In the days since Boston Mayor Thomas Menino and Chicago Alderman Joe Moreno each suggested they wouldn't allow a Chick-fil-A franchises to build in their cities, a lot of people, including supporters of gay marriage, aren't so sure they're acting legally. The politicians are reacting to Chick-fil-A President Dan Cathy's very publicized comments that we "are inviting God's judgment" by allowing same-sex marriage. Menino wrote Cathy a letter saying, "There is no place for discrimination on Boston's Freedom Trail, and no place for your company alongside it." Chicago Alderman Moreno noted that before Chick-fil-A can build a new location, it needs city council approval to divide up some land, something that requires his assent, and he wasn't inclined to give it. Chicago Mayor Rahm Emmanuel seemed to implicitly support that stand.
Blogger and UCLA Law Professor Eugene Volokh gives the most detailed argument we've seen that both Moreno and Menino would be violating the First Amendment, saying that the federal precedent on these issues is unambiguous. He points to Board of County Commissioners v. Umbehr, a 1996 Supreme Court case ruling on whether a county board had the right to terminate a man's trash hauling contract because he'd often criticized the board in the local newspaper. The trash hauler won. Volokh writes:
[D]enying a private business permits because of such speech by its owner is a blatant First Amendment violation ... And this is so even if there is no statutory right to a particular kind of building permit (and I don't know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights.
... which part of the First Amendment does Menino not understand? A business owner's political or religious beliefs should not be a test for the worthiness of his or her application for a business license.
Editorial boards at the Chicago Sun Times and the Chicago Tribune, as well as two Tribune columnists, both of whom support gay marriage, did not support the alderman's plan. Columnist Steve Chapman writes:
Chick-fil-A president Dan Cathy made a statement. Moreno, who is part of the Chicago city government, wants to punish him for it. It's as black-and-white a case of illegal censorship as anyone could find. And if the company wants to challenge Moreno's decision in court, he wouldn't stand a chance.
Both the Globe and the Tribune make similar points that, as the Globe puts it, "If the mayor of a conservative town tried to keep out gay-friendly Starbucks or Apple, it would be an outrage."
Volokh does offer a caveat, noting that if Chick-fil-A discriminated against employees or customers in ways that violate Chicago's or Boston's laws, the governments might have more latitude to bar them from their cities. Chick-fil-A has been sued over a dozen times through the years because of its heavy-handed concern with the moral standing of its employees -- moral standings as defined, of course, by Chick-fil-A. In 2002, for example, a Muslim Chick-fil-A manager in Houston settled with the company saying he was fired a day after he refused to participate in a group prayer at a training program. But Menino and Moreno aren't presenting cases within their jurisdictions like this as evidence, and without that, they aren't garnering a lot of legal support for their stands.