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Violating the First Amendment in Defense of Gay and Lesbian Rights is no Virtue

[ 187 ] July 26, 2012 |

I think Glenn is completely right about this.  If a business is unwilling to comply with local and state civil rights laws, that’s a different matter.  Boycotts of Chick-Fil-A are perfectly defensible, and indeed if you must have fast-food chicken I would urge you to go to Popeye’s for both political and taste reasons.  But for a government office to deny a business who would ordinarily by eligible for one a permit based solely on the political views of an executive is wrong and illiberal, full stop.    If Chick-Fila-A are compliant with the standards that would be applied to other business, they should be permitted to operate in Chicago and Boston, and citizens in these cites should vote with their dollars if they don’t approve of the bigoted views of the company’s chief executive.

…Much more here.

Comments (187)

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  1. Professor Know-It-All says:

    I just read the article and was about to bring this to your attention.

    Mr. Cathey did not discriminate against anyone. Mr. Cathey has not committed any acts.

    Mr. Cathey simply offered up his opinion when asked and that was his crime…..disagreeing with the progressive left.

    • John (not McCain) says:

      Mr. Cathey has, in fact, committed acts. Donating money to organizations that seek to deny me equal rights under the law is an act, and if he and his company and his precious little dog suffer for it, tough shit. If conservatives wanna dish it out, then they can damn well take it.

      Fuck him, his chickens, and the drooling Jesus goons who support him.

      • david mizner says:

        By that reasoning, the state could deny you or anyone else a contract because you’d contributed to a gay rights organization.

        It’s always a bad idea to turn conservatives into free speech martyrs.

        • RB says:

          So, working to deny people civil rights is the same as promoting civil rights?

          • Richard says:

            It is for purposes of the First Amendment and the guaranty of free speech. The whole point is that the government cant discriminate against you based on your point of view even if your point of view is a hateful or disfavored one.

            • RB says:

              But it’s more than the point of view, here. It’s actively financing people who not just lobby to harm others, but -actively- harm others. Exodus International, for example, has a long track record of harming the people that come to them for their sham therapy. And as for the FRC and their activities in Uganda, it’s horrifying.

              How is it a question of speech, when their financing actively harms people? Does the first amendment now cover someone’s fist upon contact with my face?

              • Richard says:

                Doesnt matter. The First Amendment protects his ability to contribute to organizations that are hateful even when those organizations cause emotional or psychological harm to people.

                Its simply not analagous to him punching you in the face. If he contributed to a group (with the requisite intent) and the group committed phsyical assualts on people, he might be subject to criminal prosecution but thats not the case here and, in any case, the solution is a criminal prosecution, not denying business permits.

                • david mizner says:

                  It’s similar to where states have attempted to prevent the Klan from adopting highways.

                • RB says:

                  As I’ve said before. I fail to see the benefit in allowing a permit to an organization that actively seeks to harm the constituency of that ward. It seems to run counter to the rights of the constituency.

                • Richard says:

                  Free speech rights as guaranteed by the First Amendment trump the rights of the constituents. Otherwise a majority is always going to be able to silence a minority.

                  How would you feel if a Christian community denied a permit to a company that actively supported gay rights (Apple, for instance)? They would argue that thoes awful sodomites pose a risk to children and to the sanctity of marriage and therefore harm the constituents. The First Amendment very clearly has been held, time and time again, to mean that any discrimination based on the viewpoints or contributions of an individual is not permitted.

              • wengler says:

                Are we back to money = speech? Because that argument holds no water with me.

                • Hanspeter says:

                  There’s no evidence that Chick-fil-a has ever broken the law with regards to not providing goods to or discriminating against non-heterosexuals. The argument is with the owner but is being taken against the company he happens to run (yes, the money being used comes as a consequence of owning that company).

                • Scott Lemieux says:

                  So, you believe that if Mississippi passed a law banning any contributions to the NAACP, this would not raise any First Amendment issues?

      • Danny Darko says:

        Fuck him, his chickens, and the drooling Jesus goons who support him.

        This is the biggest problem of all and that is the inability to hold an honest discussion on issues like this. This commenter is not interested in discussing the issue. He is interested in demonizing his opponent and screw the issue.

        So, working to deny people civil rights is the same as promoting civil rights?

        This is the next biggest problem and that is imputing ‘rights’ when none has been established either by legislation or by the courts. They just think they *should* have a right and they speak from a false premise.

        • MAJeff says:

          What kind of dialogue are we gay folks supposed to have with people who think we should not exist, like Cathy* and the troll who started this thread? Those two people have nothing of value to say about LGBT people, as their aim is to destroy

          *His donations to Exodus and FRC, among others, give away the game here.

          • Uncle Kvetch says:

            What kind of dialogue are we gay folks supposed to have with people who think we should not exist, like Cathy* and the troll who started this thread?

            Thank you, MAJeff.

            Seriously, Danny…spare us the concern trolling. I’ll side with the ACLU when they support the right of the Klan to march. It in no way follows that I want to have a “dialogue” with the Klan about the inherent inferiority of black people, nor that such a dialogue would produce anything of value.

