Home » Legal Commentary » How Should a City Respond to Chick-fil-A?

How Should a City Respond to Chick-fil-A?

Recent moves by Mayor Menino of Boston and Chicago Alderman Proco “Joe” Moreno to block the construction of new Chick-fil-A restaurants have garnered a lot of attention. Both Menino and Moreno were specifically responding to recent strongly anti-same-sex marriage comments by the president of Chick-fil-A, Dan Cathay. But the restaurant has a long history of priding itself on its conservative Christian values and has provided generous financial support to anti-gay organizations.

Like many of my progressive friends, I got swept away in the excitement. Finally, city officials really standing up for us! The symbolic value of these announcements was potentially tremendous. City officials declaring that discrimination had no place in their cities. Ten years ago, it seemed like most businesses were hesitant to offer any support for LGBT rights because of concern over backlash. With other recent moves by the Muppets to discontinue their work with Chick-fil-A and Major League Soccer to discontinue an agreement with the Boy Scouts, today it’s seeming more and more like businesses now face more backlash for anti-gay sentiment than they do for pro-gay support.

While I was excited by this strong government support for LGBT rights, I interpreted it through a non-discrimination lens. As a society we have decided that it is proper for government to regulate businesses’ ability to discriminate based on certain criteria. While businesses are generally free to operate how they choose, they cannot discriminate based on race, sex, religion, and in some states, sexual orientation. I saw facebook friends post about Menino’s comments that Chick-fil-A could not open in Boston, and assumed Menino meant that any company that failed to comply with city or state nondiscrimination laws would not receive licenses to operate. I knew Chick-fil-A scores a zero on HRC’s equality index (in particular signifying that their anti-discrimination policy does not include sexual orientation or gender identity, amongst other things), so this seemed reasonable, without further research. The first news report (which I can’t find now) of Alderman Moreno’s comments similarly suggested that the Alderman would require a nondiscrimination policy from Chick-fil-A before they could open.

When a friend asked for my thoughts on the building bans, and specifically whether the same logic could be used to prevent pro-gay stores from opening in conservative areas, I said that I hadn’t though much about it but my initial reaction was to support Menino and Moreno. I explained why I assumed their actions were based on enforcement of nondiscrimination policies, which would not similarly extend to restricting other types of stores. Without doing specific research on how the licensing laws worked, it seemed fair to assume that a city could deny licenses to a business that refused to comply with state or city nondiscrimination law.

But this answer didn’t sit well with me. Even if Chick-fil-A’s corporate nondiscrimination policies do not include sexual orientation, I’m sure they do follow state and local laws and requirements. And if they didn’t, there are many pro-LGBT lawyers out there that would quickly respond! Maybe there were valid reasons to require any business to follow city and state nondiscrimination policies, but Moreno and Menino were really responding to recent statements by the president of Chick-fil-A. In fact, Alderman Moreno explicitly said that his decision to ban Chick-fil-A from his Ward was in response to Cathay’s comments. While I might personally choose not to patronize Chick-fil-A based on Cathay’s comments, the city should not ban Chick-fil-A based on Cathay’s comments.

As both a legal and a policy matter, there is a huge difference between enforcing nondiscrimination law and restricting anti-gay speech. Nondiscrimination law requires organizations and businesses that serve the public (i.e., practically all businesses) to treat employees, customers, etc equally. For some states and cities, this includes a ban on discrimination based on sexual orientation. These nondiscrimination laws are based on the idea that is is proper for the government to ensure equality. The government cannot regulate what people say or think about others, but the government can require public organizations to treat everyone equally. But the government has no role in regulating Cathay’s personal comments or restricting his business based on those comments (remember the First Amendment?) Cathay personally and Chick-fil-A as a company are free to make whatever donations they want to anti-LGBT organizations. The government should not be regulating that (donations to politicians are another question I’m not dealing with here). As I’ve looked more closely at what Mayor Menino and Alderman Moreno said, it looks like they are really focused on Cathay’s personal anti-same-sex marriage statements. And as my friend was concerned, that sort of justification could easily be used to support banning companies that take pro-LGBT positions.

That said, I don’t think these city officials need to remain silent. City officials routinely talk about the kinds of businesses they want to attract to their city. They routinely talk about the values that they want to promote. And it is important for city officials to take public stances against anti-LGBT discrimination. What if these officials talked about how “we are concerned with Chick-fil-A’s nondiscrimination policies. We remind Chick-fil-A of our city’s strong nondiscrimination policies. Before it will be allowed to open in our city, we will ensure it will follow our community’s values.”

Then again, these slightly more nuanced statements might not gather any media attention. The media was attracted to the idea of a city trying to block a business from opening. So maybe we should just understand Menino’s and Moreno’s statements as political theater. And there is a lot of positive spill over from having LGBT youth and others read about those statements, even if any actual ban would be totally unenforceable. In any case, I am happy for the symbolic value of these statements, and I am happy to hear city officials aggressively enforcing nondiscrimination policies, and I am even proud to personally avoid shopping at businesses with anti-LGBT policies, but I would caution us against wholeheartedly jumping onto the idea of banning businesses based on their policies.

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