The Court Calls for the Views of the Solicitor General in Texas v. California, An Original Jurisdiction Case

Texas challenges California's Interstate "Travel Ban"

One of the few positive developments on the Court's Monday's orders list was a CVSG. (My previous posts are here and here). The Court called for the views of the Solicitor General in Texas v. California. No, not the dispute between Texas and California over the Affordable Care Act. This original jurisdiction case challenges California's interstate "travel ban." Texas offers this description:

12. In 2016, California's Legislature enacted A.B. 1887, which prohibits state-funded or state-sponsored travel to a State that, after June 26, 2015, has enacted a law that (1) has the effect of voiding or repealing existing state or local protections against discrimination on the basis of sexual orientation, gender identity, or gender expression; (2) authorizes or requires discrimination against same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression; or (3) creates an exemption to antidiscrimination laws to permit discrimination against same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression.

13. California's travel ban expressly targets the citizens and businesses of States, like Texas, that "offer[] more protection for religious freedom" than California believes is required by the First Amendment. A.16. The quintessential example cited by the California Legislature is a law that would protect "a wedding photographer who objected to same-sex marriage" on religious grounds from being forced "to provide photographic services for a same-sex wedding." A.11; cf. Masterpiece Cakeshop, 138 S. Ct. at 1723.

14. California's travel ban is grounded in animus towards religion.

…

21. California has so far applied its travel ban to eleven States: Alabama, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.

22. California has targeted each of these States, except Iowa and North Carolina, because they have sought to protect religious freedom.3

Today, the Supreme Court called for the views of the Solicitor General. One of SG Noel Francisco's last acts in office will be to decide how to handle this case. A brief will be filed at some point before the end of the year. If the administration changes, that brief will probably be withdrawn.

In any event, this case looks quite different after Bostock. 

Comments

[Martinned]

I would have thought that, even before Bostock, this kind of "legislature deciding what to spend tax money on" case would have been quite a reach.

[Brett Bellmore]

Yeah, while California policy can be pretty obnoxious at times, and I wouldn't be shocked if it WAS founded in all sorts of animus, they're not regulating where anybody can travel on their own dime, only where they'll pay you to travel.

It would seem to me they're entitled to do that.

[SlipperySlopes]

I've never heard of the SG withdrawing a brief before. Could you give an example?

[Dr. Ed]

I'd argue that it is MORE relevant after yesterday, in that this raises the religious freedom issue.

[Longtobefree]

Interstate commerce, anyone?

[Shadowy Agent]

Technically Texas passed a similar law called the Chick-Fil-A act. Which stops cities from boycotting Chick-Fil-A for their LGBTQ views. Technically the money the city spends should be considered government speech yet Texas prohibited them from spending money. If their allowed to do that how can they complain when California takes the opposite view.