Freedom of Speech

San Antonio Likely Violating Chick-Fil-A’s First Amendment Rights

Its exclusion of Chick-Fil-A from the airport appears to be based on the viewpoint expressed by Chick-Fil-A and various organizations to which it donates.

|The Volokh Conspiracy |

NBC News (Janelle Griffith) reports:

The San Antonio City Council voted recently to block Chick-fil-A from opening a restaurant at San Antonio International Airport, citing what it called the company's "legacy of anti-LGBT behavior."

The council voted 6-4 Thursday to approve a concession agreement for the airport that includes chains such as Smoke Shack BBQ and Boss Wood Fired Bagels and Coffee, provided it excluded a Chick-fil-A concept.

The vote came a day after Think Progress reported that newly released tax documents show the fast-food chain donated $1.8 million in 2017 to groups that discriminate against the LGBTQ community.

San Antonio Councilman Roberto Treviño said the council's action affirms the city's efforts to "become a champion of equality and inclusion."

When one looks at the Think Progress report, though, it's clear that the bulk of the objections have to do with the viewpoints of the groups to which Chick-fil-A donates. ("The Fellowship of Christian Athletes is a religious organization that seeks to spread an anti-LGBTQ message to college athletes." "Paul Anderson Youth Home … teaches boys that homosexuality is wrong and that same-sex marriage is 'rage against Jesus Christ and His values.'" "The Salvation Army has a long record of opposing legal protections for LGBTQ Americans.") Some have to do with Chick-fil-A's own viewpoint. ("Back in 2012, Chick-fil-A's CEO Dan Cathy opined that America is 'inviting God's judgment on our nation when we shake our fist at him and say we know better than you as to what constitutes a marriage.'" "Chick-fil-A's CEO Dan Cathy opined that America is 'inviting God's judgment on our nation when we shake our fist at him and say we know better than you as to what constitutes a marriage.' When pressed about the company's anti-gay positions, he responded 'Well, guilty as charged.")

A few objections have to do with employment discrimination by the groups and by Chick-Fil-A (though there's no indication that it's illegal employment discrimination): "The Fellowship of Christian Athletes is a religious organization that … requires a strict 'sexual purity' policy for its employees that bars any 'homosexual acts.'" "Salvation Army has a long record of opposing legal protections for LGBTQ Americans and at the time of the donations had a written policy of merely complying with local 'relevant employment laws.' The organization's website has since changed to indicate a national policy of non-discrimination based on sexual orientation and gender identity." "Chick-fil-A is one of a dwindling number of companies that still refuses to include explicit protection against discrimination on the basis of sexual orientation and gender identity in its employment non-discrimination policy." The government could demand that all their contractors not discriminate based on sexual orientation (at least setting aside constitutionally protected discrimination, just as in groups' choice of their clergy or, sometimes, their speakers), just as I think it can demand that they not discriminate against Israeli institutions or businesses.

But there's no indication that this is part of an evenhanded policy under which San Antonio doesn't deal with companies that lawfully discriminate based on sexual orientation or gender identity, or give money to groups that engage in such discrimination. Many people, for instance, donate money to churches, synagogues, mosques, or other religious organizatins of all denominations, and those institutions often don't have their own antidiscrimination policies (and, in many of the states in which they operate, aren't barred by state law from discriminating based on sexual orientation). Nothing suggests that San Antonio would refuse to contract with all these people. Rather, this seems an ad hoc decision that is likely motivated by Chick-fil-A's and its recipients' prominent speech (the cause of many past boycotts of Chick-fil-A).

If that's so—if the real reason for San Antonio's action is (even in part) Chick-fil-A's speech, and the speech of the charities to which Chick-fil-A donates—then this violates the First Amendment. The government generally may not discriminate based on a contractor's speech, or its expressive association, see Board of County Commissioners v. Umbehr (1996); O'Hare Truck Serv. v. City of Northlake (1996). The same would be true of discrimination against prospective contractors; the Court has made clear that discrimination against prospective employees is treated the same as discrimination against current employees, and Umbehr and Northlake were themselves based on the government employee speech cases.

The government may generally insist that, when it hires people to communicate a government message, those people use that government money only for the government-selected speech (see Rust v. Sullivan (1991)). But that power of the government to control its own speech is far removed from the government's attempt in this case to retaliate against businesses for their owners' speech.

Finally, this would of course apply to governmental refusals to deal with Nike because of its speech or expressive association (see this post), perhaps on the theory that Nike's speech is offensive to various patriotic Americans or families of police officers. Likewise, the government couldn't constitutionally refuse to deal with businesses that have owners who have publicly mocked religion, or that donate to anti-religious organizations—or that think Israel should not exist, or praise Hamas—even though many citizens may be offended by such businesses.

Members of the public can of course refuse to shop at Chick-Fil-A or buy from Nike or from the atheistic or anti-Israel or pro-Hamas business; no law forbids them from doing so. But the First Amendment does forbid the government from engaging in this sort of discrimination based on contractors' First Amendment activity.

