Whatever your view, whatever your background, whatever your values, I have one goal here: to help you understand why the San Antonio City Council violated the First Amendment rights of Chick-fil-A by specifically excluding them from San Antonio Airport.
Part of me wants to stay far away from this issue…as far away as possible. I’m not writing this as clickbait. I’m not writing this to rile up people on either side of the debate. But as someone who has earned a law degree and studied the First Amendment to the U.S. Constitution closely, I cannot help but address this conjunction of travel and law.
I should not have to do this, but let me start with this disclaimer. I don’t eat at Chick-fil-A or have any sort of fealty for the company. I don’t support employment discrimination of any kind and all three of my businesses do not discriminate in the hiring of employees or in the customers we serve on the basis of sexual orientation. I welcome any employee who works hard and every customer who is willing to pay. And I also love the U.S. Constitution, a document that has stood the test of time.
With that out of the way, let’s discuss the law.
First Amendment Protects Chick-fil-A
The First Amendment protects speech. Courts, including the U.S. Supreme Court, have held this applies to government contractors. These contractors, whether persons or companies, are allowed to hold political viewpoints. Not every action, no matter how sincere, is protected. But, speech is. Courts have also held that political donations and associations are forms of speech, not unprotected action.
Robert Trevino, a San Antonio City Councilman, laid out the basis for Chick-fil-A’s denial:
With this decision, the City Council reaffirmed the work our city has done to become a champion of equality and inclusion. San Antonio is a city full of compassion, and we do not have room in our public facilities for a business with a legacy of anti-LGBTQ behavior…Everyone has a place here, and everyone should feel welcome when they walk through our airport. I look forward to the announcement of a suitable replacement by Paradies.
In essence, San Antonio told Paradies, an airport concession contractor, that it could not add a Chick-fil-A because Chick-fil-A donated money to three Christian charitable groups that, among a laundry list of values, affirm a traditional understanding of marriage.
Yes, a city council demanded that a contractor not hire a subcontractor because that subcontractor made political donations to charitable groups that take lawful but divisive positions opposed by that city councilmember and a majority of the council.
So, under that logic what’s to stop a conservative city council from blocking a long list of popular eateries because of their political donations to organizations deemed destructive and immoral…like Planned Parenthood?
The same thing: the first amendment, which protects hateful, bigoted, speech just like it protects lullabies and nursery rhymes.
Chick-fil-A responded to the news in this way:
The press release issued by councilman Roberto Trevino was the first we heard of his motion and its approval by the San Antonio city council. We wish we had the opportunity to clarify misperceptions about our company prior to the vote. We agree with the council member that everyone should feel welcome at Chick-fil-A. In fact, we have welcomed everyone in San Antonio into our 32 local stores for more than 40 years. Our local restaurants consistently give back to the San Antonio community and have awarded more than $600,000 in scholarships to Chick-fil-A restaurant team members in San Antonio.
We would welcome the opportunity to have a thoughtful dialogue with the city council and we invite all of them into our local stores to interact with the more than 2,000 team members who are serving the people of San Antonio. We hope they will experience for themselves that Chick-fil-A embraces all people, regardless of race, gender, ethnicity, sexual orientation or gender identity. We are proud of the positive impact we are making in communities across America, and specifically in San Antonio, and have been transparent about our giving on our website.
A Legal Route To Exclude Chick-Fil-A
It’s not like the City of San Antonio or Buffalo (which also announced a ban on Chick-fil-A) are out of options.
San Antonio can require all contractors to ensure that discrimination on the basis of sexual orientation does not occur. That could apply to Chick-fil-A, even as a subcontractor. And Chick-fil-A would have to obey it if it wanted to engage in business at San Antonio Airport.
As an aside, there’s no compelling evidence that Chick-fil-A, as a company policy, discriminates on the basis of sexual orientation in its business practices. It does not ask customers if they are LGBTQ before serving them a chicken sandwich nor ask their employees the same question. Discrimination lawsuits are no more prevalent at Chick-fil-A than at McDonald’s or Burger King.
And if San Antonio was smart, it would have simply made a general rule that any airport eatery must be open seven days per week in order to operate. That broad, natural regulation would have likely excluded Chick-fil-A. Even if Chick-fil-A argued that it brought in more revenue in six days than most do in seven, San Antonio would argue that it has a right to require concessioners to serve travelers every day of the week if they wish to operate at SAT. Then again, Chick-fil-A may be able to argue that this move, though neutral on its face, runs afoul of the Texas Religious Freedom and Restoration Act, which protects the exercise of religious liberty, like Sunday closures, unless the overriding state interest is compelling.
But San Antonio doesn’t want to hide its true intentions. It wants to virtue signal that it is the moral actor and that is acting in accordance to its superior moral position.
Small problem for San Antonio: the Supreme Court has consistently held that discrimination on this basis is not permitted. The law is the law. The first amendment is the First Amendment. Unpopular viewpoints cannot be squelched by the government due to their unpopularity in the form of contract exclusion.
Let’s review. This article is not in support of Chick-fil-A. Rather, it is in support of the First Amendment, which in this instance insulates Chick-fil-A from government retribution—at all levels—for its political viewpoints.
If you don’t want to support Chick-fil-A, you don’t have to eat there. Just like you don’t have to buy Starbucks Coffee or Ben and Jerry’s if you are offended by the political donations those companies make.
But to ban an eatery because of its donations or personal viewpoints of its founder is not in compliance with current First Amendment jurisprudence.
I don’t know about you, but I don’t want to live in a city that excludes people who hold unpopular viewpoints. Imagine if they start discriminating against me because they don’t like who I donate to.
The answer to speech is more speech. Truth and justice will ultimately prevail.