Ari Ezra Waldman | Chick-fil-A | Law - Gay, LGBT | News

The Constitution and Chick-fil-A: Boycotts, Business, and Beliefs



Chicken dinners usually bring families together, but recently, when Chick-fil-A CEO Dan Cathy gloated about his distaste for the rights of LGBT Americans, chicken became the latest front in the culture wars. We've known for some time about Chick-fil-A's rabid conservatism, homophobia, and religion-inspired hatred of all things gay. Mr. Cathy's "guilty-as-charged" comment seemed to re-open old wounds and reminded us how many millions he and his company have spent on denying basic human dignity to one particular group.

QueerhatinHis statement engendered significant blow-back, from House Minority Leader Nancy Pelosi using Twitter to note her preference for KFC to the Jim Henson Company severing all ties from the wayward chicken house to big city mayors opposing any Chick-fil-A expansion into their urban areas. This controversy, of course, is not about chicken. Nor is it really about free speech. Mr. Cathy is free to oppose gay rights, but the moment he uses his business, his money, and his pulpit to help deny rights to gay people, he transforms his opinion into outright hate. And, that deserves a response.

Today I would like to talk about how we determine the appropriate response.

We can "vote with our feet," or, boycott Chick-fil-A establishments, and encourage our heterosexual friends and allies to do the same. That's a good idea, as long as it is done respectfully and in a manner that complements the overall goals of our quest for marriage recognition. Boycotters aren't "drama queens" or "spoiled children," despite what Log Cabin Republican Executive Director R. Clarke Cooper said in a Huffington Post piece rife with self-loathing language.

As with most things, context and tone matter. Every Chick-fil-A burger you eat will not only make you less healthy, but it will also help fund the National Organization for Marriage, the efforts to ban marriage recognition in Minnesota, the Liberty Council, and a handful of other groups that have dedicated themselves to harming gay and lesbian Americans. Saying no to that reminds the world that you're not going to roll over in the face of hate. It does not make you a petulant baby unworthy of the respect of one gay Republican.

But, a mayor banning Chick-fil-A from entering his or her city is another matter, raising questions of law, policy, philosophy, and ethics. AFTER THE JUMP, consider the arguments on both sides of this question and see where you come out.


CooperMr. Cooper of the Log Cabin Republicans has a problem with gay people making a big deal out of a chicken sandwich. I don't. Setting aside the unfortunate language that may symbolize both his holier-than-thou moralism and internal self-doubt, Mr. Cooper has a point: whiners aren't attractive, sympathetic, or noble, and in a world where we are trying to prove to majority of Americans that we deserve to be treated equally, fulfilling gay stereotypes does not help. I grant him the underlying point, even while I resist his tone. However, Mr. Cooper makes two logical errors that make his opposition to a Chick-fil-A boycott irrational: He equates the boycott with childish whining, and he equates one man's personal beliefs with the very real efforts of his money.

Refusing to spend money at Chick-fil-A is not simply an attempt to send the company out of business. It is also a statement that we will not support the company's hate and, more importantly, will not be parties to the very hateful groups that want to take our chicken money and invest it in taking away our rights. There is nothing childish about that; in fact, it is the height of rationality.

Mr. Cooper's greatest error is the assumption that the gay community is up in arms at Mr. Cathy's personal beliefs. Mr. Cooper is a smart guy, so, assuming he knows better, I am left to conclude that he is simply falling back on the conservative talking points that gays are "thought police bullies," the incomparably offensive canard that is even more evil when you consider the countless gay youth that are victims of real bullies. Disagreements on matters of opinion are irrelevant to this boycott. Mr. Cathy and his team have donated millions of dollars to organizations that do not simply have opinions. They support candidates that want to strip away our rights and make gay persons invisible to schools; they pay for ballot initiatives that seek to deny and take away marriage rights; and, they pay for political advertisements that call gays "predators," "dangerous," and unworthy of raising children.

Those very real actions -- the use of our chicken sandwich money -- are the reasons for our boycott. Mr. Cathy is free to hate gay marriage. He is even free to hate gays. We have to respect even those odious opinions. But, the moment he uses his company's money as the arm of his quixotic interpretation of scripture, we are within our rights to deny him as much of that money as possible.

EmanuelBut, Mr. Cooper's logical confusion does not speak to a separate issue: whether big city mayors like Tom Menino of Boston and Rahm Emanuel of Chicago should have the authority to ban Chick-fil-A from their cities. Both men are strong allies of the LGBT community, with Mr. Menino being the godfather of pro-gay city bosses. Both men consider themselves liberals, or progressives. Both are walking a fine liberal line.

