The Unlawful Campaign against Chick-fil-A

National Review Online

Monday, April 08, 2019

In the past two weeks, two different airports have blocked Chick-fil-A from the premises. First, the city council of San Antonio banned the chain because, in the words of councilman Robert Trevino, “everyone should feel welcome when they walk through our airport.” Then, two weeks later, a New York Democratic assemblyman, Sean Ryan, announced that the Buffalo airport food vendor was prohibiting Chick-fil-A from operating in its food court. Ryan was explicit about the reason, declaring in a statement that “the views of Chick-fil-A do not represent our state or the Western New York community.”

The immediate justification for the bans was a ThinkProgress allegation that the Chick-fil-A foundation supported “groups with a record of anti-LGBTQ” discrimination.” ThinkProgress was resurrecting a 2012 controversy over Chick-fil-A contributions to an affiliated foundation that gave grants to conservative Christian groups, including groups that opposed same-sex marriage, and over comments by Chick-fil-A president Dan Cathy supporting the traditional, biblical definition of marriage. There was no allegation that Chick-fil-A discriminated against gay customers or gay employees.

In 2012, a wave of Democratic city officials, including the mayors of Boston and San Francisco, threatened to block Chick-fil-A from opening restaurants in their cities, and Chick-fil-A’s customers responded with an immense “buycott” as a show of support. By the end of 2012, the storm appeared to have passed.

Until now. While ThinkProgress has continued to call attention to Chick-fil-A donations for years, this year San Antonio and Buffalo decided to act. And once again Chick-fil-A faces explicit, official retaliation not for any incidents of discrimination in its stores, but rather for the constitutionally protected freedom of expression of its associated foundation. This is intolerable on two counts.

First and most importantly, it is plainly and clearly unconstitutional for government officials to punish private corporations for the political or religious views of their owners or affiliates. This basic principle of constitutional law was recently reaffirmed in a federal court in California, when an Obama-appointed district judge protected a “living history” farm from public reprisal against the conservative views of its owner. When the local school district canceled field trips to the farm in protest of the owner’s private political views, the court’s ruling was clear: “Defendants cannot terminate [the trips] for unconstitutional, retaliatory reasons.”

Simply put, there is a fundamental difference between enforcing a valid anti-discrimination or public-accommodations statute — such as a law prohibiting discrimination in the provision of services — and blocking a restaurant that complies with anti-discrimination law simply to punish the politics (and faith) of its owners.

Second, it’s worth pointing out the sheer extremism and intolerance of San Antonio’s and Buffalo’s actions. Chick-fil-A is being punished not for giving money to political or culture-war organizations, but rather for donations to the Salvation Army, the Fellowship of Christian Athletes, and a small donation to a youth home. The result is a declaration by government actors that even the most mainstream of traditional Christian organizations should be officially marginalized. Groups that are instrumental in the lives of the poor and in the lives of American youths are too toxic even for private donations, and donors should face economic punishment for having the audacity to support the charity of their choice.

Fortunately, a backlash is already building. Texas attorney general Ken Paxton has launched an investigation of the city council’s action, and Buffalo’s decision was condemned by the New York Civil Liberties Union, and the transportation authority is blaming the decision to block Chick-fil-A on an outside vendor.

The virus of public reprisal against private expression is spreading. For example, the Los Angeles City Council now requires contractors to disclose any ties with the National Rifle Association. In 2017 it passed an ordinance requiring contractors to disclose if they’d submitted bids to work on President Trump’s border wall.

It is the role of government to protect liberty, not promote ideological conformity by punishing dissent. San Antonio and Buffalo are on the leading edge of a dangerous trend, and if they don’t relent, then Chick-fil-A should sue. It’s time to make unlawful retaliation costly for America’s most intolerant cities.