UPDATE: See also this post by Hans Bader (Liberty Unyielding).

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

149 responses to “San Antonio Likely Violating Chick-Fil-A’s First Amendment Rights

  1. The Salvation Army is bad now.

    Leftists are moronic.

    1. I mean, they’re very anti-gay. They’ve lobbied other countries to ban homosexuality. And tend to be a bit hinky with their tax-free status and evangelism.

      You may disagree, but it’s well in keeping with the left’s general positions to oppose an organization that does that; hardly moronic.

      And that’s not counting what they got up to in Australia.

      1. The left is free to oppose all organizations for all reasons, and in fact they do.

        What they are not free to do is to use the coercive power of the government to shut down people they don’t agree with.

        1. Umm, I agree. What does that have to do with my comment about it not being dumb for liberals to not like the Aalvation Army?

        2. Google is now paying $17000 to $22000 per month for working online from home. I have joined this job 2 months ago and i have earned $20544 in my first month from this job. I can say my life is changed-completely for the better! Check it out whaat i do…..

          click here ======?? http://www.finestylereview.com

        3. The left and the govt agencies they control are perfectly fine to discriminate due to anyone taking a political position they disagree with.

          1. To which I would add that so-called “viewpoint discrimination” from the conservative wing of our nation must not be regarded in the same way. It should be noted that the action taken here was purportedly based on Chick-Fil-A’s “anti-LGBT behavior,” not speech. In this instance we prefer, along with Eugene, to see through such rubbish, and to conclude that the action was actually taken not on the basis of “behavior,” but on the basis of the company’s perfectly ordinary expression of a mere point of view.

            Fortunately, in other contexts the courts have made it clear that the result is the opposite. Thus, in our nation’s leading criminal “satire” case, the Second Circuit has explained that “parody” that is not “puerile” enough, and that sets out to “damage a reputation” rather than to convey an appropriate “idea,” will actually be regarded as a form of behavior?not “speech”?and thus will not benefit from the protection of the so-called “First Amendment.”

            This, of course, is also one of the basic reasons why?as Eugene has argued on various occasions?it is perfectly okay to criminalize libel, regardless of the foolish objections we keep hearing from “international human rights” organizations, whose declarations on this topic are best ignored, coming as they do from the left.

      2. Its The Salvation Army dude. Thrift stores and homeless shelters. Emergency help.

        Done by low paid committed workers.

        1. Willul obtuseness is no way to go through life, Bob.

          1. Opposition to The Salvation Army is the obtuse thing.

            Think Progress has not done one useful thing in its existence and LGBBQ activists are spoiled middle class morons.

            1. You’re working way too hard hard not to look into the Salvation Army. Being as you are the smart man I know you to be, I find your persistant breezy dismissal suspect.

              Think Progress has not done one useful thing in its existence and LGBBQ activists are spoiled middle class morons.
              You have contempt for people who don’t agree with you. Shocking.

              1. You’re working way too hard hard not to look into the Salvation Army.

                And?

                1. Saw that in my Googling. I leave it to the activists whether that flies with them, but either way liberal skepticism is not moronic.

            2. That about sums up life in 2019

        2. As long as you are straight, white, and belong to one of the approved Christian sects – Salvation Army is a great thing.

          But even if you don’t have a problem with Salvation Army’s long history of bigotry – how about its long history of not being transparent with its finances? Since it’s not required to file IRS form 990 we really don’t know how they handle their donations except what they volunteer on their site. That should be enough to never give them a dime by itself.

          1. The “Nonprofit Explorer” run by ProPublica has a Salvation Army 990 page and “117 organization results for salvation army”

      3. It is beyond moronic. It’s approaching AOC levels of economic stupidity. Have you ever been to an airport with a Chick-Fil-A? Ever been to anyplace containing a Chick-Fil-A? Notice the lines? The smart move would be to add 2 Chick-Fil-As.

        1. That’s captive business taken from the other restaurants!

        2. …is this comment in the right place?

        3. By that standard, a Planned Parenthood clinic would be part of every government-associated retail facility.

          Any chance conservatives would engage in viewpoint-controlled discrimination against Planned Parenthood in a government-related not-for-profit facility in a state controlled by right-wingers? A Catholic chaplain would be fine, of course, but anything related to Planned Parenthood would be blackballed.

          Without a peep from the Volokh Conspiracy, most likely.

          Carry on, clingers.

          1. Abortion isn’t speech.

            1. Nope, just murder.

            2. Neither is being a superstitious, gay-bashing bigot.

              1. I hope for your sake that bigotry is a protected form of free expression.

                1. Of course it is. And as to your earlier point, selling chicken sandwiches and shakes (frickin’ delicious shakes, I might add) isn’t speech either. I can never really tell if your comments are tongue in cheek. That’s why I usually enjoy them.