A classical liberal should have a tough time arguing for a ban on Chick-fil-A's in his city. To political philosophers like John Rawls, himself the godfather of modern liberalism, government is not there to decide which opinions are right and wrong. Government protects rights, even the rights of people we dislike. Government should not be in the business of arbitrating in the moral debates of its citizens. Therefore, zoning laws should not discriminate between businesses with opinions we like and businesses with opinions we dislike. If progressives use laws to make decisions on public morality, then Chick-fil-A becomes our Ground Zero Mosque. Recall the progressive community's indignant response when hateful conservatives, xenophobes, and bigots opposed having a mosque near Ground Zero in Manhattan. In that debate, we preferred the neutral application of zoning laws. A liberal should treat the Chick-fil-A controversy the same, the argument goes, lest we begin the slow descent into fascism.

Then again, that argument makes its own three logical errors. First, it assumes that the traditional liberal line is the only way to respond to this problem. Second, it follows Mr. Cooper's failure to distinguish between opinions and very real hate. And, third, it uses the falsehood of the slippery slope to confuse and scare.

Rawlsian liberalism, which counsels government neutrality in moral debates and respect for individual rights for the minority, cannot distinguish between the Ground Zero Mosque and Chick-fil-A. But, we can distinguish between a simple religious house with no ties to terrorist organizations and a business that spends money on codifying hate. It is, after all, the way Chick-fil-A would spend its Chicagoan or Bostonian money that bothers us, not the random hateful statements of some old white man. And, it is a logical fallacy to take a small step and aggrandize it to an extreme. The slippery slope hardly warrants a response.

Here is the question for us to consider: If the money is the problem, then why not let Chick-fil-A open a Chicago or Boston store and, as James Peron noted in The Huffington Post, "allow them to pour capital into a restaurant where no one will eat."

Though that would be a great victory, Mr. Peron must know how impossible that is. Chick-fil-A will open a branch and advertise itself to a public mostly unaware of its history of and future plans to use money to deny rights to gays and lesbians. Thousands would come for whatever it is Chick-fil-A actually sells. If the company tried to take away rights from heterosexual white men, on the other hand, the story would be different: the majority would boycott, the business would fail. Mr. Cathy's hate of choice -- hate of a particularly small minority -- will never drive away all his customers. So, maybe government has a role to protect the rights of the minority that Mr. Cathy is trying to harm.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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  1. Very well thought out piece. Great read. My only issue is with the statement, "We have to respect even those odious opinions". We should all respect someone's right to hold or voice their opinion, that does not mean that the opinion deserves automatic respect.

    Posted by: Michael J. Hildebrand | Jul 31, 2012 2:39:06 PM

  2. Ari,

    I'm curious why you didn't address the dubious constitutionality of banning CFA from cities. Is it because you've seen the irrational vitriol and invective hurled at people who dare suggest that the constitution demands a situation that doesn't agree with what they think the outcome should be?

    Curious that a constitutional scholar evades the constitutional question of "is/can" in favor of the political philosophies of "should."

    Of course you ARE an academic, so I suppose that kind of diversion is inevitable ;) (I kid, I kid)

    Posted by: Jack | Jul 31, 2012 2:42:02 PM

  3. There are over 500 outlets in my state. They are a Southern staple and couldn't care less what Brooklyn thinks. Thanks anyway.

    Posted by: MarkUs | Jul 31, 2012 2:55:32 PM

  4. the thing that I find funny here is that these city officials weren't forced to say what they said, but lets look at it from another angle, do you really think a hateful restaurant would be safe opening in an area that is diverse? something to consider. and what about places like Boston, where gay marriage is legal, now it is not only an opinion, but it is an attack on the law of that state. and while yes, if we start to ban bigotted conservatives, then we face backlash on our businesses opening with one exception, LGBT business opening do not make hateful statements about people, so there is no reason to deny them eventhough it happens. Not to say we didn't already know about Chik-fil-A, but when the CEO gets up and makes a public announcement, then I personally don't feel welcome or comfortable going there.

