Tuesday, June 16, 2020

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

By Josh Blackman - June 16, 2020 at 09:15AM

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 If the administration changes, that brief will probably be withdrawn.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. 


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