Saturday, August 4, 2012

The legal issues behind the Chick-fil-A controversy

The controversy surrounding Chick-fil-A President Dan Cathy’s July 16 comments in opposition to gay marriage is no longer a culture war-influenced discussion of free speech.

In little more than a week, it evolved into a formal complaint filed Thursday with the Illinois Department of Human Rights. The group behind that complaint, Chicago-based The Civil Rights Agenda, is alleging violations under the Illinois Human Rights Act. And that group is standing by Chicago alderman Joe Moreno, whose opposition to a planned Chick-fil-A in his ward has earned him national attention.

At stake is the strength of the reasoning underpinning both the complaint and Mr. Moreno’s resolve, which after uncommon scrutiny appears undaunted. Speaking Wednesday to MSNBC’s Chris Matthews, Moreno said, “I’m not going to back down from this.”

Last week, Moreno announced he would use his power as alderman to block the construction of a planned Chick-fil-A in his ward. In a Chicago Tribune editorial published July 26, Moreno said Cathy’s comments revealed Chick-fil-A’s “homophobic agenda.” In an email to constituents sent out that day, he added that he was “tired of self-professed ‘liberals,’ who have no backbone and are all talk.”

The reaction from commentators and activists, including supporters of marriage equality, was swift and overwhelmingly critical. Many argued Moreno’s decision was an unconstitutional assault on the First Amendment, an example of government punishing a business for the political beliefs of its president. Glenn Greenwald, a former civil rights attorney and current liberal journalist at, called the alderman’s position “as pure a violation of the First Amendment’s guarantee of free speech as it gets.” The Illinois ACLU, which is currently suing on behalf of nine Illinois same-sex couples seeking marriage rights, said Moreno’s proposed actions were “wrong and dangerous.”

But The Civil Rights Agenda defended Moreno, in the process attempting to redirect the discussion onto more favorable ground. An August 1 statement from Executive Director Anthony Martinez stated that “the issues at play in Illinois are not First Amendment issues; they are issues of illegal discrimination in public accommodation.”

In an interview Wednesday, Martinez explained that Cathy’s statements, coupled with donations Chick-fil-A made to groups opposing marriage equality, reveal “a culture of discrimination” permeating the company that violates the Illinois Human Rights Act, Illinois’ state version of federal civil rights law.

Martinez cited section 5-102 of the Act, which prohibits places of public accommodation, like restaurants, from producing “written communications” conveying the message “that any person is unwelcome, objectionable or unacceptable because of unlawful discrimination.”

The Civil Rights Agenda’s complaint, filed August 2, is on behalf of “a same-gender family with a daughter.”
“Chick-fil-A used to be one of their favorite places to eat,” the complaint explains, “until Mr. Cathy’s latest statements were reported so widely. Now, they feel completely unwelcome in the establishment.”
The Illinois Department of Human Rights will evaluate the complaint and decide whether or not to recommend legal action. Susan Provenzano, a professor at Northwestern Law School specializing in employment law, expressed skepticism on Friday that a court would find in favor of the filers.

“I’m not aware of any Illinois law or Illinois decision that would support this reading,” Provenzano said. “Just looking at the statutory language, I think it’s a stretch.”

“If there was an actual act of discrimination because of sexual orientation, that would certainly be illegal under the Illinois Human Rights Act,” she continued. “It doesn’t, I don’t think, reach to how somebody feels based on what a corporate president has said his personal viewpoints are.”

Alderman Moreno didn't answer calls for comment on this article, but neither he nor The Civil Rights Agenda have referenced specific examples of tangible discrimination committed by an Illinois Chick-fil-A restaurant.
But Moreno has suggested that discriminatory activity has been a part of Chick-fil-A’s past. In his interview on MSNBC, the alderman referenced lawsuits filed against the company. He also highlighted a 2009 interview in which Dan Cathy was asked about his willingness to hire gay job applicants. “It depends on the circumstances,” Cathy replied, though he reportedly qualified those statements by noting that other factors, such as work history, would also be considered.

Whether or not these incidents would have meaning in a court, Moreno has used such arguments to justify his calls for the company to proactively demonstrate a commitment to LGBTQ equality before receiving his blessing. He has even called for Chick-fil-A to “post an anti-discriminatory policy in their restaurants” and “work with a local LGBTQ organization” before opening its new Chicago location.

But Dara Purvis, a law professor at the University of Illinois, noted the limits of past behavior on the current discussion. “You could not make an argument saying, Chick-fil-A 30 years ago was not complying with relevant civil rights laws," Purvis explained, "so that means today, they have to do more than other companies to show that they’re complying with the Human Rights Act. Can’t do that. That’s a total non-starter.”

In interviews, Moreno has expressed his desire to be an LGBTQ-rights leader. It is not hard to imagine how, for example, getting a statement in support of equal rights on the wall of a local Chick-fil-A would represent a political and cultural victory. Professor Provenzano, who spoke positively of “creative lawyering,” explained that similar motivations may be behind The Civil Rights Agenda’s complaint.

“Their goal and their objective, rightly so, is to push the law,” she said. “It could very well be that really the purpose is to create legislative action rather than to necessarily win in a court of law.”

1 comment:

  1. When we find a platform through which a revolution can occur in pre establish rules of society. Then a serious controversy occurs in it. This is the same which occurs in the case of the gay marriage case. I hope this will resolve as soon as possible.
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