Unterreiner: What to do about Chick-fil-A?

Aug. 16, 2012, 1:01 a.m.

In an odd sort of way, I’m glad Dan Cathy said what he said. Because the messy public debate that has swirled around the Chick-fil-A corporate empire over the past month is one we should be having, and one that adds an important new set of voices to the defining civil rights issue of our time.

But the public needs to be a great deal more precise about what exactly we’re arguing about. This isn’t really one big argument; it’s actually a series of smaller, more specific debates, and it’s vital that the American public clearly define each one before coming to a reasoned, informed conclusion.

The first argument we could have, I suppose, is whether Mr. Cathy ought to be allowed, as the chief operating officer of a family-owned business, to publicly state his opposition to the legalization of same-sex marriage. I hope you’ll agree with me that the First Amendment case is pretty clear-cut and doesn’t need addressing here.

The second argument we could have is one about whether Cathy’s comments make good business sense. This is an empirical argument that (a) needs to be backed up by facts and figures, and (b) isn’t over yet, since the total financial impact on Chick-fil-A has yet to be determined. It’s therefore not a particularly useful argument to address seriously in this column.

The third argument we could have is a debate about whether local governments and municipalities, distressed by Mr. Cathy’s comments, in fact have the power to ban Chick-fil-A from opening or maintaining franchises within their jurisdiction. This is essentially a legal question, and the answer is an apparently clear “no.” UCLA law professor Eugene Volokh has pointed out that “denying a private business permits because of such speech by its owner is a blatant First Amendment violation.” Cornell law professor Michael C. Dorf has observed that “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.” And Adam Schwartz, senior attorney for the American Civil Liberties Union, has declared that “the government can regulate discrimination in employment or against customers, but what the government cannot do is to punish someone for their words.” One doesn’t need to be a legal expert to see why: Today’s Boston Chick-fil-A could just as easily become tomorrow’s Birmingham Starbucks.

This leaves us with only one fruitful debate to actually have: whether you, as an individual, will eat at Chick-fil-A. This is essentially a moral question that only individuals are equipped to answer, based on the convictions about marriage equality each person is entitled to have. Unlike marriage equality itself, this isn’t a question of rights or legal and political obligations, a problem that the courts or the legislature can solve for us. This is a question we must all answer for ourselves.

I’ve never eaten at a Chick-fil-A, and Mr. Cathy’s comments have now ensured that I never will. I won’t send my dollars to a corporation only to see my money turned around and donated to political lobbies dedicated to preventing gays and lesbians from entering into the same fulfilling, long-term relationships, protected and sanctioned by the state, that everyone else is allowed to enjoy. And I’m confident that in the long term, the tide of history will sweep away opinions like Mr. Cathy’s, and that the Americans of 50 years from now will look back on us and wonder what the hell took us so long.

But until that time, let’s enjoy one thing about this debate: the chance to glimpse the soul of America through the free and voluntary choices of its people. If you don’t like what Mr. Cathy said, make Chick-fil-A hurt. And if you do, go get a chicken sandwich there every day this week.

There’s not really anything else we have to talk about.

Tell Miles what you plan to do about Chick-fil-A at [email protected].

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