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Texas Supreme Court hears oral arguments in San Antonio's 2019 Chick-fil-A case

A Chick-fil-A restaurant on Fredericksburg Road in Balcones Heights.
Bri Kirkham | Texas Public Radio

In the history of Texas, never has a chicken sandwich been so contentious.

The Supreme Court of Texas heard oral arguments Thursday in the now two-year-old case involving the exclusion of Chick-fil-A city contract in the San Antonio International Airport.

In March 2019, the San Antonio city council voted to exclude Chick-Fil-A from an airport contract, with then-City Councilman Roberto Trevino citing the company’s history of supporting anti-LGBTQ organizations.

The Texas legislature passed a law five months later to protect companies like Chick-Fil-A from being penalized for supporting ‘religious’ causes. It allows citizens to sue on the sandwich-makers’ behalf despite the poultry-enthusiast not being a party to the lawsuit.

Five San Antonio residents — including failed far-right city council candidate Patrick Von Dohlen — sued after the law went into effect in September 2019.

San Antonio has always maintained that the law should not apply to the contract because it was not the law then and is not retroactive.

“The Fourth Court of Appeals in San Antonio correctly held that the plaintiffs cannot convert Chapter 2400 of the Texas Government Code into a retroactive statute,” said Laura Mayes, spokesperson for the city.

Plaintiffs lawyer Jonathan Mitchell argued to Texas Supreme Court justices that while they agree the contract vote took place prior to the law, several of the city's actions took place afterwards.

Jonathan Mitchell (left) argues to the Supreme Court of Texas. Patrick Von Dohlen (behind right) is one of the five plaintiffs..
Jonathan Mitchell (left) argues to the Supreme Court of Texas. Patrick Von Dohlen (behind right) is one of the five plaintiffs..

“Anything the city did to put a different vendor in that spot that would have gone to Chick-fil-A is an action to exclude Chick-fil-A from a property — all of that falls under adverse action,” he explained.

Mitchell argued anything as mundane as an email could be considered as an adverse action and qualify as an “allegation” of the new law, which would waive the city’s “governmental immunity.”

The issue for the city’s lawyer, James Daniel McNeel “Neel” Lane, was that plaintiffs never alleged a specific violation; they only now argue that it would be impossible for the city to not have taken an adverse action.

“There has to be an allegation, factual allegation of a violation of the act. There is not here,” he said.

Some justices questioned how there could be an allegation of a violation if discovery had not occurred. The case has been dismissed by lower courts over governmental/sovereign immunity as well as a finding that those suing had no standing, so discovery — where documents are exchanged — has not occurred.

There was also a question over whether any specific injury was suffered by the five suing parties. Is depriving someone of a spicy Chick-fil-A sandwich enough? It wasn’t clear it was necessary, as Mitchell pointed out.

“There is almost always a caveat (in the need to show injury) that says, 'Except when standing is confirmed by statute,' ” which the so-called “Save Chick-fil-A” law does.

Lane called the interpretation where legislatures can pass laws “evading the constitutional requirement of showing injury” an “immense departure.”

The case has implications for state’s newly enacted ban on abortions, SB-8, which effectively deputizes citizens to sue people who assist women with getting an abortion.

Another area of concern for justices seemed to be what remedy the plaintiffs were seeking. Mitchell conceded that the court couldn’t order the city to destroy the contract with vendors. And Lane pointed out that the city had already gone back to Chick-fil-A since this lawsuit was filed and offered them the spot. The company declined.

No action was taken Thursday.

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Paul Flahive can be reached at Paul@tpr.org