          • Professor Know-It-All says:

            We’ll meet again,
            Don’t know where,don’t know when.
            But I know we’ll meet again, some sunny day.

            • MAJeff says:

              Bullshit.

              The organizations that Cathy contributes to, and that have been called out here, move well beyond marriage.

              The “ex-gay” movement is an anti-gay hate movement, and organizations like FRC that seek to reinstill anti-gay laws like DADT and support DOMA are hate groups. Yes, the basis of these groups is pure animus, hatred.

              • Professor Know-It-All says:

                We’ll meet again,
                Don’t know where,don’t know when.
                But I know we’ll meet again, some sunny day.

                • MAJeff says:

                  And Clinton and the Dems are now trying to get those things reinstated?

                  Yes, those were based on animus, hatred if you will. Thing is, these folks have gotten over it, while folks like you, Tony Perkins, and Don Cathy have become more extreme in their bigotry.

                  Yeah, Bill Clinton was a bigot. He’s getting over it. You, Cathy and Perkins never will, though. It’s too deeply wedded to who you are.

                • Clinton caved to haters to try to cut a deal when he couldn’t get what he wanted.

                  Yes, the people he caved to are haters.

                  This is not remotely complicated.

                • Malaclypse says:

                  This is not remotely complicated.

                  To Jennie, 2 plus 2 is complicated.

            • Holden Pattern says:

              Please explain EXACTLY HOW you are harmed if two adults of the same sex can marry. And please explain on what basis other than “TRADITIONRELIGION” you can justify them not having the same rights you do.

              Bigot.

            • DrDick says:

              I think you need to dial it back and understand that the issue is the definition of marriage and little else.

              Nobody gives a shit who you fuck.

              Y’all are the ones who need to dial it back and yes there are a shitload of folks on your side who care very much who other people fuck and want to punish them for it.

              As to the definition of marriage, it is a purely civil institution concerned with the allocation of legal rights and privileges, particularly property rights and rights in children. I see absolutely no reason not to grant that to same sex couples.

            • I think you need to dial it back and understand that the issue is the definition of marriage and little else.

              Nobody gives a shit who you fuck.

              Dude, what world do you live in?

              Yeah, homophobia and the discrimination experienced by gay people is only about a dry legal question. Nobody actually has a problem with gay people.

              Yeah, that’s the ticket.

            • Rarely Posts says:

              “Nobody gives a shit who you fuck.”

              I wish that was true, but fourteen states* have laws on the books criminalizing gay sex. The Supreme Court found those laws unconstitutional in 2003 in Lawrence v. Texas, but it’s clear that a number of people do care about who we fuck and would criminalize it if those laws could survive constitutional scrutiny.

              *Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia.

        • timb says:

          Chicago city ordinances specifically protect sexual orientation, so, whereas Scott may be right or wrong, it’s wrong to say there is no legislative right here. Chicago recognizes one

          • MAJeff says:

            So do the state laws of Massachusetts and Illinois. And Massachusetts recognizes the right to marry, while Illinois recognizes the right to enter a state-sanctioned and -recognized relationship.

            But, yeah, those are all imagined.

          • Richard says:

            But its not illegal, nor could it be illegal, to disagree with Chicago’s protection of sexual orientation (as long as you comply with the law). Opposing the law is protected under the First Amendment. Giving money to groups that oppose the law and work legally to repeal the law or to give legal assistance to those who violate the law is protected. Neither the mayor nor the alderman can take steps that would discriminate against person or corporations that oppose the law. this is just fundamental First Amendment law. Its not even close.

            • Timb says:

              Granting a zoning ordinance enhances the community to control the development. You are arguing a communal right versus a corporate right, but you keep crouching in the language of a individual rights. This isn’t about Cathy; it’s about his relationship to the company and what the company wants

        • DrDick says:

          This is the next biggest problem and that is imputing ‘rights’ when none has been established either by legislation or by the courts.

          Really? You really want to go there? I am not even gay, but go fuck your self righteous self with a rusty chainsaw. Save your concern trolling for Red State or any of the other rightwing hate sites.

        • Malaclypse says:

          This is the biggest problem of all and that is the inability to hold an honest discussion on issues like this whether white people should be forced to eat near Negros. This commenter is not interested in discussing the issue. He is interested in demonizing his opponent and screw the issue.

          You know, you are right. I’m genuinely not interested at all in “honest discussions” on whether or not we should treat humans like humans.

          • DrDick says:

            Exactly! I grew up under segregation and Jim Crow in Oklahoma in the 50s and 60s when African Americans did not have rights. There is absolutely no difference and I have no use for or desire to talk with anyone who would deny basic human rights to anyone.

      • efgoldman says:

        Donating money to organizations that seek to deny me equal rights under the law is an act….

        Sorry, but too bad. I work for a major financial/mutual fund/brokerage institution (not one of the Evil Ones). If I donate to Obama or Elizabeth Warren, should they be able to fire me?

        • Richard says:

          Since you don’t work for a governmental agency, the First Amendment doesn’t apply. So the question of whether you can be fired depends on state law protections. If you are not protected by state law, the answer is they can fire you (although I know of no big corporation that would actually do that)

        • Pseudonym says:

          I mean, no, I don’t think they should fire you in that case. On the other hand, if you were publicly donating to Scott Roeder for President or marching in neo-Nazi parades I’d want to fire you if I were in their place.

