AUSTIN, TX — The Texas attorney general on Monday moved to strike down California’s ban on state-funded travel to states it considers to have discriminatory laws.
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California’s ban was partially enacted in response to the Texas Legislature’s 2017 passage of a law allowing faith-based foster care and adoption agencies to deny gay couples and others from adopting children if such placements violate their religious beliefs.
In announcing his action against California in the U.S. Supreme Court, Attorney General Ken Paxton framed the issue as one predicated on upholding “First Amendment protections for religious liberty.”
“Texas respects and honors the religious beliefs of its citizens,” Paxton said in a press advisory. “California lawmakers do not. As a co-author of California’s travel ban admitted, they see religious beliefs as nothing more than ” ‘code to discriminate against different people.’ ”
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Gov. Greg Abbott in 2017 signed into law a measure that allows faith-based adoption and foster care agencies to prevent gay and transgender persons, as well as non-Christians, from adopting children under their stewardship. House Bill 3859 gained approval even as the state has struggling to overcome a critical shortage of homes for abused and neglected children, with many kids placed in hotels and offices as makeshift living quarters as they wait to be placed with adoptive parents.
Seeking to defend the move, conservative lawmakers noted at the time that religious agencies make up about a quarter of the child placement agencies in Texas. The law also gives these agencies leeway in denying adoptions to those not practicing the Christian faith, in a Republican-controlled state where theological underpinnings are often intertwined with legislation.
“Texas partners with a diverse array of agencies to expand the number of safe and loving homes available to children,” Paxton said in explaining his legal action regarding the travel ban. “California’s opposition to diverse and inclusive options for foster children, along with its decision to utilize commerce as a tool of economic warfare, divide the nation and demonstrate a disregard for the safety and well-being of Texas children.”
Paxton labeled California’s law as punitive: “California is attempting to punish Texans for respecting the right of conscience for foster care and adoption providers,” the attorney general wrote. “And as the U.S. Supreme Court said recently in upholding the religious liberty of artist Jack Phillips, disparaging religious beliefs like the California Legislature did here, ‘as merely rhetorical — something insubstantial and even insincere,’ is inappropriate for any entity charged with enacting fair and neutral laws.”
Phillips is a Colorado baker who refused to make a wedding cake for a gay couple on religious grounds. His stance was partially upheld by the Supreme Court in 2019, prompting the baker to drop his federal lawsuit accusing the state of waging a “crusade to crush” him over his religious beliefs that guided his decision not to create a cake celebrating gender transition.
In a similar 2018 case, Paxton inserted himself in supporting a pair of Oregon bakers refusing to make a cake for a same-sex marriage ceremony. Leading an 11-state coalition siding with the bakers, Paxton filed a friend of the court brief with the U.S. Supreme Court at the time, asking it to review the case involving “their constitutionally protected conscience rights.”
Formally known as an amicus curiae brief, Paxton’s legal filing comprised legal documents filed in appellate court cases by nonlitigants with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider, as explained in the Public Health Law Center website.
While defending the Texas stance on adoptions and foster care, Paxton suggested that the California ban weaponized travel as a tool of retaliation over ideological disagreements.
“The law California opposes does not prevent anyone from contributing to child welfare,” the attorney general said. “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. Boycotting states based on nothing more than political disagreement breaks down the ability of states to serve as laboratories of democracy while still working together as one nation — the very thing our Constitution intended to prevent.”
Travel bans over ideological differences have recently become a tool of retaliation among states against a backdrop of seemingly entrenched polarization. Other than California, the New York Times reported, officials from New York to Minnesota to Washington State have pursued such bans in response to laws seen as potentially promoting discrimination.
Texas itself has implemented similar bans in buttressing ideologically guided policies. In 2017, the governor signed into law House Bill 89, which bans state agencies from contracting with or investing in companies that boycott Israel as a political statement against the Middle East country’s dealings with neighboring Palestinians. The Texas law prohibits all state agencies from contracting with, and certain public funds from investing in, companies that boycott Israel.
At the University of Texas at Austin, the law had an immediate effect of limiting graduate students’ travel plans. University officials last year were notified they could no longer use state money to stay in Airbnb-listed lodging after Texas blacklisted the company for what it perceived to be an economic boycott against Israel — a move seen as anathema to the tactics of House Bill 89.
California also has implemented a similar travel ban to Oklahoma over similar LGBTQ policies, leading to an interstate tit-for-tat when Oklahoma’s governor reflexively issued an executive order prohibiting state employees from “all nonessential travel” to the Golden State, with exceptions for Department of Commerce employees traveling for business recruiting purposes, as CNN and other media outlets reported. Texas and Oklahoma are two of 11 states placed on California’s travel ban over policies perceived as discriminatory.