Will Courts Support a Ban on Chick-fil-A?

EDITOR’S NOTE: Please join me in welcoming Jack Smith as a guest blogger to CatholicVote.org.

In theory, the Ninth Circuit already has.

So as you know, politicians in Chicago and Boston threaten to block the establishment of a Chik-fil-A outlet in their environs because the company’s CEO admits, when asked by a religious publication, that he believes in “the biblical definition of the family unit.”

“Those aren’t our values,” Chicago Mayor Rahm Emmanuel said.

So the question arises, would the decision to refuse necessary permits for the operation of a business based solely on the owner’s unpopular speech or religious belief survive court scrutiny? The answer is clearly “no,” and there is plenty of precedent to prove it.

Unless, a troubling opinion by the Ninth Circuit Court of Appeals seems to suggest, that unpopular religious belief entails opposition to same-sex marriage.

Early in 2006, Cardinal William Levada, then-Prefect of the Congregation for the Doctrine of the Faith, issued a statement clarifying that Church agencies should not place children for adoption with same-sex couples. The statement had particular significance for Levada’s former Archdiocese of San Francisco, whose Catholic Charities agency had been placing children for adoption with same-sex couples.

In response to Cardinal Levada’s statement, the San Francisco Board of Supervisors passed a resolution denouncing the Vatican’s foreign meddling, demanding Levada retract his “hateful,” “insulting,” “discriminatory,” “callous” and ignorant directive, and urging current San Francisco Archbishop George Niederauer and Catholic Charities “to defy all discriminatory directives of Cardinal Levada.”

Reminiscent of Rahm Emmanuel’s statement above, the Board of Supervisors declared the Church’s belief on marriage and adoption to be “absolutely unacceptable to the citizenry of San Francisco.”

The Board of Supervisors had no direct leverage here because The City did not fund Catholic Charities’ adoption program and there was no state law, as in Massachusetts, requiring non-discrimination against same-sex couples in adoption placement.

The City did however fund other programs of Catholic Charities and during debate on the resolution, Supervisors made it clear that non-compliance with the City’s demands would place those other programs in jeopardy.

Suit was filed by the Catholic League claiming the official condemnation of the religious beliefs of Catholics by the City of San Francisco constituted a violation of the Establishment Clause. How the Ninth Circuit ultimately ruled on that is not as interesting as why (This is the Ninth Circuit after all). And the why has chilling implications for the current Chik-fil-A controversy.

In June 2009, a three member panel of the Ninth Circuit confirmed the ruling of a lower court throwing out the Catholic League’s suit. The panel said that the City’s action did not violate the Establishment Clause because, per the Lemon test, the resolution “was grounded in a secular purpose,” and not a “predominantly religious purpose.” Judge Richard A. Paez’ ruling said:

an objective observer would conclude that the Board’s purpose was to champion needy children, gays, lesbians, and same-sex couples within its jurisdiction; not to officially disapprove of the Catholic faith or its religious tenets.

The Catholic League appealed and in October, the full Ninth Circuit took up the case en banc. By an 8-3 majority, the full court agreed with the earlier panel and dismissed the Catholic League’s case. The court’s opinion found that:

We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are.

Now, obviously, this case is not directly relevant to any potential challenge to a ban on Chik-fil-A. To begin with, this has to do with the Establishment Clause and not the Free Speech clause upon which any challenge to a Chik ban would be based. Second of all, in the San Francisco case, the Board of Supervisors was seeking to address what it believed to be actual discrimination and not just speech or belief, ie., the actual refusal to place children for adoption in same-sex homes.

However, the notion that official government disapproval of a religious institution does not violate the First Amendment if the main purpose is to support the grand “secular purpose” of same-sex marriage is relevant. It puts the government’s interest in same-sex marriage on a pedestal far higher than that once reserved for the First Amendment.

It is not a stretch to consider that some jurisdiction, someday, may agree that the mere expression of a belief at odds with the government’s support of that high pedestal is “absolutely unacceptable.” Politicians are already making that argument.

Jack Smith is editor of The Catholic Key and former editor of Catholic San Francisco.



  • Mouse

    Of course, what the 9th Circuit does is not always upheld by the Supreme Court. And one would hope that such ridiculous reasoning would have been struck down by the Supreme Court, if it had gone that far. But one now wonders… When we see such anti-religious freedom reasoning accepted even at the Supreme Court, it will be a sad day. Let us all pray (and I mean that, pray daily) that we be delivered from this trend.

    Anyway, the vitriol that city of San Fran officials spewed against Levada and the Church made it very clear that they were indeed motivated by a desire to disparage the Catholic Faith, not just protect homosexuals. Anyone who resists the idea that homosexuality is normal is subject to hatred from them, that’s the bottom line.