    • MAJeff says:

      And his company contributes to anti-gay hate organizations like FRC, Eagle Forum, and Exodus.

      • Richard says:

        And no one is forcing you to buy his chicken. Boycott him. Plain fact however is that he has a First Amendment right to have the state not discriminate against him because of ANY views he might have, even if those views are hateful. The City of Chicago is totally wrong on this and will lose any lawsuit Chick-A-Fil might file.

        • MAJeff says:

          I’m not on board with denying permits (although I see little problem with the letter Menino wrote, so long as it stops there).

          I was just reminding our resident cracker that this is about more than just a couple statements. Chick Fil-A is funding far right anti-gay hate groups. That’s undeniable, and it’s important context for this broader discussion.

          • Richard says:

            Then we’re in agreement. I think the Chick-a-Fil president is a despicable person. But the government can’t discriminate against him or his company in any way because of those hateful views and even for his hateful actions (as long as they don’t violate anti-discrimination in the workplace laws)

            • wengler says:

              I know Chicago, and Chicago would gladly deny business permits for someone that donated to the Klan. So you can certainly argue that it is also unconstitutional, but permit and zoning law are places where cities have pretty wide authority.

              • Davis X. Machina says:

                Marching permits to Nazis, in the suburbs, not so much…

                • wengler says:

                  They got their permit but they were smart enough not to march.

                • Richard says:

                  They actually marched in Chicago, not Skokie, after Chicago granted them a permit after the SCOTUS ruling in the Skokie case.

                • wengler says:

                  The point is they would’ve gotten their asses beat if they would’ve marched in Skokie.

              • Richard says:

                If someone could prove that the denial of a permit was based on a Klan contribution and not on other factors, then that company would win any court case.

                • wengler says:

                  After spending years and hundreds of thousands of dollars of money they most likely don’t have.

                • Craigo says:

                  Amazingly enough, there are legal organizations that fight discrimination such as this pro bono.

                  What a country!

                • wengler says:

                  Sometimes. The ACLU doesn’t take every case.

                • Richard says:

                  “After spending years and hundreds of thousands of dollars of money they most likely don’t have.”

                  Chick-A-Fil has the money to spend fighting a permit denial, would win and, depending on Illinois laws, might be able to get Chicago to pay their legal bills.

            • Joey Maloney says:

              Wait, is the victim here supposed to be Cathy or Chick-Fil-A?

              Nobody’s violating Cathy’s rights. He’s free to spout his ignorance as loudly and as long as he wants.

              So, what right does the corporation have that’s supposedly being violated?

              • Scott Lemieux says:

                The right not to be subject to viewpoint discrimination by the state.

                • Pseudonym says:

                  Corporations are people, my friend.

                • rea says:

                  It doesn’t matter, for this issue, whether corporations have individual constitutional rights, since Cathy’s First Amendment rights would be violated by the government silencing his corproation.

                  Look, it’s pretty simple. Cathy’s position is contemptible, but there are some tools you can’t use to oppose him. You’re not allowed to shoot him, for example. And you can’t use the government to shut him up.

                • Exactly, rea. It’s Cathy’s personal, individual speech that is at the center of this, not his business’s.

      • Professor Know-It-All says:

        We’ll meet again,
        Don’t know where,don’t know when.
        But I know we’ll meet again, some sunny day.

        • MAJeff says:

          fun how these folks reduce everything to marriage only, as opposed to the fraud of “reparative therapy” or the broader anti-gay agenda of these groups.

          Try harder, cracker.

        • Jay B. says:

          Does disagreeing with those who wish to change the traditional meaning of “marriage” mean HATE? Is that fair?

          In this case, yes. Denying simple legal rights to two consenting adults for no reason at all? Discrimination. Bigotry. Hate. Whatever you want to call it. Now, I’ll defend your right to find it so icky you go on and on and on and on about how gross it makes you feel that two dudes love each other enough to marry — but it’s plainly irrational, simple bigotry. Gay marriage is just as legit as hetero marriage in almost every respect. Enough of the dodging. If you are against it, even though it harms you not at all, you are a simple and stupid bigot.

        • Spuddie says:

          Does disagreeing with those who wish to change the traditional meaning of “marriage” mean HATE?

          Yes, since that “traditional meaning” is not traditional and is merely a euphemism for treating gay people like second class people.

          And while we are at it, since they also support the judicially sanctioned killing of gays in other countries, the answer is still unequivocably YES.

    • cpinva says:

      and the two gentlemen in question simply stated their personal opinions. i have yet to see any tangible evidence that the cities in question have illegally denied said business a license to open up shop.

      as usual, free speech rights only go one way, with conservative droolers. anyone else states their opinion, and their denying others their rights. hogwash, until their is an actual act.

      and scott, you should know better. you failed to point out an actual act cited by mr. greenwald, probably because one hasn’t been committed.

      • Professor Know-It-All says:

        We’ll meet again,
        Don’t know where,don’t know when.
        But I know we’ll meet again, some sunny day.

