislead us about some unknown and more difficult fact pattern.

  • Bryan

    I do not understand why some people are so quick to take a defensive stance.

    If you read the whole post (including the last paragraph), the author makes it clear that he agrees with the argument that retaliation is unconstitutional.

    Also clear in the last paragraph is the statement that even though the argument seems very one-sided, it is important from a legal perspective to explore other arguments since:
    “That is a rare real-world case that exhibits the clarity of a law school classroom hypothetical example. For the most part, however, the real world serves up harder cases, in which more complex constitutional analysis is needed.”

    In other words, legal studies require looking at the arguments from all angles, regardless of how clear cut they appear at first blush. This applies even if you end up at the same conclusion as your initial assumption.

  • Pingback: What is at stake for Chick-fil-A? | Protect Religious Liberty

  • Matt Mueller

    typical leftist. masks his extreme views in a veneer of reasonableness. “well of course its ridiculous to deny chick-fil-a based on their president’s opinion…..buuuuuttt…..”. and then turns around and says its ok. but were a corporation like home depot, that supports his viewpoint, to go through the same thing, there would be no but

 

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