                  1. It all turns on *why* the city govt refused to let Chik Fil A have the concession.

                    Is it because the govt worried they might discriminate against gay customers, selling chicken only to people who have their Straight Cards? Then as far as the Constitution is concerned, they can ban away.

                    But the post suggests that the govt was influenced by the company’s donation to organizations which criticize the gay-rights cause.

                    But criticizing the gay-rights cause, and donating to those who so criticize it, is protected under the First Amendment.

                    So if *that’s* the motive for their action, it would make their action unconstitutional.

                    1. I agree completely. And as of today, abortion is also protected under the Fourteenth Amendment. So banning Planned Parenthood from a “government-related not-for-profit” facility would also be unconstitutional. I think that was the Rev’s point.

                    2. Is it because the govt worried they might discriminate against gay customers, selling chicken only to people who have their Straight Cards? Then as far as the Constitution is concerned, they can ban away.

                      Are you sure? The law is (I assume) you can’t discriminate, not that, once there, you might try, so we can punch you in the face ahead of time for your pre-crime.

        4. Have you ever been to an airport with a Chick-Fil-A?

          Yeah. The Charlotte airport has one. The line is massive, as you’d probably expect, and the food is fucking delicious.

          Regardless, Trevino and the council fucked up by not simply saying, “They’re closed on Sundays and that won’t work for us.”

          1. That is the part that always gets me when I see a CfA in a place like an airport. I don’t have a problem with CfA taking political positions some of which I don’t support. I do like CfA’s food. I also don’t have a problem with businesses deciding when to open and close.

            But I really do think the authorities granting concessions for airports and the like should take into account the fact CfA is going to be closed on Sundays so the concession might as well not be there on what can be pretty busy days.

        5. I live in Wisconsin and have never seen a Chick-Fil-A in the state (a quick search shows 4 in the state, in the Milwaukee, SE corridor). I believe it is more of a southern chain?

          1. Correct. And I’d take Culver’s over CfA any time.

      4. If San Antonio was basing its decision on the Thing Progress report, here’s the information it was relying on:

        “The Salvation Army has a long record of opposing legal protections for LGBTQ Americans and at the time of the donations had a written policy of merely complying with local “relevant employment laws.” The organization’s website has since changed to indicate a national policy of non-discrimination based on sexual orientation and gender identity.”

        I don’t see foreign lobbying mentioned, do you have a link you can share?

        1. I found this in a 2013 HuffPo article (which I presume would not exactly be stating the worst-case argument against the Army):

          “1986 ? The Salvation Army of New Zealand collected signatures against the Homosexual Law Reform Act, which repealed the law criminalizing sex between adult men. The Salvation Army later apologized for campaigning against the Act.”

          https://bit.ly/2FvW4TR

          The article gives no other examples of lobbying other countries to ban homosexuality, and that was from 1986 and they changed their mind. To get some idea of how long ago 1986 was, look at this site:

          http://wecardnow.com/alcohol-2…..ndar?c=a21

          1. And from this more recent anti-Salvation Army article:

            “In New Zealand, the Church led efforts to keep sexual relations between adult men a criminal offense.”

            That’s presumably a reference to the disavowed campaign from 1986, and again it’s the only example cited of an attempt to “ban homosexuality.”

            https://bit.ly/2QVcUhr

          2. That is not a surprise, the Salvation Army is a Christian organization, and the Bible condemns homosexuality. You either believe in the Bible and stand behind your convictions or you don’t. Many churches are struggling with this issue right now.

            I don’t believe the HuffPo is a Christian organization.

            1. the Bible condemns homosexuality. You either believe in the Bible and stand behind your convictions or you don’t.

              For a liberty lover, you sure a prescriptive about your bible study. And seem to condone people using the bible to advocate against freedom.

              [As to the Bible and homosexuality, you are taking dogma as Biblical. Jesus says nothing about it; Sodom’s transgression was more about the law of hospitality. And Paul throwing it in a large list of bad things he was angry about is a pretty thin reed to build an edifice of persecution on.]

              1. “Jesus says nothing about it”

                That doesn’t count for your position, it counts against it.

                When Jesus wanted to challenge the views of the religious establishment, he did so. If he didn’t challenge their views on sodomy, that doesn’t mean he disagreed, it is more likely that he agreed.

                The closest he got was the woman taken in adultery – let he who is without sin cast the first stone, then to the woman go and sin no more.

                So maybe he wasn’t a fan of persecution, but he still used the term sin to describe what the woman was doing.

                The likelihood is that if he had something to say about sodomy , it would be to challenge the conventional wisdom, not waste time affirming it when it doesn’t seem to have been an issue.

                1. it is more likely that he agreed.

                  When Jesus is speaking through inferrences drawn by people, that’s not a Biblical command.

                  1. There *is* this:

                    “…Have ye not read, that he which made them at the beginning made them male and female, And said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.” – Matthew 19:4-6 (KJV)

                    By SJW standards this is *very* homophobic, since it has a hetero-only definition of marriage.