    • Cody says:

      Is Rahmn Emmanuel part of the Progressive left? That’s generous!

      Anyways, I don’t think there is anything wrong with the Mayors coming out saying they’d prefer not to have Chick-Fil-A in their city.

      However, they can’t deny a permit on that basis. But sometimes permit applications get lost in the mail, or the bureau is really slow at processing.

      And for Chick-Fil-A, it sounds more like the mayors are saying “don’t come here, it won’t be worth the trouble”.

  2. Glenn says:

    So glad to see you and Glenn and others weighing in on this. I made a comment along these lines yesterday on a gay blog and got pummeled as a “troll.” Was beginning to think I was really missing something.

  3. x says:

    I think you could be wrong if the city or state, etc. has a non-discrimination statute. They state an intention to discriminate. I don’t know if Boston has one. Some cities do. If a business says ‘we revile such and such people’ and one believes their business practices will discriminate (which is extremely reasonable) then by all means deny them a permit. A business permit is not a free speech right to my knowledge.

    • david mizner says:

      There’s no proof of discrimination, and bigoted comments can’t be considered as such. What’s more, Rahm and others admit that the issue is the offensive speech; they don’t even try to frame it as a discrimination issue.

      • charles pierce says:

        I’m not sure Menino’s done anything except tell C-F-A that they’re “not welcome” in Boston, which he’s well within his rights to do. (Certainly, Bloomberg would say the same thing to a gun store in Times Square.)Once he starts using his office to block them, I’m with you.

        • Richard says:

          I took Emmanuel’s statement to mean that the city would try to block or impede permits. Something the First Amendment clearly would not allow.

          • Glenn says:

            The Alderman for whatever ward it was specifically said he was exercising his aldermanic privilege to block CFA from getting a permit, and doing it because of their support for antigay causes.

            I agree with Charlie that Menino’s statements — so far — don’t cross the line.

          • RB says:

            …You do know there’s a Chik Fil A in Chicago, Right? It’s in the loop. So apparently impeding hasn’t happened.

            However, in Logan Square (1st Ward) Alderman do have final say on permits. It’s aldermanic privilege and goes back generations. And he’s doing what he thinks is right for his ward, and by and large, his ward agrees. Why support an organization that actively seeks to harm your constituency?

            • Glenn says:

              This is more or less the same answer that the Alderman gave — it’s an exercise of discretion — and it’s just as misguided (though it’s of course far worse for a government official to be so ignorant of the law). The fact that there’s government discretion doesn’t mean you can exercise that discretion to punish people for their views.

              • Richard says:

                And its illegal if it is based on the viewpoint of the president of Chick-A-Fil. Lets say an alderman used his discretion to block any black owned business in his district – are you claiming that this would be permitted?

                • RB says:

                  So you’re equating financing the active harm of constituents and the elimination of their civil rights with preventing others civil rights?

                  This is where I get lost. The ward voted him in. They voted him in part to represent their views. When a company asks to come in that not only doesn’t, but seeks to harm the constituency, why would it be allowed?

                • Richard says:

                  Its simple. An elected official can’t violate the Constitution. And the constitution says that you cant discriminate against someone because of his or her views. Doesn’t matter if he was elected unanimously. Just like Governor Faubus wasn’t allowed to stop black kids from entering the University of Alabama despite the fact that he was elected and had the overwhelming support of his constitutents. Just like the mayor of an overwhelming Christian town couldn’t prevent a gay couple from living there even if 99% of his constituents wanted the couple to be run out of town.

                • Craigo says:

                  “This is where I get lost. The ward voted him in. They voted him in part to represent their views. When a company asks to come in that not only doesn’t, but seeks to harm the constituency, why would it be allowed?”

                  Because we have chosen to protect the fundamental rights of unpopular minorities from the actions of democratic majorities. An alderman’s constituents can’t decide that the First Amendment no longer applies in their ward.

                • Hogan says:

                  Just like Governor Faubus wasn’t allowed to stop black kids from entering the University of Alabama

                  You’re thinking of Wallace. Faubus was Arkansas.

                • Hogan says:

                  Whoops. Strike that as redundant.

                • Pseudonym says:

                  “And the constitution says that you cant discriminate against someone because of his or her views.” Where? Seriously. I think you can make an argument that the equal protection clause of the 14th Amendment, but I’m not sure that applies to every possible form of viewpoint discrimination. (IANAL, in case it’s not painfully obvious.) I’m not supporting Rahmbo’s decision, but I’d like to see a concrete argument laid out for why it’s unconstitutional.

            • efgoldman says:

              And he’s doing what he thinks is right for his ward, and by and large, his ward agrees. Why support an organization that actively seeks to harm your constituency?

              Well, he and his constituents are welcome to picket the construction and picket and boycott the store when it opens, and try to force cit out of business economically. But deny the permit? Nope. That’s a loser in court any time.

              • efgoldman says:

                @ Richard

                Just like Governor Faubus wasn’t allowed to stop black kids from entering the University of Alabama despite the fact that he was elected and had the overwhelming support of his constitutents.