    Posted by: tommyboy10 | Jul 31, 2012 2:57:34 PM

  5. Way to come out like a jerk, Markus. Solid input, as ever.

    Posted by: Mikey | Jul 31, 2012 2:58:06 PM

  6. Way to come out like a jerk, Markus. Solid input, as ever.

    Posted by: Mikey | Jul 31, 2012 2:58:08 PM

  7. mayors saying a brand is unwelcome isnt the same as banning them.

    will you lawyers, pseudo lawyers and trolls please learn the difference between legislation and a letter using the word "urge". when unable to legally block a stores opening, it is an absolute, and expected right of a politician to advocate on behalf of their constituency. in a different political arena the same thing happened with the ground zero mosque. its a war of words, and though republicans would have you believe otherwise, not everything is automatically a supreme court issue.

    Posted by: mld | Jul 31, 2012 3:01:40 PM

  8. Conservatives are always telling us that the free market will decide, except when they are on the wrong end of social Darwinism. I can't believe that a company which is becoming more and more clearly divisive will profit when its customers come down to just the hateful white trash of Palin supporters and their ilk, though that's a lot of people.

    I'm glad to see government representatives taking a stand and vocally chastising CFA, but I wouldn't want to see them actually acting in blatantly unconstitutional ways to keep new stores from opening. Let NOM boycott JCPenney and we'll boycott those places we find unacceptible. Over time one side will eventually lose their power, and I am confident, it's not going to be us.

    Posted by: stranded | Jul 31, 2012 3:07:10 PM

  9. I think what you missed about the stores is its not an issue or right or wrong opinions. Its an issue of HIRING and the way they do business. If a company is known to discriminate then its a communties right to say we dont need you here. Its equal to say not approving a walmart because it doesnt promote women or Denny's for not hiring blacks.

    Most gays in the know have boycotted ChikfilA for years already. Its matter of getting the staright population to do the same. And not simply not buying the products but letting the company know they arent buying.

    There is more to it than just what causes the corp donates to

    Posted by: Homo Genius | Jul 31, 2012 3:07:56 PM

  10. Can you believe Starbucks, Amazon, and Ben & Jerrys can donate money to same sex marriage and no one says anything but when a Christian says what is on their mind they are persecuted in public?

    Posted by: Daniel Pastour | Jul 31, 2012 3:08:50 PM

  11. @Tommyboy10:

    It doesn't matter whether you perceive their statements as hateful. That has literally no bearing on any First Amendment analysis.


    Moreno in Chicago said he would use aldermanic privilege to block the permitting. That would be legislative action. Saying that CFA is not welcome is one thing, saying "I will block them because of their stance on gay marriage" is a whole other ballgame. Maybe us lawyers really know the difference better than you.

    Posted by: Jack | Jul 31, 2012 3:09:33 PM

  12. Great article. It's going to be interesting to see how this plays out after the pandering dies down. I woke up this morning to a picture of the Lt. Governor of Texas and US Senate candidate holding a Chick-fil-A bag on the front page of the local paper (the primary runoff is today).

    Posted by: kirkyo | Jul 31, 2012 3:10:34 PM

  13. Ari,

    I don't think I agree with you about the boycott. I certainly disagree with the LCR's tone and reasoning for opposing the boycott. However, I agree that an organized boycott is probably not a good idea. To be certain, if anyone chooses not to eat there because of Mr. Cathy's statements, that's fine, but a concerted effort is quite different than an individual decision, even in the aggregate.

    When NOM organized its boycotts of several companies for their corporate statements, the organization was derided for boycotting over personal beliefs. To now do the same just months later looks hypocritical. Of course, the right is hypocritical as well, but that hardly justifies hypocrisy from the LGBT movement. Our hypocrisy and the perception that we are attacking base on a personal belief will undoubtedly be used against us as a recruiting tool. While the right does the same, they notoriously lack the capacity for self-reflection and would fail to see the irony in that.

    I also disagree with your statement that disaggregates Mr. Cathy's money from his personal beliefs. While certainly the two are distinct, there two are interlinked in a way that cannot be unbroken. If you were to accept your argument, taking it to its logical extreme, my vote can be disaggregated from my personal beliefs. In reality, my vote is an expression of my personal beliefs. Although a vote is not the same as money, money expenditures can be an expression of a personal belief. That's exactly what a boycott is. So the boycott itself belies your argument.

    The truth is that he is being attacked because of his personal beliefs. That is taboo to acknowledge, but it is the truth. It's not wrong to criticize one's personal beliefs and have respectful discussions about them. That's what democracy is all about. The tricky part in this situation is when the personal belief is a religious belief. It often is perceived as, and viewing many comments here at Towleroad often explicitly is, anti-religion. While its not wrong to be anti-religion, bringing religion into the conversation transforms it from being about policy to something raw and emotional.

