Look, let me make one thing clear: I am certain that same-sex marriage is coming. I don’t even see that as worth arguing about, not anymore. What unnerves me about the Chick-fil-A controversy is that it’s a bellwether for how traditional Christians (and Jews, and Muslims) will be treated under the new dispensation.
I am barely comforted by the fact that the First Amendment protects businesses like Chick-fil-A from the kind of viewpoint discrimination the mayors of Boston, Chicago, San Francisco, etc., were willing to inflict on it. Cornell law professor Michael Dorf explains why that’s not at all the end of the matter. Dorf says that to conclude that the “clear unconstitutionality” of the kind of discrimination proposed by these mayors settles the issue is to ignore how gray the law can be. Excerpts:
[T]he Chick-fil-A controversy raises a question that will often prove vexing, because the speech of businesses and their representatives can be a legitimate concern of local government for two main reasons: First, speech manifesting bias may hint at illegal conduct manifesting the same bias; and second, in many circumstances private speech may implicate the government itself.
Although federal law does not forbid discrimination on the basis of sexual orientation by private firms, in many places state or local law does. Of course, it is possible for the leadership of a firm to oppose same-sex marriage and simultaneously comply with such anti-discrimination laws. And indeed, a recent posting on Chick-fil-A’s website states that the company “treat[s] every person with honor, dignity and respect—regardless of their . . . sexual orientation.”
Nonetheless, it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws. After all, as I have argued at length in a recent academic paper, laws forbidding same-sex marriage can reasonably be understood as conveying a pernicious social meaning—suggesting that LGBT Americans are merely entitled to second-class citizenship. Granted, it would not be fair to conclude that a firm that opposes same-sex marriage also discriminates on the basis of sexual orientation in employment or public accommodations, but it would be fair to investigate that possibility on such grounds. Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.
Got that? If you are a Christian who opposes same-sex marriage, and you make this known publicly (through your own words, or through contributions), then you open yourself up to a government investigation, even if you have a policy of non-discrimination in your workplace. Who wants a federal investigation of their business? Better keep your mouth shut and your head down. The chilling effect.
Second, Dorf says that the law gives wide latitude to the government in deciding what kind of speech it wishes to be connected with on public property. If Chick-fil-A wanted to open a franchise in a government-owned building, or on a military base, the government may decide that it doesn’t want to be associated with a controversial company — and case law supports the government’s position:
In a nutshell, because the government would necessarily be implicated in the message that the monument conveyed. While the government would seemingly be less implicated in any message conveyed by a restaurant operating in a public park, the difference seems more one of degree than of kind.
Leaving aside the legal arguments, there are practical ones. City officials have a lot of power to make it hard on businesses to open, and to do business. A Chicago alderman — a very powerful figure in that city — has openly said that he will do whatever it takes to keep Chick-fil-A out of his ward. He has now been told that’s unconstitutional. OK, fine — but if he’s determined to make good on that, he can do all sorts of things to make life difficult for Chick-fil-A. If he does, Chick-fil-A may choose to fight it in court. After all, it’s a multibillion-dollar company. What about mom and pop businesses that can’t afford to? They would be a fool to invest in a place where the political leadership is on record as determined to harass them, not because they discriminate in the practice of their business, but because of the opinions of the owners.
Similarly, there is the shakedown model that Jesse Jackson pioneered with his Operation PUSH, and later with his lucrative Wall Street Project. It amounted to, That’s a great business you have there; shame if something happened to it. As an arbiter of racial correctness, Jackson leveraged tremendous power over businesses who were eager to get his blessing — and who changed policies and gave big contributions to his organizations to get it. The day is fast-coming when business owners will not only have to keep their mouths shut and give no money to causes labeled as anti-gay, but they will also be expected to pony up protection money to gay-rights organizations to prove their commitment to gay rights (and as insurance against government investigation).
I have my own opinion about SSM, but I don’t want to live in a world in which any normal businessman — pro-SSM or anti-SSM, or pro/anti whatever — has to live in fear that his private religious or political opinions, and giving money to support organizations that advance his viewpoint, will be subject to the equivalent of a whipping at the pillar in the public square. I have spent most of my professional life working among cultural liberals, and living in cities that are culturally liberal. In my experience, it is hard to overstate the epistemic closure and intolerance of many liberals on this topic. They consider it an open-and-shut matter, with no gray area, and no reason to give grace and tolerance to anyone on the other side of the issue. I have even heard it seriously proposed that companies should be careful about hiring people with “anti-gay” opinions, because the presence of such people could cause gay employees to feel “unsafe,” thus creating a “hostile work environment.”
You don’t think this is coming too? Chick-fil-A has not been accused of discriminating against gay folks, not in hiring nor in the way it treats its customers. It is being excoriated because the man who owns the corporation holds traditional Christian opinions about same-sex marriage, and gives money to organizations that share that view. Chick-fil-A can defend itself with its army of lawyers. Can you, when they refuse to hire you, or sic the government inspectors on you, or picket your business because they found that you signed a petition against gay marriage, or gave $25 to a campaign to support traditional marriage?
Though I am a conservative and a traditional Christian, I am gratified that ours has becoming and is becoming a country in which gay people no longer have to fear for their livelihoods and live in the closet because of their sexuality. That was cruel and unjust, and we are a better country for leaving those days behind. But we are on our way to becoming a country in which traditional Christians have to fear for their livelihoods and live in the closet because of their religious convictions. And the most right-thinking liberals among us have no problem with that, because they believe, like the most reactionary 19th-century pope, that error has no rights.