                [pedant] Faubus was Governor of Arkansas when Eisenhower had to nationalize the National Guard to enforce desegregation of Little Rock High School. George Wallace stood in the schoolhouse door in Alabama.[/pedant]

                • Richard says:

                  Youre right. I was typing too fast and confused Arkansas with Alabama. Meant to say Faubus and Arkansas (although Wallace and Alabama would have worked for my point just as well)

          • wengler says:

            You didn’t follow the Wal-Mart saga here in Chicago, did you?

        • david mizner says:

          Well, Menino said:

          Chick-fil-A doesn’t belong in Boston. You can’t have a business in the City of Boston that discriminates against a population.”

          Is that not “using his office to block them?” Is it a violation of the 1st Amendment only once he uses the machinery of the state of block them? I don’t think it’s clear cut.

          Let’s say a mayor declared that books on evolution don’t belong in my city. Is it a problem only if and when he actively tries to censor them?

          • Glenn says:

            While I don’t mean to minimize the fact that when Menino says something like that, it’s of a different character than if I did it (even if I lived in Boston), and that there’s not always a clear line between taking a stand and making threats. But I think you have to have the exercise of governmental power or, at least, the implicit threat of doing so. Not sure Menino has really crossed that line, but I can see the argument to the contrary.

            • Glenn says:

              Although, if this quote (which I just saw on GG’s place) from Menino is accurate:

              “If they need licenses in the city, it will be very difficult. . . . ”

              Then I think I’d probably have to walk back my opinion that he hasn’t crossed the line.

              • Cody says:

                Of course, aren’t we using the argument that the Chick-Fil-A President’s anti-gay speech is protected.

                Why isn’t the Mayor’s anti-Chick-Fil-A speech protected? He hasn’t done anything. Just like Chick-Fil-A employees haven’t discriminated.

          • cpinva says:

            when you show me tangible proof that he’s committed an act, denying a permit based solely on protected speech, then maybe i’ll get upset. until then, meh.

          • charles pierce says:

            Yes. There is a bright constitutional line between speech and action. It’s why Byron DeLa Beckwith didn’t go to jail for calling Medgar Evers names, but for shooting him in the back.

        • tonycpsu says:

          Menino (and Bloomberg) have actual power to turn “you’re not welcome here” into “you’re not here.” I can’t see this as anything but an implicit threat, only implicit because being explicit about it denies them the right to later use some other phony justification about why their permits were denied.

          Let’s attack bigotry/discrimination in the courtrooms, not on zoning boards.

          • charles pierce says:

            Once he does it, I’m with you.

          • Cody says:

            Doesn’t the CEO of Chick-Fil-A have the power to turn “I don’t like gays” into
            “my employees should be disruptive to gays buying stuff in Chick-Fil-A”

            He is after all the boss, and I’d think has more power in the company than the Mayor does in the city.

        • Duvall says:

          I’m not sure Menino’s done anything except tell C-F-A that they’re “not welcome” in Boston, which he’s well within his rights to do.

          Well, even in Menino himself does nothing, you have to factor in the possible effect on lower city officials that have to interact with a new business in town. Probably not a good idea for the head of an instrumentality of the Commonwealth of Massachusetts.

          And there’s a big difference between telling Chick-fil-A they aren’t welcome because of the political views of the company’s president and telling all fried food restaurants that they aren’t welcome.

          • charles pierce says:

            Nope. He’s within his rights to tell Cathy that CFA is “not welcome” in Boston because they’re homophobic morons. He just can’t act on that. Hell, he can lead the pickets once they open.

      • Anderson says:

        Can’t be too hard to have some people submit applications at area Chick-Fil-A’s, where the same guy/gal claims to be straight at one location and gay at another. Could be interesting.

        • Uncle Kvetch says:

          Family members of prospective operators–children, even–are frequently interviewed so Cathy and his family can learn more about job candidates and their relationships at home. “If a man can’t manage his own life, he can’t manage a business,” says Cathy, who says he would probably fire an employee or terminate an operator who “has been sinful or done something harmful to their family members.”
          [...]
          The parent company asks people who apply for an operator license to disclose marital status, number of dependents and involvement in “community, civic, social, church and/or professional organizations.”

          • Glenn says:

            Well, I would agree that if Chick Fil A limits its franchise opportunities to Christians, or married persons, as that article implies, then even though I’m not sure that’s actually illegal anywhere (franchisees not being “employees”), I’d at least say that you would have a much clearer case that blocking them was not about political views but discriminatory acts.

            But I would point out that is not why either Menino or Alderman Moreno said they were blocking, or threatening to block, the company.

          • Pseudonym says:

            Isn’t marital status specifically prohibited as a category of question that prospective employers can ask about? Or is that only in California? I swear I’ve seen that listed as a prohibited question.

    • djw says:

      They state an intention to discriminate.

      No, they state an intention to attempt to influence politics to influence the law to make the state more discriminatory. This distinction doesn’t seem privial.

      • djw says:

        Nor does it seem trivial.

      • RB says:

        So if I’m hit in the face, it’s going to matter whether it’s from the individual, or the people he financed to do it for him?

        On my end, I still get hit.