                    From the SJW standpoint, it simply isn’t enough to be merciful to sinners, because that still retains the concept of sin, which of course should be reserved only for the use of plastic straws and similar offenses, certainly not for nonheteronormative activity.

                    So you’re setting a high bar for Jesus to meet – not only does he have to be merciful to sinners, he has to be against the idea that gay sex is in any way different in kind from hetero sex.

                    But such an advanced attitude cannot be found in Jesus’ highly outdated and biased definition of marriage.

              2. Sarcasto. Homosexuality is listed as banned in the same chapter as incest, bestiality, and child sacrifice. Yes, the New Testament widely eliminated large swaths of Mosaic law with several key revelations. However, many parts of the law were not eliminated. The only way to claim that the Bible does not ban homosexuality is to willfully pluck it out without any legal justification or just wipe out the entirety of Leviticus.

                It’s one of the reasons that I left the church.

                1. That’s a lot of Biblical interpretation, not literalism.

                  That you elided that the chapter of Leviticus also talks about shellfish and mixing fabrics shows you shading what’s going on.

                  I’m not saying that the Bible insists you embrace homosexuals (though one could argue from Jesus’ generally tolerant point of view…)
                  But to insist that the Bible unequivically condemns homosexuality is prideful placement of your own thoughts in front of the text.

                  1. Of course the Bible insists on embracing gays…if you go by the analogy of the prostitutes and tax collectors Jesus was willing to meet with preach to, and even dine with.

                    But that’s not the same as saying the Bible preaches prostitute pride, or tax-collector pride, or gay pride. References to pride are usually negative.

              3. No I do not, Yet Christians are as entitled to their opinion as you are to yours. If you truly believe, then you believe. I have no problem with people having the courage of their convictions. Homosexuals have the same courage of their convictions. According to your way of thinking homosexuals should hate themselves, as not to offend others. Now substitute Christians for homosexuals. In somethings in life you will never get agreement. And yes Jesus did not condemn homosexuals. St. Paul did. Now you want Christians to pick and chose what books and verses to believe and not believe. Christians tend to believe the Bible as a whole. Now I suppose you will want to argue that man decided what books are in the Bible and what ones are not as there are many. You can do that if you want, but Christians will not. I have read your posts, your complaints will go on forever as you pretend to not understand what others say. So goodbye.

            2. SA is not just a Christian organization; it’s a Protestant denomination with particular teachings. SA nearly uniquely among Christians does not practice baptism or the Eucharist so this is a significant doctrinal difference that you’d think would cause some Christians not to support them.

            3. You either believe in the Bible and stand behind your convictions or you don’t.

              Let’s not forget that not all Christians are bigoted, hateful, stale-thinking rubes.

              Mostly, it’s just the Republican Christians.

      5. No need to prove Bob’s point Sarcastro.

        1. You think it’s moronic for liberals to oppose the Savation Army due to their past very anti-gay stance?

          Or are you just eager to call liberals morons and don’t really care much what it takes to do it?

          1. Maybe liberals shouldn’t make it so easy.

            1. Making it easy isn’t the real problem, promoting it to young people is though.

    2. Yep.

      Take this at face value: if I’d been working for them when I got married, they’d have fired me the next day.

      So if I’m not good enough to work for them, then they’re not good enough to take my money, old clothes, or time.

      Is that really such a hard position to understand?

  2. Discrimination is just fine if your’e a morally superior leftist.(that whole free exercise of religion, is like decades old,geesh)

    1. What do bigoted, superstitious right-wingers think about discrimination involving Planned Parenthood?

      Any group that embraces the Catholic Church (systematic criminal abuse of children) and Chick-fil-A (blatant bigotry) while demonizing and discriminating against Planned Parenthood is not going to like the American future . . . and probably doesn’t much like the most recent half-century of American progress.

      1. What do bigoted, superstitious right-wingers think about discrimination involving Planned Parenthood?

        That it’s unfortunate that it wasn’t around back in the day so your mother could get a doctor to rip your skull from your body?

        1. Losing the culture war — so that my preferences prevail, and you must comply with them every day of your deplorable life — seems to have made you quite cranky, Red Rocks White Privilege.

          But keep whining . . . I like the sound of it.

          1. You seem to be projecting your salt at being an 85 IQ hayseed on to me, Arthur L. Hicklib.

            Perhaps less copypasta and more original thinking will help de-gunk your resin-coated skull.

  3. The key here is to essentialize this in order to condemn any liberal anywhere.

    I look forwards to the spirinling down towards advocating for Pinochet, as campus speech threads have tended to become these days.

    1. In fairness, there are some people that deserve helicopter rides. That said, if liberals win in 2020, they will take the precedent and send people off to the gulag.

      1. Yup. Basically any secular Jewish Democrat.

      2. “That said, if liberals win in 2020, they will take the precedent and send people off to the gulag.”

        Listen, do you have any idea how hard it is to design public transportation with the current, sprawled residential patters?

        If we’re going to ban cars in 10 years, we’re going to have to optimize individual residential choices.