    As for the lame excuse that the issue had nothing to do with religion: sexual morality IS part of the faith…Jesus Himself taught about sexual morality, and He Himself taught that marriage is between one man and one woman, for life. He taught that fornication is wrong (which would include homosexuality since those acts are not included in marriage between one man and one woman). The New Testament clearly calls sodomy and other homosexual acts “unnatural vice.” And everyone knows it is rejected in the Jewish tradition/Old Testament.

    It is not for the government (including the courts) to decide that sexual morality is not a matter of religion. It is a violation of the first amendment for the gov’t to tell a Church what are or are not its beliefs!

    But we all know the 9th circuit is notoriously biased against Christians and traditional morality. The more suprising thing is when they actually get a ruling right, which is rare.

  • Pat

    I don’t see how Chik-fil-A could be denied permits based on discrimination laws since they do not deny service or employment to anyone based on their gender, race, or religion. Using their profits to support organizations of their choice is their right, just as Starbucks or JCPenney can choose to support same- sex unions. I’ll take a Chik-Fil-A sandwich over a latte anyway!

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  • Julie T.

    I asked myself if I do not publicly support Mr. Cathy’s constitutional rights (and by extension the constitutional rights of all) now, when will I stand and be counted. So, today I used Google to locate the contact information for both Rahm Emmanuel and Boston’s mayor, Thomas Menino. I called Mayor Menino’s office and told the person who answered, “In light of Mayor Menino’s unconscionable attack on Don Cathy’s First Amendment rights, I support a boycott of Boston: merchandise associated with the city, concerts and sporting events held there, and discretionary travel to Boston. Furthermore, I will make a donation to the opposition candidate in the 2013 mayoral election. I hope the mayor understands there are consequences for his intolerance and violation of the First Amendment, too.” I tried to call Rahm Emmanuel’s office, but I was left with the impression that calls to the mayor’s office are routed through a call center. Instead, I expressed my sentiments on the official feedback form. For good measure, I did sent an e-mail with the same message to Boston’s mayor. I felt better afterward; at least I had done something—and I will make the promised contributions to their opponents.

    • Curious

      Thanks Julie. I will be following your lead. What a great idea! God bless

      • Julie T.

        You are welcome, Curious, and God bless you, too.

  • Derek

    Rom Emmanuel is most likely a closet homosexual. Why is ok for them to persucute us but we who believe in tradional marriage can not say anything against them. I do not fear homosexuals, the definition of homo phobia, nor do I hate them. I simply do not like the practice or lifestyle. The homosexuals I know do not define themselves by their practices. God will judge us all in the end. Christ also preached to the tax collectors and prostitutes. I have sins and so do they. My sins are different but again we will all be judged. There are norms in society that everyone should respect and same sex marriage is NOT a normal practice.

  • Toni

    Chick-fil-a doesn’t discriminate against gays the CEO has a right to his opinion,he doesn’t have to believe what the liberal believe. All people are served there. Thought police have no place in a free society.

    • David

      Chick-fil-a does not offer benefits to domestic partners or the children of their gay and lesbian workers that they freely offer to their straight workers. So, yes they do indeed discriminate against gay people. They also donated to groups that claim that have said that “One of the primary goals of the homosexual rights movement is to abolish all age of consent laws and to eventually recognize pedophiles as the ‘prophets’ of a new sexual order.” I don’t see them donating to groups that say similar things about straight people, so that is also discrimination. Before you go assuming that this company is in the right, perhaps you ought to do some research, as it clearly shows they are in the wrong.

      • Maria

        If those benefits are only offered to married couples/families, and the “domestic partners” are not legally recognized as husbands/wives (before we even get into Cathy’s moral beliefs) it’s not discrimination…otherwise it would be discriminatory to also not offer single people the same health care packages offered to married people…having a requirement of marriage before obtaining a benefit from a company is not discrimination. If domestic partnership is NOT recognized by the state as marriage, how can you say Chic-fil-a MUST recognize it as such for business purposes?
        Also, I wasn’t alive when porn was legalized, or no fault divorce–to reference your other post; however, I do disagree with both as parts of our society. And I pray that we can some day reach a point where neither is accepted in society. However, there is absolutely no logic in saying that the mere fact of things I don’t support or agree with existing in society means I should also accept other things I don’t agree with morally. I do believe that marriage should be more than a piece of paper to be done a way with at any moment. I also believe that men and women are worth more and deserve better than the objectification of the porn industry. However, as neither are a true legal battle at the moment, I’ll pick battles that actually exist before attempting those that are still fully upheld by society…don’t kid yourself: gay “marriage” is not widely accepted in society: it’s gone to vote in 28 states and in every single one, it has been widely rejected.

      • Fred

        Does Chick-fil-A give benefits to non-married domestic partners of straight couples? Do they give benefits to non-biological and non-legally adopted children of straight couples? If so, then you have a case.

        Which group said those comments concerning homosexuality and pedophilia? Was it someone from FRC? I had heard that Tony Perkins claimed those thing, but haven’t seen it verified — if he did, he should step down from FRC.



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