(CN) --- The U.S. Supreme Court is shirking its duty to adjudicate disputes between states, two of the court’s conservative judges said Monday in dissent of the majority’s refusal to exercise jurisdiction over Texas’ challenge of California’s ban on state-sponsored travel to the Lone Star State.
Then-California Governor Jerry Brown signed Assembly Bill 1887 in September 2016 in response to a trend of Republican-led states passing laws targeting transgender and homosexual people.
AB 1887 barred lawmakers and state employees, and even public university sports teams, from using taxpayer money to travel to states that had passed laws after June 26, 2015, authorizing discrimination based on sexual orientation, gender identity and gender expression, or repealed state or local protections against such discrimination.
Under the measure, which took effect in 2017, then-California Attorney General Xavier Becerra, now President Joe Biden's secretary of Health and Human Services, prohibited state-sponsored travel to Texas, North Carolina, Tennessee, Mississippi, Alabama, South Dakota, Kentucky and Kansas.
Texas made California’s list through the Republican-majority Texas Legislature’s passage of a law in 2017 that lets faith-based child welfare agencies decline to provide adoption services for same-sex couples on religious grounds.
Claiming California’s travel ban unfairly imposes economic sanctions against Texas, its residents and businesses, Texas Attorney General Ken Paxton filed a motion for leave to sue California with the U.S. Supreme Court in February 2020, asking the high court to declare the travel ban unconstitutional and order California to remove Texas from its list.
Paxton argued California was targeting states that respect religion freedom to punish them for not adhering to its Democratic leaders’ brand of progressive ideology.
“In California’s so-called forward thinking, it is not enough to burden religion in California; it must go further and coerce other states to increase burdens on religion within their own borders,” Texas states in its complaint.
A 7-2 majority of the Supreme Court declined Monday to review Texas’ challenge, drawing a dissent from Justice Samuel Alito, which was joined by fellow conservative Justice Clarence Thomas.
According to Alito, the U.S. Supreme Court has original and exclusive jurisdiction of all controversies between two or more states, and for the first 150 years after the adoption of the Constitution the court never refused to permit the filing of such a complaint.
But Alito says in their 1971 ruling in Ohio v. Wyandotte Chemicals Corp., the court’s justices opined that exercising jurisdiction over all state-versus-state disputes was “untenable as a practical matter” and could divert their attention away from the court’s more important role as the final federal appellate court.
In 1976, the high court, in an unanimous decision, for the first time declined to exercise its exclusive jurisdiction in a dispute between two states, Arizona and New Mexico, Alito says in his dissent.
“Since that time, the court has repeatedly declined to exercise its exclusive original jurisdiction in state-versus-state cases,” Alito wrote, noting that despite those decisions, several dissenting justices have, like him, questioned if the court really has discretion to decline to hear these cases and scholars have criticized the practice.
Alito believes the Supreme Court is the proper venue for state-versus-state litigation because it is removed from any inkling of regional bias.
“Unlike the regional courts of appeals, the federal district courts, and the state courts, we are not tied to any region or state and were therefore entrusted with the responsibility of adjudicating cases where the suspicion of local bias may run high. The present case is just such a suit,” Alito wrote in the 10-page dissent.
Alito said he would have at least let Texas submit briefs.
“At a minimum, we should note probable jurisdiction and receive briefing and argument on the question. Texas raises novel constitutional claims, arguing that California’s travel ban violates the privileges and immunities clause, the commerce clause, and the equal protection clause," he wrote. "I express no view regarding any of those claims, but I respectfully dissent from the court’s refusal even to permit the filing of Texas’s complaint."
North Carolina’s so-called bathroom bill, pushed through by the state’s GOP-controlled Legislature in 2016, required transgender people to use bathrooms matching the sex on their birth certificates and prohibited cities from enacting LGBT anti-discrimination ordinances. California Democrats held up that legislation as Exhibit A of the need for the Golden State to condemn such moves with the travel ban measure.
The North Carolina bill was repealed after it cost the Tar Heel State millions in revenue from businesses that moved projects elsewhere, canceled events, or called off plans to expand their operations in the state in boycott of the legislation.
The California sanctions have done nothing to stop Texas Republicans from proposing legislation aimed at LGBTQ Texans, despite warnings passage of the measures could damage the state’s economy.
Dozens of companies with operations or headquarters in Texas – including Amazon, Facebook, American Airlines and Microsoft, all of which belong to the business-advocacy group Texas Competes – signed an open letter April 19, saying they support revising Texas’ nondiscrimination laws to include LGBTQ people.
Texas Competes has reportedly named 26 bills in the state Legislature it says would violate the rights of LGBTQ people, including a proposal to limit transgender youth to competing in school athletic competitions against students of the same biological sex.
“Such legislation would send a message that is at odds with the Texas we know, and with our own efforts to attract and retain the best talent and to compete for business,” the open letter states. “We will continue to oppose any unnecessary, divisive measures that would damage Texas’ reputation and make our customers, our visitors, and our employees and their families feel unwelcome or unsafe.”
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