Call this decision Friday by the Texas Supreme Court one based on governmental immunity – or failure to properly disprove it – for violating an ostensible right to order a Chick-fil-A chicken sandwich at the San Antonio International Airport.
Of course the issue is more complicated in this age of culture wars when plaintiffs may want to order their chicken sandwiches and maybe eat them too.
The petitioners before the Supreme Court are five people from Bexar and adjoining counties who say they use the airport and want San Antonio enjoined from violating a 2019 law – the “Save Chick-fil-A” law.
The law creates a private opportunity to sue the city if the city, as alleged in this case, denies Chick-fil-A an airport restaurant location because of the company’s alleged financial support of religious organizations that promote anti-LGBTQ activism. The statute prohibits a government from taking any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or support of a religious organization.
In its opinion the court noted that Councilmember Roberto Treviño objected to a concession agreement allowing Chick-fil-A its concourse location and “announced that he wanted Chick-fil-A banned from the San Antonio airport.”
“The inclusion of Chick-fil-A as a national brand tenant is something I cannot support,” the court quoted Treviño from council deliberations. “The heart of the LGBTQ community … has come together to voice its disapproval of this proposal because it includes a company with a legacy of anti-LGBTQ behavior.”
The problem was that the council acted months before the Texas Legislature passed the Save Chick-fil-A law. The law waives governmental immunity for someone who challenges it.
The trial court denied the city’s dismissal motion, based on immunity and standing, but the San Antonio Court of Appeals in Von Dohlen v. San Antonio reversed, holding the plaintiffs could plead immunity because the law post-dated the council’s action to bar Chick-fil-A airport location. The law was not retroactive.
The statute bans a government from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.” As the court notes, the law defines adverse action to mean “any action taken by a governmental entity” – pertinent in this suit for injunctive relief – to exclude “or otherwise deny” any contract because of a person’s religious beliefs.
In a 7-2 majority opinion, Justice Rebeca Huddle held the immunity waiver was not properly alleged but remanded the case to the trial court to give the plaintiffs another bite at the sandwich – another opportunity to prove jurisdictional facts that came after the Legislature passed the law. The Supreme Court’s decision is 20-0725.
”We hold that petitioners’ live pleading does not demonstrate a waiver of governmental immunity. But because the pleading does not affirmatively negate the existence of jurisdiction, we reverse the court of appeals’ judgment and remand to allow petitioners an opportunity to replead.”
Justice Jimmy Blacklock, joined by John Devine, the developing conservative bloc on many such matters, separately concurred but did not join the majority. “The problem for the Court’s approach, as I see it,” Justice Blacklock wrote, “is that the city council’s vote was not an isolated act of discrimination that had come and gone by the time Chapter 2400 went into effect. Instead, the vote established a forward-looking policy under which city staff were directed to pursue the exclusion of Chick-fil-A from the airport’s concessions contract.”
For petitioners: Jonathan F. Mitchell (presented oral argument) of Mitchell Law PLLC, Austin, and Charles W. Fillmore and H. Dustin Fillmore of the Fillmore Law Firm, Fort Worth.
For respondent San Antonio: Daniel McNeel Lane Jr. (oral argument), Aimee Vidaurri and Peyton L. Craig of Norton Rose Fulbright, San Antonio.