Sooo, The Supreme Court… Anybody Want To Start Over?
By DEACON MIKE MANNO
Okay, you might ask, so what’s with the Supreme Court?
Well, it’s taken a beating lately and under the leadership of Chief Justice John Roberts it has done nothing to distinguish itself. Now don’t get me wrong, I think the court has been doing a nice job in protecting our religious liberties and many other issues close to the heart of Christians in general and Catholics in particular. But on some of the big, and I mean really big, issues, it has let us down, mostly by its inaction.
Case in point: Just last month the court refused to allow a case to be brought against the state of California by the state of Texas over a 2016 California law that banned official travel to Texas and several other states that failed to meet specific standards regarding discrimination on the basis of sexual orientation, gender identity, and gender expression.
Besides Texas, the states that were affected were Alabama, Iowa, Kansas, Kentucky, Mississippi, North Carolina, Oklahoma, South Carolina, South Dakota, and Tennessee. According to the then-attorney general of California, Xavier Becerra, now the Biden administration’s secretary of Health and Human Services, 11 states were on the ban because of laws or practices designed to protect religious liberty. North Carolina was on the list because it enacted a law requiring state agencies to maintain separate-sex bathrooms, and my home state, Iowa, was on the ban because it wouldn’t provide Medicaid coverage for gender-reassignment surgery.
In February of 2020 the attorney general of Texas filed suit in the Supreme Court against California over the travel ban. In its filing with the Supreme Court, Texas produced the legislative record of the California law which was replete with anti-Christian and anti-religious references including a sponsor’s complaint that called religious beliefs the “old ways” and that “religion has been used again and again as a tool to justify discrimination.”
That led to Texas’ argument that the California ban was “grounded in animus towards religion,” and “The California Legislature expressly found that other states rely on ‘religious freedom’ as a ‘justification for discrimination’.” In addition to religious animus, Texas alleged violations of the Privileges and Immunities, Interstate Commerce, and Equal Protection clauses of the U.S. Constitution.
“[T]he express aim of California’s travel ban is to punish the citizens and businesses of the target states to pressure those states ‘to change their laws’ to provide fewer protections for religious freedom,” Texas wrote to the court, adding, “As intended, the direct and indirect effects of the travel ban are, respectively, to harm the businesses in the targeted states and to deprive the targeted states of associated tax revenue.”
Ultimately 19 states filed briefs in support of Texas.
Now, a little bit of procedure to fill in some of the missing points here. Under the Constitution, the Supreme Court has only appellate jurisdiction on the vast array of cases that are presented to it. However, under Article III, Section 2 of the Constitution, the Supreme Court has original jurisdiction in a limited number of cases including ones where a state is a party, and appellate jurisdiction in all other cases.
In simple language that means that the jurisdiction of the Supreme Court is limited to reviewing cases that have been decided elsewhere and cannot act as a trial court — that is, hearing the case for the first time, which is known as original jurisdiction. Just as an aside, the benchmark 1803 case of Marbury v. Madison, from which the concept of judicial review of legislative action has grown, involved the question of the court’s original vs. appellate jurisdiction.
Here, Texas was invoking the Supreme Court’s original jurisdiction — its limited ability to hear the case as a trial court. It was, after all, one state suing another state over infringements against its sovereignty: Where else would you go in such a situation?
That’s when the Supreme Court dropped its bombshell; without explanation the court refused to accept Texas’ application for leave to file its case. Zip, done, nada. Texas, just live with it!
Two of the justices, Samuel Alito and Clarence Thomas, to their credit, dissented. Justice Alito compared the decision to a hypothetical case of a federal judge who refused to hear a diversity suit — one between citizens of two different states — because he had more important things to do (which might indicate the topic of discussion in chambers). “We would reverse in the blink of an eye,” Alito wrote. “We might also wag a finger at the lower courts and remind them that a federal court’s obligation to hear and decide cases within its jurisdiction is ‘virtually unflagging’.”
He continued, “The State of Texas wishes to sue the State of California and invokes our ‘original and exclusive jurisdiction of all controversies between two or more States.’ Can we justify our refusal to entertain Texas’ suit on essentially the same ground that we would reject out of hand in the hypothetical diversity case just described, that is, on the ground that our original jurisdiction no longer seems as important as it was when the Constitution was adopted, and that a proliferation of original cases would crowd out more important matters on our appellate docket?…
“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. . . . The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive.
“The principal reason provided — that entertaining all suits between two states would crowd out consideration of more important matters on our appellate docket — rests on a dubious factual premise and, in any event, is essentially indistinguishable from the justification given by the imaginary district court judge with a distaste for diversity cases. And the suggestion in Louisiana v. Texas (cite omitted) that we should hesitate to entertain suits between two states because they are of a ‘delicate and grave’ character seems exactly backwards. It is precisely because these disputes have a ‘delicate and grave’ character that they were placed exclusively in our hands….
“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.”
So where does that leave Texas? For starters, without a forum to have its day in court. But it left California happy. Attorney General Rob Bonta said the court’s decision was “a win for California and it’s a win for our commitment to respecting LGBTQ+ rights. Bottom line: Texas can’t dictate how the State of California uses its own resources.”
But it seems to me that Bonta has it backwards; the case was about California trying to dictate policy to other states.
Unfortunately we’ll never know if Texas and the nineteen states that supported it were right or not. We’ll never know if California’s actions violated the Equal Protection Clause, or the Interstate Commerce Clause, or the Privileges and Immunities Clause of our Constitution. We’ll never know those things because the Roberts Court continues its stubborn refusal to consider those cases which strike at the heart of federalism and the mechanics of our constitutional government, such as those pre- and post-election cases — especially from Pennsylvania — that were rejected out of hand and didn’t even offer us the illusion of an objective look.
We deserve more. Right or wrong the court is obligated to hear, deliberate, and render decisions in cases like these. That is their sworn duty. In that they have failed.
(You can reach Mike at: DeaconMike@q.com, and listen to him every Thursday at 10 a.m. Central, on Faith On Trial, on IowaCatholicRadio.com.)
