Chicago’s Unconstitutional Attack on Chick-fil-A

Josh Barro is the lead writer for the Ticker, Bloomberg View's blog on economics, finance and politics. His primary areas of interest include tax and fiscal policy, state and local government, and planning and land use.
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In Chicago, each local alderman has de facto control over neighborhood zoning. And Alderman Proco “Joe” Moreno has announced that Chick-fil-A is not welcome to build a planned restaurant in his Logan Square ward because of Chief Executive Officer Dan Cathy’s comments in opposition to gay marriage.

The Chicago Tribune reports:

"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.

Moreno stated his position in strong terms, referring to Cathy's "bigoted, homophobic comments" in a proposed opinion page piece that an aide also sent to Tribune reporters. "Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward.”

This isn’t just bad policy; it’s unconstitutional. Local governments generally have broad discretion over zoning, but they cannot use it to violate the constitutional rights of landowners. You can block a project because you think it’s too big but not because the developer is black, wants to build a Mosque or opposes gay marriage.

This issue last popped up in the debate over the so-called Ground Zero Mosque, whose opponents floated various wrongheaded, and unconstitutional, strategies to block its developers from building. As UCLA Law Professor Eugene Volokh wrote at the time:

The legal issue is open and shut. ... The Free Speech Clause means that the government generally may not discriminate an entity because of what it says or teaches. ... This means that the government may not refuse a zoning permit to a group because it’s Muslim, or Tea Party, or Socialist, or anti-gay-rights.

Often, a government will announce a pretextual reason for blocking a development that does not violate the constitution. But in this instance, Moreno has been absolutely clear that he is going after Chick-fil-A because of its CEO’s remarks.

Private action against Chick-fil-A is all well and good. I didn’t like Cathy’s comments either or the effort to euphemistically dress up anti-gay views as support for “biblical" marriage. But it’s not the government’s place to decide what things are OK to say, nor to use the zoning code to punish people who say things it objects to.

(Josh Barro is lead writer for the Ticker. E-mail him and follow him on Twitter.)

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