'Save Chick-fil-A'? Texas Supreme Court is weighing 2019 state law

When the Texas Legislature met in 2019, Republicans and their conservative Christian allies worked hard to make an example of San Antonio after city leaders cracked down on a beloved institution — Chick-fil-A, a popular sandwich chain that says its corporate purpose is "to glorify God."

The controversy began when the San Antonio City Council, responding to complaints that Chick-fil-A's charitable donations went to Christian organizations that opposed same-sex marriage and other LGBTQ-friendly policies, voted in March 2019 to reject the chain as a vender at the city's airport.

With the Legislature in session at the time, Republican lawmakers quickly responded with Senate Bill 1978, dubbed the "Save Chick-fil-A" bill, which banned governments from taking "any adverse action" against businesses based on their support for a religious organization.

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Now, in a case before the Texas Supreme Court, the limits and boundaries of that law are under review.

SB 1978 empowers ordinary citizens to enforce its restrictions by filing lawsuits much like the six-week abortion ban that took effect in September and is currently before the U.S. Supreme Court.

Five San Antonio-area residents, with support from the San Antonio Family Association, sued the city shortly after SB 1978 took effect on Sept. 1, 2019, arguing that Chick-fil-A was improperly singled out for supporting "Bible-believing Christian organizations" that oppose "homosexual behavior and same-sex marriage," according to their lawsuit.

The city moved to dismiss the complaint, but the trial judge refused, prompting an appeal that succeeded when the 4th Court of Appeals ruled in August 2020 that San Antonio was entitled to governmental immunity that barred the lawsuit.

Then it was the residents' turn to appeal, putting the matter before the Texas Supreme Court.

Immunity from lawsuits?

Urging the all-Republican court to reinstate the lawsuit during oral arguments in October, lawyer Jonathan Mitchell said the 2019 law clearly states that immunity is not available when governments are accused of violating — or threatening to violate — SB 1978.

The mere accusation of a violation is all that is needed for the lawsuit to proceed, even though the plaintiffs in this case don't yet have proof that the law was broken, Mitchell said.

But Neel Lane, a lawyer for San Antonio, said lawsuits must make a viable accusation before immunity can be waived. The residents' lawsuit, however, complained only of actions taken by the City Council before the law took effect — and SB 1978 does not apply retroactively, he said.

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In fact, Lane said, San Antonio in 2020 invited Chick-fil-A to open a location at the airport, but the company declined.

"They didn't need to rush to courthouse," he said of the plaintiffs. "Had they waited until Chick-fil-A was asked to come back and to take the slot that had been originally denied it, would they even have filed this lawsuit?"

But Mitchell said the lawsuit, though lacking in details, does accuse San Antonio leaders of continuing to violate the law by working to implement the council-approved contract that excluded Chick-fil-A.

The plaintiffs, he argued, were denied an opportunity to unearth violations and flesh out other details during pretrial discovery when the city filed its challenge to their lawsuit.

"We've alleged that the city is taking actions to implement (the contract). We don't detail those actions," Mitchell said. "We don't need to."

Justice Jeff Boyd asked what actions would constitute a violation.

"Anything the city did to put a different vender in that spot that would've gone to Chick-fil-A is an action to exclude Chick-fil-A from a property," Mitchell said. "What exactly those actions are will come out in discovery."

But Lane said it's not enough "to shoot first and ask questions later" by making vague accusations in a lawsuit.

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It wasn't against the law to exclude Chick-fil-A for supporting religious charities when the City Council approved the airport vendor contract, Lane said, likening the situation to an intersection that gets a stop sign. A driver can't be ticketed for failing to stop before the sign was erected, nor could police conclude that his previous behavior makes it inevitable that he will run the stop sign in the future.

Justice Jimmy Blacklock asked how San Antonio intends to proceed: "(The plaintiffs') position is that your intention is to carry forward with the exclusion of Chick-fil-A. Is your position, no it isn't?"

"No it isn't. Absolutely not, your honor," Lane replied. "I will tell you that the City of San Antonio will comply with (SB 1978) in every step it takes."

Can anyone sue to help Chick-fil-A?

A second issue is whether SB 1978 properly gives random citizens standing to file lawsuits to enforce the law's restrictions.

Lane argued that the Texas Constitution requires plaintiffs to prove that they've been personally injured by a government. Depriving somebody of a preferred chicken sandwich does not qualify as harm, he said.

Unless or until the constitution is amended to say otherwise, "the plaintiff has to show that they're injured by the action," Lane said.

Mitchell disagreed, arguing that SB 1978 confers standing to anybody who accuses a government of taking action against a company for supporting a religious organization.

"Any citizen can sue for a violation?" Boyd asked.

"Absolutely," Mitchell replied. "They have to allege a violation of the statute. That's enough to confer standing. Again, it doesn't mean they win ... but it's enough to get you through the courtroom door."

The Supreme Court has no deadline to issue a decision but is expected to rule by the end of June.

This story has been corrected to remove a statement that the Texas attorney general also can sue to enforce SB 1978.

This article originally appeared on Austin American-Statesman: Texas Supreme Court examining 2019 'Save Chick-fil-A' bill