        And with everybody living near public transportation, it will be much easier to provide free education about important issues like social justice and global warming.

        1. And get people to the cattle cars efficiently.

    2. “essentialize”, “spirinling”… English please 🙂

      1. Maybe worry more about the responses advocating for political executions.

        1. The dark shadow of fascism seems to be descending on the comments of your compatriots on this blog, Kevin! Better post something about Sharpton, quick!

        2. Seriously, it is really hard to take anybody seriously who uses words like “essentialize”. I bet I could make a list of words like that, feed it into a random sentence generator, and get it published in a woman’s studies journal.

          1. Eh, came up with it more or less on my own based on a need to engage with what people do on threads like this one.

            Unless you can think of a more concise way to put forth what essentialize means, I’ll take your criticism under advisement.

            1. “Unless you can think of a more concise way to put forth what essentialize means, I’ll take your criticism under advisement.”

              Wait, are you saying I should fuck off unless I got a shorter way to say it?

    3. Dealing with traitors violently and swiftly is more effective than the alternative.

      1. There’s a comment Prof. Volokh approves.

  4. Now if they’d just said they didn’t want Chick-fil-a because they wouldn’t be open on Sunday, and that would inconvenience travelers…but, no, they had to virtue signal.

    1. Yeah. The goal wasn’t to block CFA. The goal was to send a message.

      1. I wouldn’t be surprised if being overturned by a court is part of the plan to drum up support in the face of right-wing judicial activism

        1. I see the mind-readers have arrived.

  5. Seems pretty ‘cut & dried’ to me. San Antonio’s City Council went a step or two too far. They will need a better reason to exclude Chik-Fil-A – the city cannot discriminate based on a personal viewpoint of a corporate officer.

    Honestly, the only thing that should matter here is whether Chik-Fil-A discriminates against any customers. They don’t. Like any good business, they only care if your money is green. The rest is just a waste of time.

    In Manhattan, the line for Chik-Fil-A is truly something to behold. If the liberal bastion of NYC can allow for a Chik-Fil-A and not be ‘laid waste’, I’m thinking San Antonio can (and should) do the same.

    1. You’re saying it isn’t ok to ban a business based on the city not liking what a member of that business might think about a particular subject?

      Anarchy!

  6. Commenter Ed Unneland asked on Facebook, “How does one distinguish the Bob Jones University tax exemption case?,” and I thought I’d answer it here as well there:

    Bob Jones lost its tax exemption because of its discriminatory action (having a ban on interracial dating by students), not because of its advocacy. If the IRS denied an exemption to a university because it taught some viewpoint (whether racist or otherwise), that would indeed be unconstitutional. See this post, and Z Street v. Koskinen (D.C. Cir. 2015), which it cites.

    1. How many gay store operators does Chick-fil-A accept? How many agnostics? How many Muslims? How many atheists? How many Jews?

      I doubt it would take more than a long afternoon to demonstrate that Chick-fil-A engages in old-timey discrimination.

      1. “I doubt it would take more than a long afternoon to demonstrate that Chick-fil-A engages in old-timey discrimination.”

        True dat. I’m sure that the only reason that they haven’t been sued into oblivion is that no lawyer has thought of this before.

        1. Well remember, Arty is pretty slow.

      2. Well its been a long afternoon, so I assume you have the results of this research ready. Lets see it

    2. “Bob Jones lost its tax exemption because of its discriminatory action (having a ban on interracial dating by students), not because of its advocacy.”

      I’m surprised its ability to choose its students isn’t protected by expressive association.

  7. The funny thing is, Chick-Fil-A would probably not even be the operator of the airport operation. Most probably someone like HMSHost would operate it, since usually they tend to operate airport concessions. They license or joint venture with the franchisor.

    1. Chick-Fil-A’s operating model is that they own/lease the location and select a hands on operator. And they must adhere to all Chick-Fil-A’s policies and procedures including closing on Sundays (which does include their airport locations).

      1. Also includes stadiums. Awkward for NFL games.

        1. If they ever got naming rights for a stadium, would the whole stadium close on Sundays?

          1. Hard to say if CfA would close the stadium. CfA’s stated rationale for Sunday closure is to allow employees to worship and spend time with family and friends. I think to most people who go to church and generally support restrictions on Sunday business, football on Sunday afternoons is fine because it does not interfere with Sunday morning worship and is indeed an opportunity to spend time with family and friends. On the other hand, so is eating out: going to a restaurant after church is a Sunday staple. But CfA doesn’t help you do that. So maybe they wouldn’t help you go to a football game, either.

        2. There is a CfA at the stadium where the Atlanta Falcons play. It is closed on Sundays. Another business operates in the space during Sunday games.

      2. I don’t think their standard operating model applies to either airport or college locations with regards to owning/leasing the location. It does apply to the Sunday closure. i.e. Dallas Love field location is closed on Sundays. HMSHost operates most (all?) of the food and C-store/gift shop locations at Dallas Love.

