Given my position as Director of the Business Law Center at the oldest law school in Orange County; as someone who has studied business and law beyond the J.D. and M.B.A. levels; and as a published author on business, law, and religion, a number of people recently have asked why I haven't chimed in on the now-tired Chick-fil-A (CFA) flustercluck (chickens do cluck, right?). Part of the reason stems from the fact that over the past several weeks, many of my friends on all sides of the political, religious, and sexual orientation spectrums have made such in-your-face public pronouncements on the matter via social media that they have spent the past several days telling me or the world how they defriended or unfriended others due to the CFA issue. How truly sad to hear of friendships being lost over a corporate decision and people's reaction to it.
And because of that, I decided I'd finally weigh in on CFA. So if you're tired of all of this CFA dialogue, then please just skip the column and move on with your day. But in response to those who have asked for my views, this column is aimed at both the offended gay community and its allies and at the Christian conservatives and others who supported CFA by dining there in droves on Wednesday.
First, corporate doctrine states that so long as a company follows the law of a given jurisdiction and acts within the confines of its charter filed with the Secretary of State, the corporation may do what it wants. Failure to act within the charter specification is considered "ultra vires" and is illegal. Charters are particularly important for privately held companies like CFA (i.e., its shares don't trade on a public exchange), because charters are one of the few documents available to public stakeholders about the company. However, most charters today simply authorize the corporation to do all things permitted by law, and the ultra vires doctrine is rarely raised outside law schools and bar exams.
CFA's president and COO Dan Cathy claimed, however, that CFA's corporate purpose is "[t]o glorify God by being a faithful steward of all that is entrusted to us. To have a positive influence on all who come in contact with Chick-fil-A." But according to charter documents on file with the Georgia Secretary of State dating back to 1964 and charter amendments since that time, CFA's corporate purposes have changed over time, but nowhere do those documents state that the corporate purpose has ever been religious in nature. Assuming that the Secretary of State website is up to date with its filings, CFA is arguably acting ultra vires. And it's inexplicable why.
CFA could make its charter and purpose as broad or offensive to others as it wants. For example, License to Kill, Inc. incorporated in 2003. Its charter paragraph 6 set forth the company's corporate purpose, "including but not limited to ... the manufacture and marketing of tobacco products in a way that each year kills over 400,000 Americans and 4.5 million other purposes worldwide." Because the Commonwealth of Virginia blessed that corporate purpose, Licensed to Kill, Inc. became a valid corporation with a repulsive purpose (the company has since terminated). But any third party was on notice of that purpose, given the charter language, which doesn't appear to be the case with CFA. CFA is a private company, and so long as its owners don't mind CFA donating millions of dollars to FRC, which apparently embraces the disproved junk science on sexuality, the company has every right to do so without violating notions of shareholder primacy.
But corporate law aside, I'm most disappointed in how people on both sides of the divide have reacted.
If you read Cathy's original interview with the Baptist Press, he claimed CFA is "guilty as charged" regarding its stand on Biblical and family values. Nowhere in the interview did Cathy utter the terms "gay" or "lesbian" or "homosexual" or "same-sex." In fact, the people Cathy singled out were divorced people. But the Los Angeles Times took that interview and turned it into a sensationalized headline: "Is Chick-fil-A anti-gay marriage? 'Guilty as charged,' leader says." Only after the backlash that followed the Times piece and articles by others who picked up on it did Cathy appear on a radio program, indicating that "redefin[ing]" marriage was "inviting God's judgment," because of a "prideful, arrogant attitude" that has the "audacity to redefine what a marriage is all about."
OK, that's problematic. A corporate actor looked somewhat silly when he invited God's judgment on a matter, and several days later the corporation's Public Relations Director handling the matter unexpectedly died.
Regardless, biblical definitions of marriage have been redefined over time. Deuteronomy articulates specific instructions for men with multiple wives; Genesis speaks of Godly married men sleeping with concubines. Similarly, Mitt Romney's religion, governed by the Book of Mormon, has passages (and a long history of) accepting polygamous marriages. Those of you who still believe that President Obama is Muslim might therefore find that he and Romney have something in common, as the Quran, in Sura 4:3, also speaks of polygamy. But 1 Timothy 3:2 in CFA's Bible (yes, corporations tentatively can exercise religious beliefs) probably reads something to the effect of how one husband and one wife should act in a marriage. It seems to me, then, that biblical definitions of marriage have indeed been redefined over time in the Abrahamic religions.
But applying CFA's biblical definition of a religiously created institution to a civilly created institution bearing the same name but not the same benefits and obligations is erroneous. What CFA and others refuse to accept is that no audacity, arrogance, or sinful pride exists when those of us struggle to change the application of the civil (not biblical) rights and obligations associated with civilly (not religiously) created marriage.
See, civil government is the greatest discriminator of all. Government enshrined slavery as law. And government embraced laws forbidding interracial marriage. And government currently has hundreds of laws at the federal level alone that authorize government's use of force against married same-sex couples for engaging in identical conduct that heterosexually married couples engage in free from government sanction. People have said that we can get all the benefits we need through contracts that govern our relationships or powers of attorney for hospital visitation, but that's simply not correct. We need to prevent government from using its confiscatory powers that take our family's property and give it to other families because of civilly created definitions of marriage. We need to prevent the federal government from using its coercive threat of force against us as married couples for filing joint income taxes, which may be construed as tax evasion, leaving us facing jail time because the word "marriage" is unavailable to us at the federal level and in many states.
So, CFA, as long as government is in the civil marriage business, then fighting to keep same-sex couples' property from being redistributed to others and to prevent persons from being subjected to uninitiated government force isn't arrogant. It's American. Calling those of us who fight for the government to recognize our legal rights "arrogant," "prideful," or "audacious" leaves me wondering if CFA has read Matthew 7:1-5 recently.