        • Richard says:

          No. If he contributed to an organization knowing that they would hit you in the face, he is civilly and criminally liable. But calling you names, inflicting psychological and emotional harm on you, trying to deprive you of rights to which you should be entitled by influencing voters or other legal means is not the same as hitting you in the face. You may not like that but that is how the constitution has always been interpreted

          • Or, to go farther, if he creates, seeds, and gives billions of dollars to a new political party that holds as the sole plank in its platform that gay sex should be illegal and punished by drawing and quartering…it would still be totally legal and you couldn’t use the government to discriminate against his business.

  4. RB says:

    I’m trying to understand how giving a permit to an organization that actively lobbies against the rights of your constituents, especially in areas with active non-discrimination statutes works.

    And to what benefit does a political leader gain by bringing in a business that’s going to be regularly boycotted by those same constituents?

    Voting with your dollars is one thing, but I also voted with my votes. And my votes are represented by the actions of the good Alderman of the 1st ward and the mayor of chicago.

    • njorl says:

      I’m trying to understand how giving a permit to an organization that actively lobbies against the rights of your constituents, especially in areas with active non-discrimination statutes works.

      You give them a permit. They set up business. That’s how it works. Just the same as if they were not using their right to free speech to be jerks.

      And to what benefit does a political leader gain by bringing in a business that’s going to be regularly boycotted by those same constituents?

      Enforcement of laws is not solely for the benefit of political leaders.

      • RB says:

        Okay. Then explain to me the benefit of the ward allowing a business into its community that actively seeks to harm the constituency, and has been very clear that this is what they want to do.

        • Who cares what the benefit of honoring the first amendment is to the majority?

        • Then explain to me the benefit…

          There is not requirement that a business provide a “benefit” for it to be avoid being shut down or run out of town by the government.

          You keep talking about this as if Chik-fil-A opening a location in Boston is some kind of government initiative being carried out by the City of Boston.

    • Cody says:

      Maybe what we need is a more concise reasoning on building permits. What are grounds for refusal? Do companies really have a right to open a business wherever they want; why would they need a permit at all then?

  5. I thought the mayor’s letter was very carefully worded. It did not deny C-F-A anything, just said they were unwelcome.

    • Pucker says:

      This is probably correct, but still potentially raises a due process issue. Applicants for use permits (in the hearing for which a zoning board sits as a quasi-judicial body) are entitled to a fair hearing. If the Mayor has a vote on the board that decides the case, Chik-Fil-A has an argument that his statement indicates no intention of providing a fair hearing. By itself, the statement wouldn’t suffice, but in combination with other statements made during public testimony and the board’s deliberation….

  6. Scratchie says:

    Menino has already walked back his prior comments and admitted that he has no actual power to prevent them from opening a store here.

    http://www.bostonherald.com/business/general/view/20220726menino_says_he_cant_actively_block_chick-fil-a/srvc=home&position=0

    He’s certainly free (and more than welcome) to express his opinion that their corporate values do not align with our civic values here in Massachusetts and Boston, and good for him for doing so.

  7. The problem in Chicago is that, to a first approximation, *no* business is “ordinarily eligible” for the relevant permits. “Aldermanic privilege” is the right of the alderman for each ward– not the city council corporately, but just the local member– to waive the impossible-to-comply-with zoning rules, at his or her sole discretion. That discretion is used to reward friends, punish enemies, and extract resources all the time.

    You (and GG) are entirely right on the matter of principle– but I predict that a court will have a hard time working out how to treat “the withholding of a discretionary waiver” as the state punishment that it actually is.

    • wengler says:

      This first amendment may be the first amendment, but Chicago is Chicago. I would assume that Emanuel doesn’t give a shit either way, but it’s good politics for him.

    • Pucker says:

      Has anyone attempted a serious legal challenge to Aldermanic privilege in a land use context? From what you describe, it has “standardless discretion” written all over it.

      • Those who would have standing are normally people who are going to want to do business in Chicago. Filing that suit would be very, very bad for their ability to do so. To the best of my knowledge no case has ever gone forward.

        • Pucker says:

          Understood and agreed from a political perspective. It just seems that there is almost always one…. Even a couple of developers in cities like Beverly Hills have made run at it.

    • Jim Lynch says:

      Being a Chicago alderman sounds like a gravy job.

      I admit to being surprised, however, that the people of Chicago tolerate that type of power in the hands of any one person. It’s certainly fascinating dynamic.

      • It’s a terrific scam, and a key part of the machine’s machinery. Since each local alderman is only in the position of *allowing*, not forbidding, each one can say “I’m here to help.” And they’re also savvy enough politicians that one of the key ways of getting their approval is to give a bunch of money to their campaigns and/or their preferred neighborhood/ community groups.

        The symbiotic relationship between the local alderman’s apparent ability to help out and an overall zoning code that makes it impossible to do anything according to known and predictable rules is pretty opaque to the voters.

      • wengler says:

        Almost as good as being a US Senator.

    • Cody says:

      I always wondered why people said Chicago politics were so corrupt. This pretty much explains it.

  8. wengler says:

    What if you considered this another way and had a business who funneled a bunch of money to apartheid South Africa. Then are you so unjustified in denying it access to your city? I’m all for the ability of municipalities to make their own decisions especially considering retrograde businesses like Wal-Mart.

