Abraham Maslow (1908-1970), the humanistic psychologist best known for his work on motivation — the Maslow hierarchy of needs — once famously said: “If you only have a hammer, you tend to see every problem as a nail.” About the only tool local government leaders have to bludgeon private entrepreneurs into compliance with their own social agendas is the hammer of land-use planning and zoning. Recently, several of these misguided local leaders picked up that hammer and beat up on the fast-food restaurant chain, Chick-fil-A, because they didn’t like the company president’s views on same-sex marriage.
Zoning out or otherwise, prohibiting any business that may have disfavored social views, so long as those businesses comply with federal, state, and local discrimination laws, is wrong. To allow such retaliation by local political leaders against private business is not only improper as a matter of law and public policy, but it encourages all manner of abuse of the local regulatory process.
The controversy arose when the Chick-fil-A president, Dan Cathy, in an interview with the Baptist Press was quoted as saying: “We are very much supportive of the family — the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that.” He warned that our country, in furthering the legitimacy of gay and lesbian marriages, was “inviting God’s judgment.” Cathy’s conservative social and religious views were already well-known. He has given millions of dollars to organizations opposing gay marriage and he wouldn’t allow his Chick-fil-A restaurants to be open on Sundays because he wanted to be sure his employees could attend church.
When Cathy’s views on gay and lesbian marriages were picked up by the media as a result of the interview, local officials saw a great target of opportunity. Chicago Mayor Rahm Emanuel stepped right up to say that “Chick-fil-A’s values are not Chicago values….They disrespect our fellow neighbors and residents.” He said he would support Alderman Proco “Joe” Moreno’s pledge to stop Chick-fil-A from building in a specific Chicago neighborhood. Moreno described Cathy’s comments as “bigoted, homophobic.” In Moreno’s mind, “You have the right to say what you want to say, but zoning is not a right.”
Boston Mayor Thomas Menino fired his own shot heard ’round the world: “Chick-fil-A doesn’t belong in Boston,” and he threatened that licenses for Chick-fil-A would not be forthcoming in Beantown. “You can’t have a business in the City of Boston that discriminates against a population. We’re an open city. We’re a city that’s at the forefront of inclusion.”
All of this hullabaloo led to the near-comical standoff of two celebrations: “Chick-fil-A Appreciation Day” followed two days later by the “National Same Sex Kiss Day,” as the supporters of Cathy’s outspoken opposition to same-sex marriage lined up against the opponents. Who won is unclear, but Chick-fil-A announced that sales on the Appreciation Day were “record-setting,” proving the maxim that any publicity is good publicity.
This posturing by local politicians is nonsense, of course. Whether a business owner supports expanding the civil rights of the LGBTQ community or not has nothing to do with local regulatory approvals, including zoning. We suppose that if a mayor — or his or her constituents, because what we’re really talking about here is local politics — were clearly aligned in favor of vegetarianism, they might be disposed to limit the floor area of grocery stores that could be used for the sale of meat. This utterly improbable hypothetical only comes to mind because local governments have enacted, and successfully defended, sometimes questionable regulations in furtherance of their reasonable and responsible efforts to address problems in the public interest.
Following the 1992 Los Angeles riots, for example, the city imposed conditional use permit requirements for all new alcohol outlets in the city and added new requirements for those rebuilding, such as making them “agree to remove graffiti promptly, provide adequate lighting, remove trash, provide a security guard and, in some instances, limit hours of operation.” The California Court of Appeals upheld the city’s ordinance finding that it was a “valid exercise of the City’s authority to enact zoning and land-use regulations.”
Similarly, courts have upheld land-use regulations limiting the sale of tobacco to light industrial or industrial zones and requiring separation of sales outlets from schools, playgrounds, and residential areas. And more recently, cities have begun to restrict fast-food restaurants in their efforts to control obesity or simply because they don’t like them. San Francisco established the Geary Boulevard Fast Food Subdistrict and prohibited large fast-food restaurants in the area, until abandoning the restrictions a year ago in an effort “to support and promote the economic vibrancy of the area.”
There is nothing inherently wrong in pushing the envelope of land-use regulatory authority at the local level so long as government acts within the four corners of the “police power” delegated to it from the state to preserve, protect, and promote the public’s health, safety, and general welfare. We can accept even the most ambitious local regulation when it concerns public health, as in alcohol, tobacco, and obesity. But, telling Chick-fil-A or anyone else having some social views local pols may not like, that they will be denied land-use approvals violates their constitutional right to due process because it is not reasonably related to any permissible governmental objective.•