    I do not believe this boycott is the best way to approach this issue, not only because of the hypocrisy element, but also the potential impact on employees who have no say in the matter. And before people go off on the employees for even working there, let's not forget that people in low wage jobs are often there because that's the only job they could find.

    Posted by: John | Jul 31, 2012 3:12:33 PM

  14. I've been looking at the photo of the sandwich. I don't know about where you live, but where I live the sandwich is routinely served on a mediocre bun with two thin slices of a dill pickle.

    You can pay extra for an "upgrade" of lettuce and tomato.

    I have never seen a sesame seed bun at this restaurant.

    Is that bacon or a wavy tomato? Is that tartar sauce?

    Since I heard that the place is anti-gay, I haven't eaten there in years. Things must have changed. The sandwich looks good.

    I hope I don't give in to the temptation to try one.

    Posted by: Anon | Jul 31, 2012 3:15:55 PM

  15. @jack. i did not speak of moreno i speak of mayors emanuel and menino. "Boston Mayor Tom Menino and Chicago Mayor Rahm Emanuel have sought to clarify that they do not intend to use city resources to block Chick-fil-A’s permitting efforts on account of CEO Dan Cathy’s political or religious views. They stand by their comments, however, that the stores do not belong in their cities."

    Posted by: mld | Jul 31, 2012 3:21:38 PM

  16. My Mayor Menino is just out of line. I'd like to see them open here in Boston and have to deal with our workforce -- generally gay-friendly and gay and not shy about it.

    They'd have to deal with it. And that would be good.

    Boycott? Of course. Why feed the beast?

    Copper's self-hatred? YOU BET!

    Posted by: Bingo | Jul 31, 2012 3:23:56 PM

  17. @MLD:

    Eh, I call BS on both of em. They both made clear before the blowback that they wanted to block CFA from coming. Then once the city lawyers told them how stupid they are, they backtracked.

    The hilarious part about it is how these idiots painted themselves into a corner. Had they kept their gigantic idiotic mouths shut, the may have been able to block permitting based on some legitimate concern (not that I would support such trickery). But no, that wouldn't have scored cheap political points. Instead, Moreno outright said that he was going to block CFA based on Cathy's views. Any other justification he tries to bring in now will rightfully be seen as a sham coverup of a First Amendment violation, and no judge will believe a word he says. The council pretty much has no option but to approve the permit now, due to the strong incriminating evidence that Moreno did when he launched a public, recorded assault on the First Amendment.

    What a total assclown.

    Posted by: Jack | Jul 31, 2012 3:30:02 PM

  18. You feel the same way about Chich-fil-A as they feel about you so it's mutual. Why do you think everyone has to love gay people?
    There will be no pleasing you and you'll always be ready for a fight.
    That's the nature of woman-ish men. Hell hath no fury like a queen scorned. If you doubt me imagine one reading this.

    Posted by: Bruce | Jul 31, 2012 3:32:44 PM

  19. @John I don't understand how you can read Ari's post and still not appreciate the difference between boycotting a company for a CEO's personal opinion and for donating millions of dollars -- earned from consumers -- to anti-gay causes.

    Would you donate money to NOM? FRC? No. But when you buy sandwiches from Chick-Fil-a, you do just that. Or, at the very least, you supply someone with money to donate to them. Sure, Cathy can believe what he likes. But when he uses money from gay and LGBT allies to donate to anti-gay causes, I am going to stop eating his food, and do my best to get others who agree with me to do the same.

    Cathy is using your money to give anti-gay organizations the resources to overturn your rights. That has nothing to do with his opinion, other than that it is fueling his actions.

    Posted by: Mike8787 | Jul 31, 2012 3:41:18 PM

  20. @Jack--I came to this comment thread all prepared to make several points, but then you made them all for me. Well played, sir.

    And you're right: lawyers, at least the well trained ones, typically do know what they're talking about more than people realize.

    Posted by: Stefan | Jul 31, 2012 3:45:35 PM

  21. Bingo,

    Most Chick-Fil-As are franchises, not company stores. The franchise owner would likely come from the community and share the community's values and Massachussetts anti-discrimination laws. So I'm sure a Chick-Fil-A would be fine there as far as its business practices. Let's not forget that this issue isn't about alleged discriminatory hiring or refusing to serve LGBT patrons. It's about what the corporation has done with its money.

