There’s quite a bit of Chicago news worth commenting on today. Chicago 1st Ward Alderman Joe Moreno has inserted himself into the Chick-Fil-A controversy. I haven’t been following the controversy closely but my understanding is that the fast food chain’s owner is a vocal opponent of gay marriage. Alderman Moreno has moved to deny the chain a zoning permit to build a store in his ward:
A Chicago alderman wants to kill Chick-fil-A’s plans to build a restaurant in his increasingly trendy Northwest Side ward because the fast-food chain’s top executive vocally opposes gay marriage.
Ald.Proco “Joe” Moreno announced this week that he will block Chick-fil-A’s effort to build its second Chicago store, which would be in the Logan Square neighborhood, following company President Dan Cathy’s remarks last week that he was “guilty as charged” for supporting the biblical definition of marriage as between a man and woman.
“If you are discriminating against a segment of the community, I don’t want you in the 1st Ward,” Moreno told the Tribune on Tuesday.
For those of you who aren’t familiar with Chicago’s system, city council members, known as aldermen, have great influence over the building permits issued in their wards. The city does have a building permit department but aldermen must sign off on just about anything built in their wards and they have, essentially, unlimited discretion in that area.
I think there are legitimate reasons for such a system. Aldermen provide local knowledge, are aware of local conditions, and act as the city’s interface with the people of the ward. I’m not as sure that this is a legitimate exercise of discretion on Ald. Moreno’s part. I believe there is an abundance of case law limiting the denial of permits and variances to cases other than the ones Ald. Moreno cites.
I have been unable to identify any Chicago-specific opinion polling on this subject. I’m sure there is some somewhere. I suspect that Chicagoans, like other Americans, are closely divided on this subject.
For me the essential question about denying Chick-Fil-A the right to open a store in the 1st Ward is the legitimacy and, indeed, prudence of rejecting businesses not because of what they do but because of what their absent owners say. That’s troubling to me. It seems to me that if Chick-Fil-A is unable to make it in the 1st Ward because customers won’t patronize a store whose owner espouses the views held by Chick-Fil-A’s, that’s Chick-Fil-A’s lookout. In rejecting Chick-Fil-A’s application, Ald. Moreno is also rejecting the sales tax revenue and jobs that the store will bring.
Eugene Volokh lends some support to what I suggested in my post:
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.
And this is so even if there is no statutory right to a particular kind of building permit (and I don’t know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights. It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law — but Alderman Moreno, Mayor Menino, and, apparently, Mayor Emanuel (if his statement is quoted in context), seem to either not know or not care about the law.
and, as pointed out in comments, the taxpayers of Chicago are on the hook for Ald. Merino’s misfeasance. If Chick-Fil-A elects to sue the city, the city will lose, pay lawyers’ fees, court costs, and whatever judgement is levied. This is no small matter. In 2010 alone Chicago spent $85 million defending against lawsuits. Further tens of millions are pending in cases the city is trying to settle right now.
I honestly don’t see what recourse the people of Chicago have against this sort of thing. Only the voters of the 1st Ward vote for the alderman of the 1st Ward. Once he’s been elected he’ll serve his full term, come hell, high water, or law suit. I don’t think we should pay for aldermanic overreaching any more than we should pay for police chiefs torturing people that have been arrested. The settlements imply there’s something we could have done about it. There wasn’t. No one is ever elected or appointed to violate the law.