DENVER — The First Amendment to the U.S. Constitution says government may not abridge free speech or interfere with the free exercise of religion. The Supreme Court of the United States ruled in Lemon v. Kurtzman (1971) that government may not “advance nor inhibit religious practice.”
In other words, government officials should not try to ban a business from the Denver International Airport on a basis of the CEO’s religious beliefs. So say critics of a decision by Denver City Council members to delay approval of a contract with Chick-fil-A over objections to the top executive’s old comments supporting the traditional family.
Though mounds of legal precedent establish governments may not interfere with speech — and expressly religious speech — members of the council’s Business Development Committee have said they may have a moral obligation to keep Chick-fil-A out of the city-owned airport. It’s not about the First Amendment, a council member told the Register, but a desire to promote “equality.”
The flap emerges from a three-year-old controversy fueled by pro-homosexual activists, after Chick-fil-A CEO Dan Cathy expressed support for the “biblical definition of family” on a Christian radio broadcast in 2012. His comments led activists favoring same-sex “marriage” to discover Cathy’s donations to Christian-based nonprofits that opposed the redefinition of marriage. They began protests and boycotts of the company.
Defenders of religious liberty and free speech — along with supporters of natural marriage — spoke up for the chain in a groundswell that dwarfed the protests and boycott. Nevertheless, Cathy subsequently expressed regret for embroiling his company in a politically divisive religious/moral issue.
Inviting a Lawsuit?
Regardless of his position then or now, legal specialists say the city may get sued and stands to lose if it blocks Chick-fil-A.
“Were the government to bar Chick-fil-A from an airport concession due to political statements made by Cathy, that would be unconstitutional discrimination,” said Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve University School of Law in Ohio, in an email exchange with the Register. “It cannot pronounce a company guilty because of suspicions aroused by the CEO’s comments about gay marriage.”
Because of the First Amendment, Lemon v. Kurtzman and other case law that protects free speech and religious liberty, legal scholars say government officials cannot punish business owners for speech that is blatantly offensive and extreme — such as racist remarks — much less communication that conveys Christian values.
“It is not as if he said we should burn witches,” said David Kopel, an adjunct professor of constitutional law at Denver University.
The Chick-fil-A controversy came only four years after Barack Obama campaigned for his first election as president with routine statements against same-sex “marriage,” such as “I do not support gay marriage.” On several occasions, Obama cited Christian faith as the basis for his opposition. He changed his position while running for a second term in 2012.
When Cathy spoke in favor of the traditional family, Colorado had a constitutional amendment — passed by voters in 2006 — that defined marriage as the union between one man and one woman.
“He was speaking in a manner that paralleled Colorado law,” Kopel said. “Now they would like to punish him for stating a position that, at the time, was part of our state Constitution.”
Though it remains on the books, Colorado’s Amendment 43, like similar laws throughout the country, was nullified this year when the Supreme Court imposed same-sex unions on all states, with its 5-4 ruling in Obergefell v. Hodges.
Catholic Councilman: ‘Equality’ Is the Issue
Denver Councilman Paul Lopez publicly advocated denying the proposed contract of Chick-fil-A over objections to Cathy’s view of traditional marriage. Lopez told fellow council members he had “moral” concerns about doing business with the company. His comments drew support from openly gay Councilwoman Robin Kniech.
No council members spoke in opposition to the concerns raised by Lopez and Kniech. A final decision may come later this summer.
“My problem is not with the company being Christian-based, because I am a faithful Catholic,” Lopez told the Register. “Nor am I trying to infringe on anyone’s First Amendment right. But we have a large LGBT (lesbian, gay, bisexual and transgender) community in Denver, and I fight for their equality.”
Lopez said God is love, “and the best thing you can do to be a good Catholic is to love one another.”
But Catholic teaching strictly forbids same-sex “marriage” or any form of same-sex sexual relations. Homosexual attraction is not a sin, based on Church teaching, but acting on it violates divine and natural law, according to the Catechism of the Catholic Church.
“The Catholic teaching on same-sex marriage bothers me a little bit,” Lopez explained. “Pope Francis has made it clear that love is what rules all, and he has come out with a more open-minded and worldly approach, and that makes me feel a lot better about where the Church may be heading.”
But Kopel, who is also Catholic, said papal lectures, encyclicals and sound bites are often misinterpreted or deliberately misused by progressives who want the Church to accommodate new agendas (in fact, Pope Francis recently has spoken specifically against efforts to redefine marriage). None of that, Kopel said, alters Church doctrine.
Likewise, Kopel said, the city politicians cannot change federal law to suit modern political tides.
“A small, fascistic minority within the gay-rights movement seems to have disproportional political influence in trying to suppress the thoughts and beliefs of everyone else,” Kopel told the Register. “We are seeing that some politicians are happy to appease them.”
Worrisome for Catholics
Kopel said Catholics should worry if Denver politicians manage to get away with banning Chick-fil-A because of the top executive’s words and convictions. Anyone who donates to the Catholic Church, he pointed out, financially supports an organization that opposes same-sex “marriage,” abortion and contraception. None of those positions ingratiate the Church with politicians promoting opposite views.
“If they can do this, county commissioners somewhere in Colorado can stop a public contract with New Belgium Brewing Company because it opposes fracking,” Kopel said. “This type of political activism ... could lead to all sorts of abuses that infringe on basic liberty.”
And even Dignity/Denver, which bills itself as an organization for gay, lesbian, bisexual and transgender Catholics and promotes homosexual rights and same-sex “marriage,” has not rushed to support council members who would stop Chick-fil-A.
“We realize the whole issue is extremely complex,” said Terry Mischel, spokesman for the group. “We appreciate that the issue is being discussed and examined, but it does deal with the issue of rights of individuals and organizations to exercise their First Amendment protections.”
Register correspondent Wayne Laugesen writes from Colorado.