Dershowitz: Anti-Chick-fil-A Mayors 'Showing Terrible Intolerance'

Sunday, 29 Jul 2012 12:08 PM

By Patrick Hobin and John Bachman

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Mayors who have told the owners of Chick-fil-A that the restaurant chain is not welcome in their cities are displaying “terrible intolerance,” Harvard law professor Alan Dershowitz told Newsmax.TV in an exclusive interview.

No city is free to discriminate against a company based on the views of its owners, the renowned criminal appeals attorney said.

“If you don’t like their principles, go to McDonald’s,” said Dershowitz.

“I have no idea what McDonald’s principles are. I generally don’t select my chicken or my hamburgers based on the personal ideology of the person who is either flipping the hamburgers or making the money back at corporate headquarters.

Watch our exclusive interview. Story continues below.

“But if people want to do that, they’re free to do it. What a city is not free to do is to discriminate against a company based on the views, religious or secular, of its owners.

Special Report: Obama’s Assault on Religion — Click Here Now

The Chick-fil-A controversy erupted when company president Dan Cathy told the Baptist Press that the chain, which puts faith ahead of profits by closing on Sundays, was “guilty as charged” for backing the “biblical definition of a family,” and opposing gay marriage.

Dershowitz called Chick-fil-A’s corporate mission, which invokes the glory of God, is “nothing surprising, nothing which should upset anybody.”

Mayors Thomas Menino of Boston and Rahm Emanuel of Chicago, vowed to stop further expansion of the restaurants in their cities. Emanuel weighed in after Chicago Alderman Joe Moreno said he would like to block the chain from opening its second Chicago location because of Cathy’s remarks.



Moreno, Dershowitz said, is “clearly guilty of discrimination because he has made it clear that he’s going to use his power to deny permits, to make it harder for that company to come to his district in Chicago based, purely, on the ideology of the owner of the company.

“There is no evidence that the company itself discriminates against gays, either in hiring or firing or who it will serve or how it will treat gay people when they walk through the door,” he pointed out.

The move is “state-sponsored discrimination based on pure ideology in expression of religious views” Dershowitz said — and that is unconstitutional. “What Mayor Menino did was, as I understand it, just express his own views saying that, as far as he’s concerned, they wouldn’t be welcome in Boston. But as far I know, he hasn’t done anything to prevent them from coming in and, indeed, he’s even taken back some of his comments previously made.”

Cathy’s public stance could have a downside for the company, Dershowitz believes. It could make it harder for the company to defend a discrimination lawsuit brought by a disgruntled gay employee or customer. “The atmospherics would be very much against the owner because people presume that ideology sometimes gets reflected in action,” he said.

Still, the burden would be on the person suing to show what actions the company took or failed to take.

Dershowitz is more concerned about the implications should cities make decisions based on the personal views of applicants. “If you have strong views on any other issue, and if a city or a mayor doesn’t agree with your strong views, can they make it more difficult for you to set up shop in their city? I would hope not,” he said.

Special Report: Obama’s Assault on Religion — Click Here Now

“The marketplace of ideas must remain open and the marketplace for chicken must remain open, and let people decide to buy their chicken either on the quality of the chicken or on the ideas of the owner of the chicken company.

“But the state has no role to play in picking and choosing one ideology over the other.”

However, Dershowitz said, presidents and CEOs of public companies are “not entitled to send corporate funds to pursue their own private religious views. They have fiduciary obligations to their stockholders and they must do everything to maximize profits within ethical limits and principles. And what they can’t do is use their own religious beliefs in a way that minimizes profits or reduces profits.

“If that happens,” he said, “then stockholders can bring derivative suits against corporations for failure to comply with their fiduciary duty. But as long as it doesn’t interfere with the profits of company, then a corporate president has the right to express any religious, political, ideological, ethical views he or she chooses to. That’s what the First Amendment protects.”

Dershowitz said he “despises” the views expressed by Cathy but defends his right to express them “as long as he doesn’t act on them in a way that discriminates against protected classes.”

Some in the gay community are “trying to silence the views of people they disagree with,” Dershowitz said. “Let them debate those views in the marketplace of ideas. I hope they will win. Let people contribute the way the president of Amazon has now contributed more than $1 million to help win a referendum in Washington State for gay marriage. That’s the way politics is supposed to operate.

“The marketplace of ideas must be kept open and no city or state can make it more difficult for people with views they disagree with to make a living in that town or city, particularly at a time when there’s so much unemployment,” Dershowitz said. “The idea that an alderman would keep a business out of Chicago is not only a violation of the Constitution, but doesn’t make a lot of common sense.”

Dershowitz said Cathy’s views are shared by a huge number — “if not a majority, certainly, a very large percentage” — of Americans.

“We’re not talking about somebody who holds views that are extraordinarily remarkable in America. This is a majority view or at least a very substantial view.”

The idea that a few politicians would impose their views on others “tells us something about intolerance,” Dershowitz said.

Special Report: Obama’s Assault on Religion — Click Here Now

“There’s a lot of intolerance. Ten or 20 years ago, the same people who are keeping these people out of the city probably would try to keep gay people out of owning restaurants.

“When you discriminate against anyone, you discriminate against everyone. It’s a display of terrible intolerance.”

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