Injury Laws: No airport concessions for opponents of same-sex marriage?

The Denver City Council is reportedly holding up a new concession agreement for Denver International Airport (DIA) because it does not want to approve the operation of a Chick-fil-A. Specifically, some council members do not like the fact that Chick-fil-A executives were critical of same-sex marriage.

The Denver Postreports:

Chick-fil-A’s reputation as an opponent of same-sex marriage has imperiled the fast-food chain’s potential return to Denver International Airport, with several City Council members this week passionately questioning a proposed concession agreement.

Councilman Paul Lopez called opposition to the chain at DIA “really, truly a moral issue on the city.”

His position comes despite ardent assurances from the concessionaires — who have operated other DIA restaurants — that strict nondiscrimination policies will include protections based on sexual orientation and gender identity.

Robin Kniech, the council’s first openly gay member, said she was most worried about a local franchise generating “corporate profits used to fund and fuel discrimination.” She was first to raise Chick-fil-A leaders’ politics during a Tuesday committee hearing.

This is not the first time we’ve seen political leaders seek to impose a political litmus test on business owners. Eugene Volokh blogged about politicians in Chicago and Boston threatening to deny Chick-fil-A permits for the same stated reasons. The problem, as he explained here, is that such actions constitute unconstitutional viewpoint discrimination under the First Amendment.

[D]enying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.

The government may impose all sorts of conduct requirements on concessionaires, including non-discrimination rules, but it may not penalize a potential concessionaire because of the political expressions or beliefs of its owners or managers. Private individuals and private companies are free to take such concerns into account when deciding where to take their business. Governments may not.

Councilman Lopez may believe there is a “moral issue” here, but as a government official, he needs to pay a bit more attention to the constitutional issue.

(Hat tip: Sonny Bunch)