        I can’t remember who the operator at the U of MN campus location is for sure, but Canteen comes to mind.

  8. Homosexuals are the most hateful, bigoted, mentally ill people around. they can’t wrap their head around the fact that wanting to stick your schlong into another man’s tuchis is sick, and that most people do not think it’s normal or healthy.

    1. Its 2019 – shouldn’t you be outside trying to take away the rights of Transgender people? Or whatever minority group you are told to irrationally hate these days

      1. No one hates transgenders. We just won’t participate in their delusions.

        1. Exactly. I find the whole thing distasteful. Just like men fucking each other. I also don’t care what other people do as long as it doesn’t impact me. That’s what tolerance is all about.

    2. Fair enough. That’s still not reason enough to make it illegal.

    3. Homosexuals are the most hateful, bigoted, mentally ill people around. they can’t wrap their head around the fact that wanting to stick your schlong into another man’s tuchis is sick, and that most people do not think it’s normal or healthy.

      It is periodically appropriate to thank the Volokh Conspiracy for bringing unvarnished, genuine conservative thinking and positions to a broader audience. Americans — especially young people developing lifelong voting patterns — deserve to know how Republicans and conservatives view the world and certain people.

      Thank you, Conspirators, for illuminating the conservative side of the aisle for others to observe.

      1. As compared to liberal “thinking” that it’s normal to penetrate another man’s tuchis as long as you’re a “consenting adult in the privacy of your own home.”

    4. “…wanting to stick your schlong into another man’s tuchis is sick…”

      Only if you do it right.

  9. In other news, the Democrats violate Equal Protection (for real) all the time:

    Evil

  10. The problem is that there are no real consequences for unconstitutional action. The six (6) councillors who voted for this likely knew (maybe from their counsel) that this law was not going to fly. So now Chik-fil-A has to bring a suit against this. Let’s assume it does and prevails. So what does it get — maybe attorney’s fees paid for by the taxpayers. If the councillors had to pay out of pocket, then perhaps they would sing a different tune.

    1. Which is exactly what Florida did with gun laws. Imposed a fine on individual people to stop this type of thing.

  11. “The Fellowship of Christian Athletes is a religious organization that seeks to spread an anti-LGBTQ message to college athletes”

    Does it specifically spread “an anti-LGBTQ message”?

    Or it is merely a Christian organization and therefore automatically does (because it’s not United Methodist heresy)?

    Weakest possible sauce.

    (* Disclosure, just to keep things clear: I’m an atheist who likes gay people just fine.

    I just think the hyperventilating over this is nonsense, and frankly it makes me want to consider eating at a Chick-fil-A just to spite the people doing it.

    Also IIRC their chicken is genuinely delicious; there hasn’t been one convenient to me in over a decade.)

    1. I wish some of the “anti-LGBT” groups would actually become anti-LGBT the way they are in Muslim countries. Start burning them alive and throwing them off roofs and then they can see how good they have it here, even if they can’t adopt “children” from a Catholic charity.

    2. It has a sexual purity statement, so I do think they give homosexuality some special attention.

      1. A requirement of its own members is pretty far from spreading that as a message.

        1. Maybe so, but I’m not going to dismiss their evangelism including some anti-gay stuff out of hand as
          the ‘weakest possible sauce.’

          1. “evangelism ”

            Yes, liberals hate Christians.

            1. Sure, Bob, I was talking about the protestant sects not the more general act that would make sense in context.

              *eyeroll*

              1. S: Uses a religious term of art when talking about a religious organization.

                B: “Yes, liberals hate Christians.”

                S. LOL, I meant a generic zealous advocacy of a cause

                B: *eyeroll*

                1. ‘If you’re not anti-Christian, why do I keep insisting you are?!

                  a religious term of art
                  LOL

      2. The sexual purity statement is the same Christian principle that has been held for millennia by Christians. Simply stated, based on the Bible: sex is for married couples; marriage is between one man and one woman.

    3. So are their milkshakes…..

    4. When did conservatives decide that bigotry is improved by being cloaked in superstition?

      1. Yep that’s you Arty. You are a Progressive Orthodox. This is obvious based on the dogmatic way you talk. You also immediately condemn anyone who strays from your groupthink, telling us how our eternal damnation by the Progressive Caliphate is nigh.

        You are more of a zealout and a crusader than the most deavout Christian I’ve seen in my entire life. You are on the order of the Islamic fundamentalists that suicide bomb and burn infidels alive. As are so many of your fellow travelers.

        1. Quit whining, clinger.

  12. Scalia was right in ’96.
    This is no business of the Supreme Court.
    The government as contracting partner is not COERCING anyone, and should have the same rights of free association and conscience as any other contracting entity.
    If the government of San Antonio wants to distance itself from anti-gay, or pro-Hamas, or pro-Communist, or pro-Nazi folks, then it should be permitted to do so to the extent that it can refuse to do business with such people.

