The San Antonio city council recently voted to exclude Chick-fil-A from its list of airport vendors based on the company’s views on the LGBTQ community. Since then, Texas Attorney General Ken Paxton has opened an investigation into whether the city violated state law and asked the U.S. Secretary of Transportation to explore whether the city violated federal law.
“On the one hand, you have the city of San Antonio running a business – the airport, and related restaurants – as opposed to a ‘traditional’ government function like a public park,” said Dallas attorney David Coale of Lynn Pinker Cox & Hurst. “In that setting, the city has a clear interest in anti-discrimination policy as well as an interest in its overall image.”
But, Coale says Chick-fil-A has two related arguments that bolster its case against removal from the airport. “One, it has a right to engage in political advocacy outside of this business setting, and two, that advocacy has nothing to do with the operation of the airport. The city’s legitimate and powerful interests in running its airport the right way is just not in play.”
“So, in sum, the City starts out ahead, but Chick-fil-A could catch up if it shows that this decision was based solely on its unrelated speech rather than a standard contract-procurement process.”
Coale also adds that the underlying issue is the broader question of “unconstitutional conditions.”
“Can the government do indirectly what it cannot do directly? The government clearly cannot ban Chick-fil-A from giving to groups with certain policy views about gay rights. Can it discourage Chick-fil-A from doing so by putting strings on its government contracts? That’s a complex area of law without a lot of clear, general answers.
“The 55-mph speed limit is the most famous example of this issue – Congress cannot directly set speed limits on state highways because, by definition, they don’t involve interstate commerce. But it could condition federal highway funds on states changing their local speed limits to 55 mph.”
For more information, contact Sophia Reza or 800-559-4534.