by R. Tamara de Silva
August 1, 2012
Chicago Mayor Rahm Emanuel is understandably concerned by the wave of mostly gang-related shootings that have claimed in excess of 238 lives in Chicago this year. But he is also deeply bothered by the restaurant chain, Chick-Fil-A. So much so that Mayor Emanuel has decided that the City of Chicago will ban it entirely--the restaurant that is-not the gangs. This was in response to Chick-Fil-A's president Dan Cathy stating that he is opposed to gay marriage because of his Christian religious beliefs. The expression of personal belief should not be anyone's idea of the news, nor was Dan Cathy, despite his seeming subsequent canonization by the Conservative press, particularly important before uttering these words. After all, we do not live in an America as in other parts of the world where expressed religious beliefs are to be met with state persecution, stoning or in this instance, banning.
The Mayor's action would seem to plainly violate the First Amendment and it does. Mayor Emanuel's announcement of the ban is an unfortunate example of local government officials who know they can act in violation of the United States Constitution because the Judiciary has chipped away at the Equal Protection Clause by systematically granting elected officials qualified and absolute immunity. This said, it is not a certainty that Mayor Emanuel would successfully plead a defense of immunity because his actions are not only in plain violation of the First Amendment, his motives are Constitutionally suspect.
It is a violation of the Equal Protection Clause for Mayor Emanuel to ban Chick-Fil-A as doing so would violate the First Amendment rights of Dan Cathy and his company. Yet many municipal officials know that the law grants them near absolute immunity from prosecution even though they may violate the Constitution because of the principle of immunity.
It was not always so. Following Reconstruction, the Radical Republican dominated 42nd Congress enacted Section 1983 to combat the Klu Klux Klan's actions that hampered Reconstruction efforts in the Southern States. 42 United States Code-Section 1983 of the Klu Klux Klan Act of 1871 imposed civil liability on every person who would under color of law, deprive another of a Federal or Constitutional right. In this case, the Mayor as a public official is acting under the "color of law" to deny Mr. Cathy his First Amendment right of speech and the exercise of his religious beliefs.
Section 1983 has not materially changed since its enactment in 1871 other than for the piecemeal repeal of it by the Judiciary and the Judiciary's nullification of the legislative intent of Section 1983 by broader and broader application of immunity to Federal officials, then state officials ...or as in this instance, the Mayor of Chicago.
The concept of immunity being a bar to Section 1983 civil suits is a creation of the Supreme Court. Presidents of the United States are protected by absolute immunity in civil actions. When the Judiciary began to grant absolute immunity to Federal agencies, many of these agencies were organized and operated under the procedural safeguards provided by the Administrative Procedure Act. These safeguards seek to prevent violations of due process and equal protection.
Mayors usually enjoy a lesser standard of immunity from civil suits for violations of Section 1983 called, qualified immunity. Immunity is an affirmative defense in the law, which means that a defendant must invoke it and then prove it applies as a shield against suit. The Supreme Court's reasoning for inventing immunity as a bar to Section 1983 suits was to allow public officials to perform their functions without continually being hailed into court by a disgruntled public, while also allowing civil actions, in the case of qualified immunity, where an official violates a clearly established law or right and has a malicious or suspect reason for doing so;
[T]he public interest requires decisions and actions to enforce laws for the protection of the public . . . . Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity -- absolute or qualified -- for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.
There is a legitimate need for granting absolute immunity for Federal judges and Federal departments that operate with procedural safeguards. However, the public interest would be better served were the courts to more selectively scrutinize grants of immunity to local elected officials whose power can tend to become absolute and unfettered by anything but the Federal courts. The public good may be better served by having public officials acting cautiously in the shadow of Section 1983 than as in this case by mayors, who have no fear of personal liability for anything they do-not even grave offense to the First Amendment.
History proves that political values are fickle and cultural mores change, but banning is an extraordinary thing. In 1943, Branch Rickey, who was president of the Brooklyn Dodgers decided he would recruit African Americans to play for the Dodgers. This was a monumental decision because at that point there was an unspoken "gentleman's agreement" and absolute ban on having African American baseball players that had been in effect since the 1880s. In 1945, Branch Rickey signed Jackie Robinson to a minor league contract. In 1947, the legendary Jackie Robinson walked onto Ebbets Field to play for the Dodgers at that same moment breaking the color barrier in major league baseball and violating its ban. This was many years before the United States Supreme Court would decide to outlaw school segregation in Brown v. Board of Education and long before Rosa Parks would refuse to give up her seat on the Cleveland Avenue bus.
On the scheme of things, to be banned by a government or state intolerant of your views, lifestyle or color is not as nearly as bad as being stoned to death, but it can have severe if not fatal economic repercussions. It is also profoundly at war with the United States Constitution. I recently argued before the Court of Appeals for the Seventh Circuit, unsuccessfully, on the perils of granting absolute immunity to local government officials, who had decided to ban one person from part of City Hall, simply because they could-the officials never offered a reason, knowing they did not need one.
In zoning matters, the City of Chicago and its alderpeople particularly enjoy flexing their political muscle and clout. The courts grant them broad discretion in blocking adult businesses and religious institutions based on some expressed "legitimate government interest." Their interpretation of this term is almost never questioned and zoning matters are so inherently boring that no one else can reasonably care. Aldermen also have the power to issue land use permissions and very few people have the financial resources to disagree with them on their zoning decisions by hailing them into Federal court.
To be fair, even for a city second to none in the number of aldermen to be jailed--at least in its making of zoning decisions, other than allowing political expression under the First Amendment through graft, bribery and campaign contributions for preferential treatment, it is an extraordinary thing-even in Chicago-to announce a zoning decision based upon the expression of a religious view.
Admittedly there are legitimate political motives for how politicians act-the aldermen in question and Mayor Emanuel care about their voting blocks and are likely conforming their speech in the interests of their re-elections and to pander to their electorate. They do not need to care about the Constitution anymore than the politicians who rabidly supported Jim Crow laws. Fortunately for Americans, our freedom of expression is not held hostage to political vicissitudes or cultural mores. We do not live under the Taliban. Those that support Mayor Emanuel's ban should remember what it means to have the government discriminate against you simply because they did not like your politics or the looks of you. The only reason Chick-Fil-A matters is that the protections of civil liberty granted by the United States Constitution must not be denied to anyone based on their expression of their views-whatever they may be and however much we may disagree with them. We have been down this road before remember?@
R. Tamara de Silva
August 1, 2012
R. Tamara de Silva is an independent trader and lawyer
1. The concept of immunity did exist in the common law.
2. Nixon v. Fitzgerald, 457 U.S. 732 (1982)
3. Scheuer v. Rhodes, 416 U.S. 232, 241-42 (1974)