    When I was an undergrad, the lefty cause du jour was “don’t do business with people who do business with the apartheid government in So Africa”. There was nothing wrong with a public university doing so then, and nothing has changed.

    1. San Antonio City Council voted recently to block Chick-fil-A from opening a restaurant at San Antonio International Airport

      That’s beyond just doing business.

      1. Presumably, the San Antonio City Council WOULD be allowed to block a business boycotting Israel from opening a restaurant in San Antonio International Airport.

  13. This is asanine, with a capital Ass.

    Positive thoughts instead of the vitriol it sets roiling in my head, though:

    1) Chick-fil-A food is delicious (the chicken nuggets, the fries, the lemonade …), but it’s slightly more expensive than much fast food. No plans to fly through San Antonio, but if I did, maybe I’d be grateful to be saved the chance to spend slightly more money as I saw fit.

    2) Not that I’m a world-class jet-setter, but I’ve flown on Sunday plenty of times. I’d hate to have my hopes dashed at the altar of chicken.

    3) Airport food options should be in something like a food truck / pop-up / farmer’s market format. Let ten thousand flowers bloom! There should be more convenience store options, fancy ramen vending machines with high-end noodle bowls (Hey, in SFO at least, there’s a *vest* vending machine!), hippie brown-rice+curry bowl places, shops specializing in foods easy to neatly eat on the run, kiosks with actual Philadelphia-style pretzels and mustard (I dream, I dream) …

    Also: How about all the restaurants associated with the Nazi-linked (“linked” is such a convenient word) restaurants of the family Reimann? I think contrition is the key difference. Donating a few million in charity might not mollify the anti-Chick-fil-A-ers, though.

    1. The only way to mollify the anti-Chick-fil-A-ers would be to perform fellation on a black HIV+ transgender “woman” pre-reassignment

  14. Could a city council refuse a permit to a restaurant on the basis that the city council believed the owners were Nazi sympathizers?

    If the answer is “yes”, then you concede that permits may be refused based on associated political action.

    That said, the general “libertarian” response is “permits are invalid to start with”, so seeing as y’all likely object to the laws and policies that give the city council a say in the first place, I’m not sure why anyone should worry over y’all’s objections. I mean, you never stopped, so why should they care the target has changed a little?

    1. The answer is No.

      As to your second point, it is inaccurate and irrelevant. Permits are a reality of life, whether libertarians think they are good ideas or not. That still does not mean they can be denied on unconstitutional grounds.

      1. exactly. I don’t think we need any kind of government, but the ones we have are still obliged to follow the rules establishing them.

    2. “Could a city council refuse a permit to a restaurant on the basis that the city council believed the owners were Nazi sympathizers?”

      No – how, consistently with the First Amendment, could the government discriminate against one particular form of socialism?

      1. And yet all of you believe it’s perfectly okay for state governments to discriminate against companies that are boycotting Israel.

        1. Not really, I think they should get the best contractor for the job.

          But if they want to add a virtue-signalling tax to their public contracting by choosing only companies willing to sell to Israelis…I don’t see a First Amendment violation, but it’s possible you could enlighten me on this point.

          If the First Amendment includes a right to choose one’s customers, would that include a First Amendment right to refuse service to black customers?

          1. Because unless the state is requiring only contractors who are actively doing business with Israel, they are refusing to contract with certain companies solely because they are advocating a boycott of Israel. And that is viewpoint discrimination, just as surely as San Antonio is discriminating against Chick-Fil-A because of its advocacy.

            I’m not sure how you are inferring that I am arguing for a first amendment right to choose one’s customers. Could you explain that? I certainly do not believe such a right exists.

            1. I may not have all the details about the movement to boycott Israel – but I understand it includes a refusal to have Israelis as customers. Israelis in Israel, I mean. Or Israeli government agencies, or any person or entity associated with the Israeli state.

              So if I’m correct, then this boycott involves a business selecting its customers – specifically, deciding that Israel *won’t* be one of those customers.

              There seems to be a bit of a difference between consumer boycotts of businesses and refusals of service *by* business *of* consumers. The former, for whatever reason, is generally legal, but the latter is subject to regulation.

              Or to put it another way, white customers can boycott black businesses, and consumers can boycott the business of an entire country, but the government can pass laws against businesses boycotting black customers, or boycotting customers from a particular country.

              So to advocate a *customer* boycott would be legal, since it’s simply advocating legal activity. Maybe even advocating an illegal business boycott of customers might be legal, what with the broad protections of speech even if it advocates illegal things.

              But a business boycott, I would have thought, is subject to regulation.

              Bear in mind that I’m not really the expert you should consult if you want a more definitive answer – but so it seems to me.

              1. Oh okay, I see what you are saying. I’m not really sure about that either, but I don’t really understand the legal criteria for treating corporations as a person in one situation, but not another. But I understand your choosing one’s customers question now.

