Attacking the California Travel Ban

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

It was inevitable that other states would push back against California’s moralizing by legislation. California passed legislation to ban official travel to states that, in the view of legislators and the attorney general in one way or another discriminate against the LGBTQ community. In retaliation, Tennessee and Oklahoma issued travel bans to California and now Texas has filed a lawsuit to have the California law overturned. 

Since the lawsuit pits one state against another, the U.S. Constitution demands that the lawsuit is filed directly to the United States Supreme Court, which has original and exclusive jurisdiction over such a case. 

Last year, I wrote about possible consequences of the travel ban, including asking, “What if states on the California banned list decide to strike back and ban official travel to California? Are we seeing the beginning of an economic war between the states if that occurs? Are we treading closer to the courts intervening on the basis of the US Constitution’s Commerce Clause?” 

Texas raises the commerce issue and the effect of a travel ban on Texas businesses, but the main thrust of the lawsuit is based on religious grounds. Texas was added to the travel ban—one of 11 states on the list—for passing a bill that allowed child welfare providers to refuse carrying out their responsibilities based on religious beliefs. The office of California Attorney General Xavier Becerra concluded that the law permits discrimination against children or foster parents in the LGBTQ community.

The Texas Attorney General, Ken Paxton, disputes that the law promotes discrimination. “The law California opposes does not prevent anyone from contributing to child-welfare,” Paxton said in a statement, “in fact, it allows our state to partner with as many different agencies as possible to expand the number of safe and loving homes available to foster children.”

Paxton called the California law a boycott based on a political disagreement.

Whether that note will serve Texas’s purposes is questionable for the Supreme Court, if it reaches the same conclusion, is loath to get in the middle of a political dispute. 

The beauty of federalism is that it can account for different perspectives carried out in diverse states. Sometimes differences in philosophy cause citizens to vote with their feet by moving to states in which they feel more comfortable. We are seeing some of that now with California citizens leaving for various reasons, including political ones. 

However, it is also clear that different perspectives cannot subvert basic freedoms. The Civil War settled that point. 

California’s response may be that basic freedoms are put in jeopardy by Texas law.

The Texas AG argued that states acting as laboratories of democracy are undermined by boycotting actions between the states. 

The Texas case could be stronger if not arguing political differences, but rather the economic threat, as I wrote about in that earlier piece, based on an accepted interpretation of the Commerce Clause to guard against retaliatory measures that the Commerce Clause was designed to prevent.

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