    Is there a harm there? Yes, that's undeniable. But the boycott is against someone that isn't going to change its mind. It won't help us win LGBT equality because unless their understanding of the Bible changes, they are not going to support LGBT rights. It's okay if the far right doesn't like the idea of equality. In our hyperpartisan society, we seem to struggle with knowing there are people who disagree with us. The best course of action is to reach out to those in the middle who fairly ambivalent and don't have strong feelings either way. While there certainly is a moral right and wrong to this issue, when it comes to creating policy there is no morality, only numbers.

    I dont understand what is to be acheived by this boycott or what its goal is. Maybe Chick-Fil-A will stop donating. But that won't prevent its owners from donating as individuals and won't stop the American Family Association from spewing its hate. When all is said and done, the next morning will look exactly the same as before, if not more partisan. If there's no ultimate goal, then why boycott?

    And I'll reiterate again, don't eat there if you don't want to. However, an organized boycott is a very different thing than an individuals's personal belief that Chick-Fil-A is not the fast food chain for them.

    Posted by: John | Jul 31, 2012 3:47:56 PM

  22. Thanks, Ari, for the thoughtful analysis, one much in line with what I've been saying in the CFA threads.

    Cathy's beliefs are ignorant, but it is the financial ties with groups dedicated to stripping us of civil and constitutional rights that makes the outcry against CFA completely appropriate. Why would citizens or mayors want a business in their neighborhood that is so extremely at odds with the moral and legal values of someplace like MA? Why wouldn't they/we tell CFA to take a hike?

    Denying permits solely because of CFA's actions does, I agree, get on very slippery ground, IF CFA is complying with non-discrimination law (which, given their values, is hard to imagine but evidence would be needed). But, while a couple of politicians have spoken of this slippery slope, I'm not aware that any steps have been taken, so the hysteria over the possibility seems premature, particularly since they've backed up to bully pulpit area when legal minds urged caution. And bully pulpit opposition is quite different than using the government to block permits.

    I also wish people would stop using the, But what if conservative mayors block pro-gay chains like Starbucks or JC Penney's or a gay bookstore etc? First, let them rationalize this. We should not be afraid of free speech from the other side because the comparison is not apt. CFA is working with groups to deprive citizens of civil rights; pro-equality companies are doing nothing of the sort as marriage equality does not trample on anyone's civil liberties. Not that the right will buy this distinction, but the distinction should not be ignored simply because people (like CNN talking heads) are too unaware to make it.

    Posted by: Ernie | Jul 31, 2012 3:52:55 PM

  23. a question:

    so boycotting a company that supports hate is bad? just because we disagree with boycotts for companies that believe in equal right?

    there is something wrong in that logic...hmmm???

    and ws NOM not consider a hate group last year?

    i keep scratching my head at some of the comments here...

    Posted by: Derek | Jul 31, 2012 3:55:41 PM

  24. Politican's response: We wholeheartedly welcome good corporate citizens to bring their businesses into our city/state, businesses that provide services, products and employment opportunities to our citizens, regardless of color, creed or orientation.

    Where there is evidence that a company illegally discriminates against customers or employees or franchisees, however, we will scrutinize the company's practices in the process of granting licenses and applications, until we are satisfied that the companies are observing all relevant laws, local, state and federal. And we will continue this scrutiny to ensure compliance.

    We are committed to protecting the rights of ALL citizens to live and work free from discrimination---those who operate businesses, those who work in business, and those who consume goods and services.

    Posted by: Rahm Quinn | Jul 31, 2012 4:00:28 PM

  25. Mike8787,

    I'm not disputing where the money came from. I disagreed with his questioning of Mr. Clark's equating the harm of the money with Mr. Cathy's personal beliefs.

    Nor am I suggesting anyone eat there if they do not wish to. I don't eat at Chick-Fil-A. I am opposed to an organized boycott. Do you shop at Walmart? Buy gas from Exxon? If not, are you doing so because of a personal decision about those companies or as part of a more organized boycott? The distinction between the two is important as the latter draws lines around entire groups and establishes an us vs them mentality that I don't think is appropriate in this case. See my response to Bingo above for more on that.

    Although we tend to think there are only two sides to every argument, that simply is not true. That I disagree does not mean I support Chick-Fil-A, that I'm anti-gay, or that I'm self-loathing. I'm simply voicing my opinion that this boycott isn't a great idea. I surely hope that our community is willing to leave ample room for dissent.

    Posted by: John | Jul 31, 2012 4:03:26 PM

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