12.27.13 6:45 PM ET
The NCAA’s Big Gay Choice: Chick-fil-A or Equality?
The NCAA is facing a momentous decision in 2014: Will it stop partnering with Chick-fil-A—or revise its bylaws so it can support discrimination against gay Americans?
The choice won’t be easy. The NCAA has a long history of doing business with Chick-fil-A, which became the title sponsor of a NCAA college football bowl game in 1998. And Tuesday night is the seventh annual Chick fil-A Bowl, which the NCAA’s selection committee earlier this year named “one of an elite group of six bowl games to host the new College Football Playoff” system that kicks off in 2014.
But let’s be brutally honest. Chick-fil-A is the corporate poster child for opposition to same-sex marriage. And it appears to have chosen that position deliberately. Not only has Chick-fil-A CEO Dan Cathy said his company supports “the biblical definition of the family unit,” but the company’s charitable arm also has donated millions to anti-LGBT organizations.
And earlier this year, when the U.S. Supreme Court struck down the Defense of Marriage Act, Cathy voiced his disapproval with a tweet: “Sad day for our nation; founding fathers would be ashamed of our gen. to abandon wisdom of the ages re: cornerstone of strong societies.”
Although I passionately disagree with Cathy on same-sex marriage, my issue is not with him. Indeed, I defend his right to practice his faith and advocate for his political and religious views.
My issue is with the NCAA, the governing body for college sporting events, founded more than 100 years ago to protect student athletes. The NCAA’s own bylaws appear to prevent it from partnering with Chick-fil-A. Specifically, Section 2.6, “The Principle of Nondiscrimination,” provides that “The Association shall promote an atmosphere of respect for and sensitivity to the dignity of every person.”
NCAA bylaws also mandate a spirit of inclusiveness by expressly prohibiting discrimination for any reason: “It is the policy of the Association to refrain from discrimination with respect to its governance policies, educational programs, activities and employment policies including on the basis of age, color, disability, gender, national origin, race, religion, creed or sexual orientation.”
Given the court decisions this year on both the federal and state level, from a legal point of view one can no longer argue that laws opposing same-sex marriage are anything but discrimination against Americans based solely upon their sexual orientation. The U.S. Supreme Court decision in June striking down DOMA found that the law “violates basic due process and equal protection principles applicable to the Federal Government” by excluding gay married couples from federal benefits offered to straight married couples.
Courts in New Mexico, New Jersey, Utah, and Ohio have come to similar conclusions since then. Just a week ago, the New Mexico Supreme Court ruled: “Barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause…”
And last week, federal district court Judge Richard Shelby struck down not only Utah’s statutes banning same-sex marriage but also an amendment to the state’s constitution passed by voters in 2004. True, the case is on appeal, but its legal reasoning is still persuasive. As Judge Shelby noted, the U.S. Supreme Court has long held both that the right to marry is “fundamental” and that “a person must be free to make personal decisions related to marriage without unjustified government interference.”
Judge Shelby also made a compelling point about the similarities between past court cases addressing laws barring interracial marriage and present-day cases dealing with prohibitions against same-sex marriage. Shelby noted that in 1966, attorneys for the commonwealth of Virginia, seeking to uphold laws that banned interracial marriage in Loving v. Virginia, were making arguments that “are almost identical to the assertions made by the State of Utah in support of Utah’s laws prohibiting same-sex marriage.” Both, for example, argued that the kind of marriage they opposed “constitutes a threat to society.”
But the statement from Judge Shelby that may be the most troubling, from the point of view of the NCAA’s bylaws, is this: Barring same-sex marriage “demeans the dignity of same-sex couples.” The NCAA bylaws, meanwhile, demand that it “shall promote an atmosphere of respect for and sensitivity to the dignity of every person.”
How can the NCAA promote an “atmosphere of respect” and the “dignity of every person” when it allows an NCAA sporting event to be named for a company that publicly opposes equality for all Americans solely based on sexual orientation?
Bottom line: Dan Cathy and other conservatives have the constitutional right to advocate banning gay marriage. They have just chosen the Bible over the U.S. Constitution.