  15. It’s just religious bigotry and discrimination against entities that take a view of religion based upon the text of the scriptures. “Here’s a quarter, call someone who cares.” For many, if religion is anything other than a feel-good social justice service outreach association it SHOULD be stamped out and is not worthy of any constitutional protections. If religion is actually believing in the Bible, Koran, etc. and what is written is associated with a diety and belief in God, it has negligible protection to the freedom from religion crowd. The first amendment has a free exercise clause as well as a no establishment clause.

  16. I’m a little surprised they were so blatant about it. They could have just done what the local mall did, and said “All stores on premise must be open 7 days a week”, at which point, Chik-Fil-A selects themselves out by being closed on Sunday.

    1. They couldn’t strut around if they did that.

      CFA is a class enemy so must be opposed

    2. Which would actually be a reasonable position, given the limited number of restaurants available in these places. But of course, that means they’d have to enforce it equally.

      1. . . . which wouldn’t be a problem, though. Who else closes an airport or stadium location for a whole day every week? I think the more likely objection would be that the 7-day policy while facially neutral actually targets CfA.

        1. I’ve seen little non-chain restaurants close on certain days in airports, but you’re right, it’s rare.

  17. “Members of the public can of course refuse to shop at Chick-Fil-A or buy from Nike or from the atheistic or anti-Israel or pro-Hamas business; no law forbids them from doing so. But the First Amendment does forbid the government from engaging in this sort of discrimination based on contractors’ First Amendment activity.”

    So I take it you also believe state governments refusing to grant state contracts to companies boycotting Israel is also a first amendment violation? Company A is boycotting Israel. Company B is not, but just happens to not have any business with Israel. In terms of behavior or actions, there is no difference between the companies, neither is doing business with Israel. The only difference is company A’s belief that Israel is bad, and their espousal of a need to boycott. What does the First Amendment say about discriminating against company A?

  18. I’ve always thought that a boycott was exactly the WRONG choice.

    Instead, gay people should gather at Chick-fil-A stores, and proudly announce their intention to do so. In fact, they should make it practically guaranteed that, at any Chick-fil-A location, at any hour of the day, you’d be guaranteed to find at least one gay person in the store.

    1. And no one would care. Just make sure that they’re not taking advantage of the bathroom glory hole, as these people are wont to do.

      1. You figure the conservative yahoos congregating at Chick-Fil-A wouldn’t get the full-court clustermuck vapors if two men kissed in a Bigot Chicken dining room?

      2. ” Just make sure that they’re not taking advantage of the bathroom glory hole”

        I’m sure they’ll let you have your turn, if you ask nicely.

    2. If they come to buy stuff, then it’s unlikely they’ll be kicked out, so long as they don’t drive away other customers, which I don’t think they would unless they’re *trying* to drive people off.

    3. In fact, they should make it practically guaranteed that, at any Chick-fil-A location, at any hour of the day, you’d be guaranteed to find at least one gay person in the store.

      That would be pretty difficult, seeing as gay people are only about 2-3% of the population. Gay people also tend to have jobs, and thus more important things to do than troll a fast-food restaurant staff and make a spectacle of themselves for giggles.

      1. They tend to have jobs? Not from my experience.

  19. Legal scholars, would you please stop using weasel phrases? We know courts are unpredictable, but still, if you won’t take a clear stand on your analysis of the law, we the readers are going to take you much less seriously. If you think a law is unconstitutional, just say so, and we’ll eventually find out how right you were.

    Examples of weasel phrases:

    “likely” violating

    “appears” to be based

    this “seems” an ad hoc decision that is “likely” motivated

    “If” that’s so … then this violates the First Amendment.

    1. THere is nothing “likely” about it. Moreover, it would still be a violation of Chick Fila’s 1st Amendment Rights even if it were even handed. As much as it pains a good little social liberal like Volkh to admit, it is still legal to object to gay marriage or even gays in this country. And government cannot discriminate based upon the lawful exercise of first amendment rights no matter how even handed the policy is.

      Volkh is just virtue signaling here. It is a slam dunk case agains the city. But saying that runs the risk of implying that Volk might not be sufficiently gay affirming to be a member of polite society. And no one wants that.

      1. and it’s not Chik fil A even doing anything objectionable. They support charities that help the poor and downtrodden. those charities have political and religious views that the commies running the airport don’t like. Chik fil A serves everyone equally and doesn’t moralize in its restaurants.

  20. Been reading this blog for many years and never heard Professor Volokh as a “good little social liberal”, but to each his own and variety is the spice of life, and all that.
    You might want to spend a few seconds to spell his name correctly, it really adds to smoother reading.
    Also, Orrin Kerr still owes me a beer, for, something!
    Also, FRAUD!
    Check please.

    1. He is what he is. If he wasn’t, it wouldn’t be so hard pressed to avoid the obvious truth here.

  21. And the “obvious truth” here is what, exactly?

  22. So if say a Middle Eastern restaurant chain supported Muslim charities that helped struggling people and kids, I assume the San Antonio Airport Commission would give them the boot as well if those charities frowned up homosexuality or said men oppressing women was A-okay?

Please to post comments