    • Richard says:

      If your decidion to deny a permit is based on their contribution (assuming the funnelling was legal) and nothing else, absolutely not allowed. You are discriminating against a company based on a political viewpoint which it has a right to hold. You may not agree with that but the First Amendment has uniformly been held to prohibit governmental discrimination based on a point of view.

      • wengler says:

        I have no strong point of view on this, but from a political standpoint I would think it would be easy to trade a point-of-view restriction for one not ostensibly based on POV. We’ve seen this in any number of cases, from the living wage vote here in Chicago against Wal-Mart to the impossible rules governing abortion providers down South.

        • Scott Lemieux says:

          the impossible rules governing abortion providers down South.

          I, for one, don’t think these should be taken at face value either.

        • Richard says:

          There are all sorts of ways to stop Wal-Mart from moving in to a location – environmental impact, effect on competition, history of past labor violations, etc. But you can’t base it on the the viewpoints or political contributions of the company or its owners

      • Timb says:

        If I contributed to a Muslim charity, then the Federal govt might declare you a terrorist…so, the key is not to be a terrorist.

        In other words, be careful throwing the term absolute to “the right to free speech,” since there isn’t one

        • wengler says:

          The right of free speech is having your Chick-fil-a business permit approved promptly, while having your march permit denied after months of waiting.

          You know time, manner, place. The first amendment doesn’t give you the right to yell fire! in a crowded theater, etc. I remember all of these arguments when people here were supportive of throwing thousands of people in jail for camping out in public parks.

    • Scott Lemieux says:

      What if you considered this another way and had a business who funneled a bunch of money to apartheid South Africa. Then are you so unjustified in denying it access to your city?

      That would also be wrong. “Free speech for me and not for thee” is indistinguishable from just opposing free speech altogether.

      • Glenn says:

        Yeah, I’m not so sure about that Scott, though that’s partly the ambiguous nature of the question. Supporting political causes (through donations or otherwise) is one thing, and I fully agree that you can’t take that into account in doling out government benefits. But “funneling money to apartheid S. Africa” could also mean (or have meant, back in the day), funding the actual oppression of black South Africans. That strikes me as different.

        • Pseudonym says:

          But the key question is, who is making that decision, and on what basis? I mean, the Notional Organization “for” Marriage could argue that supporting equal rights entails funding the actual oppression of God-fearing heterosexual Americans.

      • wengler says:

        It wasn’t the greatest example because at some point it would’ve been against federal law. I just think it’s funny for as much of my property has been destroyed and livelihood effected for voicing unpopular sentiments, that a mayor making it a little bit harder for a multi-million dollar company that bashes gays to operate is what I should really care about.

        I just don’t care if Chick-fil-A gets some hassle. I learned long ago that free speech is only for those with money.

        • sparks says:

          I once said something about this blog and its fiendish legalism. Just another example of same. Free speech is a worthless freedom if you need piles of money to exercise it. Once Joe Nobody is arrested for something falling within the First Amendment, we’ll see how many pro bonos will run to help him, especially if he’s no cause celebre. There’s a corporate First Amendment and a public one, and they have little to do with each other anymore.

          • Richard says:

            Even if chic-a-fil was poor, there are any number of conservative law foundations that would represent it on a pro bono basis if it were denied an operating permit on the grounds set forth by Menino and Emmanuel. This isn’t a close case. You can’t deny a permit to a company because its president (or even it) promulgates views that you find repugmant. This isn’t fiendish legalism. This is bedrock First Amendment law.

            Conversely, if a conservative city denies a permit to a company because its president has donated money to left wing and gay causes, the ACLU and other groups will be there to mount successful pro bono challenges.

            • Timb says:

              Yes, you can deny a zoning variance based upon the likelihood such business actively intends to violate city ordinances

  9. Law Spider says:

    Oh, for pete’s sake — this is an uproar over nothing. The statements by Boston’s mayor was almost certainly a POLITICAL move, not a legal move. (That isn’t to imply a lack of sincerity; he was making his view clear to his constituents.) Unlike, say, the idiots in rural Kentucky who all-but-stated in their county/town records that they were posting the Ten Commandments to honor Christianity (see McCreary v. ACLU), I am taking as an (almost) certainty that the mayor of Boston and HIS LEGAL STAFF are well-aware of basic Due Process. If the mayor WERE planning to (under the radar) discourage the Boston zoning board from granting Chick-Fil-A permits, he certainly would NOT have sent this letter. The permit would simply be consistently delayed and denied (for all but the least feasible locations, perhaps), for all sorts of technical reasons.

    I would put $1,000 on the fact that Chick-Fil-A’s permits will be granted promptly (or denied for clear, unimpeachable reasons).

    • Richard says:

      Very likely the case. Permits will be granted because the cities will have no other choice

      • Law Spider says:

        That’s actually not true; cities have incredibly wide discretion on issues of zoning and planning. That is why the Mayor COULD have tried to conspire with the zoning board to deny Chick-Fil-A, if he had done so with subtlety. (Please note that I would find such action appalling.) However, discretion ends where the Constitution begins, which is why the Mayor wouldn’t have purposely created evidence of unconstitutional discrimination.

