Written by Don Byrd

Can a city council ban a vendor from its airport because of religiously-motivated company policies? An investigation announced by Texas Governor Ken Paxton may ask that question, testing the reach of a corporation’s claim to religious liberty in the process. The announcement was made in letters and a press release issued by Paxton last week after the San Antonio City Council voted to exclude Chik-fil-A from its airport contract, citing what was called “a legacy of anti-LGBT behavior” from the company.

San Antonio City Councilman Robert Trevino, who made the motion to exclude the restaurant, said “[e]veryone has a place here, and everyone should feel welcome when they walk through our airport.”

In a letter to Transportation Secretary Elaine Chao, Paxton also requested that the Department open its own investigation based on the federal constitution, citing Supreme Court decisions from the last five years:

The City’s decision to specifically exclude Chick-fil-A from a government program based on the sincerely-held religious beliefs of its leadership raises serious constitutional questions. As you are no doubt aware, the Supreme Court has affirmed that the Free Exercise Clause protects individuals and organizations of faith alike. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). The Court has also found that exclusion of an entity from participating in a generally available government benefit or program will violate the Free Exercise Clause in most circumstances. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). In addition, the Supreme Court has soundly rebuked state actors for actions based on animosity to religious belief similar to those in question here. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

In another fairly recent case with similar overtones, Michigan’s East Lansing farmer’s market was ordered by a federal district judge to accept a vendor it excluded for refusing to host same-sex weddings. In issuing an injunction, the judge found the vendor likely to prevail in a religious discrimination lawsuit, citing the city’s apparent hostility to the vendor’s religion and religious conduct.

Will the same reasoning require the San Antonio airport to allow Chik-fil-A on the premises? Stay tuned.