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Is the lack of a Chick-fil-A restaurant at the San Antonio International Airport a concrete, particularized injury sufficient to grant would-be customers standing to sue? We do not know yet, but Texas courts may have to grapple with that question.
In 2019, the San Antonio City Council was tasked with approving an agreement allowing a concessionaire to contract with various vendors, including Chick-fil-A, who would operate at the San Antonio International Airport. Some council members voiced their opposition to having a Chick-fil-A at the airport, arguing that the company's history of funding anti-LGBTQ organizations made many people perceive the fast-food chain as a symbol of hate. Following debate, the City Council approved the contract with an amendment to ban Chick-fil-A from the airport.
In response, the Texas legislature passed Senate Bill 1978, also known as the "Save Chick-fil-A Law." The statute (§ 2400.002 in the Texas Government Code) bans government entities from taking "any adverse action against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization."
The law's definition of "adverse action" includes denying "any grant, contract, subcontract, cooperative agreement, loan, scholarship, license, registration, accreditation, employment, or other similar status from or to a person."
Would-be Chick-fil-A customers who frequented the airport filed a complaint against the City of San Antonio seeking declaratory and injunctive relief on the assertion that the city was violating § 2400.002. The district court denied the city's plea to the jurisdiction, which argued governmental immunity and lack of standing. The court of appeals reversed and dismissed the case without giving the plaintiffs an opportunity to replead. The state supreme court reversed the court of appeals' judgment and remanded to allow plaintiffs an opportunity to replead.
"Sovereign immunity" is a legal theory that prevents federal and state governments from being sued unless the legislature waives such immunity. In turn, "governmental immunity" refers to the same concept applied to state subdivisions, such as counties and cities.
§ 2400.002 explicitly waives governmental immunity when a person alleges a violation of the section of the statute prohibiting government entities from taking ¨any adverse action against any person based wholly or partly on the person's membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.¨ The Texas Supreme Court found that the plaintiffs did not meet this pleading standard.
The city's decision not to allow Chick-fil-A came before the Texas legislature passed the law. In fact, the law was a reaction to the city's decision. Even though the plaintiffs alleged that the city's violation of the statute was continuing in nature, they described no action other than implementing the amended concession agreement that violated the statute after it took effect.
The lack of allegations of post-law violations was not fatal, however, and the state supreme court granted the plaintiffs an opportunity to revise their pleadings.
Unfortunately, remanding the case for repleading made it unnecessary for the Texas Supreme Court to address the issue of whether the would-be Chick-fil-A customers had standing to file suit against San Antonio for its decision not to let the restaurant operate at the airport. Thus, we do not yet know whether "the denial of a preferred eating option at the airport" is a concrete, particularized injury. Only if the plaintiffs can plead that the city's alleged violation of the statute is continuing in nature may we get to this interesting question.
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