        • Pucker says:

          This. If the City is smart enough to create a robust administrative record, it provides itself enough lawful “outs” to prevent a successful discrimination claim.

        • Greg says:

          Doing it quietly defeats the purpose of doing it at all. One more or less Chick-Fil-A here or there is meaningless in the grand scheme, so he wouldn’t have had a tangible impact on their business nor a tangible improvement in the welfare of his LGBT constituents. Doing it publically is the only way to actually have the chilling effect, and get political credit for opposing them.

    • Agreed. The letter was a pretty obviously planned “fuck you” intended to be seen by all. And as such, I applaud it. It uses public shaming to raise awareness of CFA’s unsavory bedfellows, and makes legal protests (boycott) all the more likely. I for one, probably wouldn’t eat CFA often since they are not very common here in LA, but now I DEFINITELY will not spend a cent on that place. And yeah, it’s hard for me to imagine that the Mayor’s office isn’t aware of the limits of it’s power.

    • Glenn says:

      If you read the full thread, I think you’ll see that the bigger issue is not Menino and his comments (which he has since walked back), but Alderman Moreno in Chicago who said flatly he would block a permit for CFA based on the owner’s antigay comments and support for antigay causes. And in Chicago’s system, he apparently has the legal power to do so, so it’s not just political mouthing-off.

  10. Rarely Posts says:

    I agree that discriminating against the businesses because of the executive’s personal expenditures is wrong, but don’t elected officials discriminate in favor of (or against) businesses based on their executives’ contributions to political causes all the time? I think this highlights one of the problems with the money = speech paradigm. If you allow infinite money in the political process on the basis that it’s free speech, then you’re going to have discrimination based on that speech.

    Executives and businesses give huge contributions to candidates/political causes allegedly because they support their politics/policies, and then candidates favor those businesses and individuals allegedly because of ideology. This occurs all the time-either through legislative action or through selected executive action on discretionary decisions (speed of permit processing, enforcement decisions, etc.).

    Here, the elected officials are being too honest about the reasons for their positions, and their action (discrimination against the business) doesn’t line up with their basis for the ideological disagreement with the executive. But I’m not sure how different it really is than politics as usual. And, if you have First Amendment protections that essentially allow unregulated bribery of elected officials, then it’s hard to argue that political discrimination on the basis of that speech is wrong.

    Of course, that’s why I am generally inclined to support blanket, content-neutral limits on expenditures. But, after Citizens United, that’s off the table (at least for corporations, as opposed to limits on individuals).

    But, maybe I’m missing something.

  11. repsac3 says:

    Yeah, I’m opposed to government officials using their legislative or executive power to keep businesses from operating in their jurisdiction because they have moral reservations, whether theoretically, like these pro-marriage equality mayors and aldermen vs Chick-fil-a, or in practice, like the various anti-choice legislators and governors in several states closing the doors of abortion providers by passing TRAP laws–impossible to meet regulations that apply only to these particular medical providers, regarding the size of janitor closets, the exact height of examination tables, amount of staffing, width of hallways, etc.

    Singling out one kind of provider over moral concerns–whether it be one fast food provider, or one kind of medical provider–is immoral, and should be illegal (if it isn’t already).

  12. Jameson Quinn says:

    Ex-gay “therapists” should be subject to criminal prosecution and loss of license. People who fund ex-gay “therapy” should be subject to prosecution for conspiracy. People who speak in favor of ex-gay “therapy” should be boycotted, but no worse.

    Cathy belongs to the second category. He deserves worse than a boycott. Which he obviously won’t get from our justice system today.

    So, does that make it OK for cities to deny him permits on that basis? Not without some kind of due process. Which he won’t get in Chicago or Boston. So, mostly, I agree with the post.

    However, in the land of Sophomoria, Chicago could set up some kind of a tribunal, which measured his offenses against existing law on abuse, and, if it found him guilty (under existing law, even if it were in a sense existing courts wouldn’t generally touch), apply the penalties within their power, such as denying permits to his company.

    • Manju says:

      Ex-gay “therapists” should be subject to criminal prosecution and loss of license. People who fund ex-gay “therapy” should be subject to prosecution for conspiracy.

      Oh come on, Robespierre…being married to Michelle Bachman is punishment enough.

  13. [...] Scott Lemieux, John Cole  and many others have echoed those sentiments. [...]

  14. [...] comment I didn’t get a chance to respond to is Jacob Levy’s point that the permit process is so arbitrary that in an ordinary case it would be virtually impossible [...]

  15. [...] are condemning Emanuel, and for exactly the right reasons; see, e.g., Kevin Drum, Adam Serwer, Scott Lemieux, Digby, Richard Kim, John Cole, and Atrios. The true test of a belief in free speech is whether [...]

  16. [...] (see, for instance, Mother Jones‘ Kevin Drum and Adam Serwer, The American Prospect‘s Scott Lemieux, Digby, The Nation‘s Richard Kim, John Cole, Amanda Marcotte, and Atrios). Today, though, [...]

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