“Civil Rights Agenda” Files Antidiscrimination Complaint Against Chick-fil-A Based on Chick-fil-A’s Speech

The complaint, filed with the Illinois Department of Human Rights, alleges that Chick-fil-A discriminated against gays in public accommodations. Now none of the allegations suggest that Chick-fil-A employees refused to serve gays, or treated gay customers differently from straight ones. Rather, the argument is that “the company’s widely published corporate philosophy, culture and policies make clear to [complainant] that as an unmarried homosexual in a ‘non-traditional’ family unit, I am inferior to married heterosexuals and therefore, unwelcome, objectionable and unacceptable to Chick-fil-A.”

The Civil Rights Agenda press release puts the matter well:

The complainants are a same-gender family with a daughter. Chick-fil-A used to be one of their favorite places to eat until Mr. Cathy’s latest statements were reported so widely. Now, they feel completely unwelcome in the establishment.

Despite the Agenda’s protestations (“The Civil Rights Agenda is quick to point out that this is not a First Amendment Issue”), the complaint is all about speech: Because the corporation’s officials are expressing views that disapprove of homosexuality, the theory goes, the government is supposed to hold the company liable — again, without any evidence that any particular person was denied service because of his homosexuality.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

But the Civil Rights Agenda is going further still: They are arguing that it violates public accommodations environment law for companies to express certain viewpoints even in their officials’ public statements. That theory is even more clearly violative of the companies’ First Amendment rights. I hope the Illinois Department of Human Rights recognizes that Illinois public accommodation law doesn’t cover such situations — but, if it does cover them, the First Amendment prevents it from being enforced.