I found this posting from a site I do not read often but my deep background tells me is a very reliable site: The Volokh Conspiracy. Here’s a highlight:
But denying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.
Even the Boston Globe comments on the editorial page that the mayor’s comments are ill-advised and admits Chick-Fil-A does not discriminate against gays:
Chick-fil-A must follow all state and city laws. If the restaurant chain denied service to gay patrons or refused to hire gay employees, Menino’s outrage would be fitting. And the company should be held to its statement that it strives to “treat every person with honor, dignity and respect — regardless of their belief, race, creed, sexual orientation, or gender.” But beyond the fact that Chick-fil-A is closed on Sundays, the religious beliefs of the company’s top executive don’t appear to control its operations. (emphasis added)
So maybe it is a civil rights violation! Thanks to the Volokh Conspiracy!
Glenn Greenwald (who I respect and admire very much) seems to agree at least that government must not stifle businesses based on content:
If you support what Emanuel is doing here, then you should be equally supportive of a Mayor in Texas or a Governor in Idaho who blocks businesses from opening if they are run by those who support same-sex marriage — or who oppose American wars, or who support reproductive rights, or who favor single-payer health care, or which donates to LGBT groups and Planned Parenthood, on the ground that such views are offensive to Christian or conservative residents. You can’t cheer when political officials punish the expression of views you dislike and then expect to be taken seriously when you wrap yourself in the banner of free speech in order to protest state punishment of views you like and share. Free speech rights means that government officials are barred from creating lists of approved and disapproved political ideas and then using the power of the state to enforce those preferences.
Greenwald is right. I found this exchange between Greenwald and a person who appears to be gay (BillyFLA) to be illuminating:
BillyFLA: Agreed that Glenn is being intellectually honest. HOWEVER I’m not so sure that this is such clear cut issue that is just an infringment of free speech. Some people take gay equality seriously. Imagine a CEO that stated that Blacks or Jews or Catholics do not deserve equal rights. Imagine that said CEO gave money to hate groups dedicated to making life miserable for other, more “acceptable” minorities. Could a community say THAT is unwelcome?? If so, some of us feel that gay people deserve the same consideration. I realize this is a close call as to what is the correct thing to do, but it’s also not a trivial issue for to those of us committed to equal rights.
BillyFLA: This business is not being punished for the beliefs of its CEO, but rather for the money he gives to hate groups whose aim it to prevent a group of citizens from ever having equal rights. It’s MY belief that this gives greater weight to those who would discourage such disruptions to the civic order – the right to free speech is not without limits.
Greenwald: I actually appreciate the people like him who make so unavoidably clear that they don’t actually believe in free speech. They usually won’t expressly admit that they don’t, but what they say leaves no doubt about it. It’s clarifying.
I would say to BillyFLA that do we want to go back to the time, not so many years ago, when just the hint of being gay would result in firing, social ostracism, or worse. I want to see what the law calls marriage renamed a civil union and expanded to gays, too. BUT, the church could call it marriage whichever side they take on it! That’s liberty.