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Texas Picks Another Doomed Fight

Rand Paul, Texas AG Ken Paxton, Angela Paxton, Wade Emmert and Steve Munisteri.
Texas Attorney General Ken Paxton, second from left, in Dallas in January 2015. Photo by Gage Skidmore.

Texans can argue among themselves about who was the greatest of their dominion’s “founding fathers.” As they might say, I have no dog in that fight.

Being a New York native transplanted to Florida, I am not nearly as steeped in Texan history and lore as, say, Ken Paxton, that state’s attorney general. But I know enough to point out to Paxton that Sam Houston stood out among his fellow Texas founders – including William B. Travis, James Bowie and Stephen F. Austin – in his wisdom about choosing which battles to wage.

Paxton is catering to a conservative, religious political base within his only moderately less conservative and religious state by picking a fight with the state of California in the U.S. Supreme Court. It is a fight Paxton is likely to lose, if he gets to fight it at all. But then, Texas has a history of glorifying strategic choices that end in disaster.

Paxton wants the high court to overturn California’s ban on using state funds to sponsor or pay for travel to Texas. That ban is in response to a 2017 Texas law that allows child welfare agencies to deny adoption or other family services that would violate “sincerely held religious beliefs.” (Any providers that deny such services must, however, provide referrals to other agencies.) California, not unreasonably, sees the Texas law as authorizing faith-based discrimination against LGBTQ families and individuals. Under a 2016 California law, official travel is banned to any state California deems discriminatory in this way. So the state chooses to take its travel business elsewhere.

Paxton’s filing with the court observes that Texas is one of 11 states, mostly in the South, that California has blacklisted from state-funded travel, although groups that receive state funds may raise money from private sources for travel to these states. If Paxton does not want to look to a 19th-century politician like Sam Houston for guidance, he might look to his contemporaries. None of the other 10 states California has listed have asked the Supreme Court to require California taxpayers to foot the bill for patronizing their hotels, restaurants and rental car agencies. There are more promising and productive ways for those states to respond, if they choose. It’s usually better to fight battles you can win.

Houston understood this. In the early stages of Texas’ war for independence from Mexico, Houston counseled that the garrison at the Alamo was too small to repel an expected Mexican attack. Travis and Bowie, who had taken command of the 200 or so defenders at the former mission, decided to stay put anyway. They were killed, along with almost everyone else in the compound in present-day San Antonio, when Mexican troops under Gen. Antonio Lopez de Santa Anna overran the Alamo on March 6, 1836. In command of the remaining Texas troops, Houston retreated eastward ahead of Santa Anna’s superior numbers.

Houston had better odds when he attacked the main Mexican encampment in the marshes near present-day Houston on April 21 that same year. Though still outnumbered nearly 2 to 1, the Texans routed the Mexicans in what became known as the Battle of San Jacinto. They captured Santa Anna and secured the independence of the republic they had declared on March 2, while the Alamo was still besieged. The battle cry “remember the Alamo” became Texas lore. Later it became American lore, too, when Texas joined the Union.

Houston defeated Austin in an election to become the first president of the Republic of Texas. Later, as governor after statehood, Houston tried to stop Texas from joining the Confederate side in the Civil War. His compatriots again failed to heed his counsel. Once again, that decision ended badly.

The lone star flag of Texas flew when it was an independent republic and reminds today’s state residents of that heritage. From its largely isolated electric power grid to the subgenre of “Red Dirt” country music that it shares with Oklahoma, Texas proudly asserts its right to do its own thing. But, as historian H.W. Brands observed in an in-depth look at the Alamo for Texas Monthly, “sacrifice is not synonymous with good judgment.”

Paxton’s argument is that California’s statute violates federal law and constitutional provisions protecting freedom of religion, along with constitutional protections for interstate commerce and equal protection. “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,” Paxton wrote to the high court. “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.’”

In most situations the Supreme Court only takes cases on appeal, but it is the court of original jurisdiction in disputes between states. This means that Paxton has not had a chance to test his arguments in lower courts. I suspect the only court he is much concerned with is that of public opinion in his own state, where he is seen as a potential future candidate for governor.

Even for a conservative Supreme Court majority that upheld the right of a baker to decline to prepare a cake for a same-sex wedding, the argument that California cannot withhold its own business from states whose policies it dislikes is apt to fall flat. The justices are likely to note that Texas is hardly an economic or political lightweight. It is free to direct its own spending more or less any way that it sees fit.

For starters, California is a significantly more popular travel destination than Texas. The Alamo is a famous attraction, but it sure isn’t Disneyland.

Paxton himself noted that other states (Oklahoma in particular) have, in fact, restricted state-sponsored travel to California in response to that state’s boycott. “Before resorting to self-help, and to restore norms that have long governed the States’ relationships with each other, Texas turns to this Court,” he wrote. “Only this Court can decide conclusively whether California has violated the Constitution or whether instead the economic warfare that California has launched comports with the Constitution and may be replicated elsewhere.”

If Texas really wants to roll out the heavy legal artillery, it could go further. For example, it might join with other Sunbelt states to push Congress or the courts to restrain states like California and New York from aggressively asserting rights to tax their former residents based on ill-defined and subjective tests of “domicile.” That would hit California right where it is aiming its blows at Texas – in the pocketbook. Texas could bring to bear a lot of political heft on that issue, especially in alliance with other states like Nevada and Florida.

If the Supreme Court agrees to hear Paxton’s case at all, his chances don’t look very good. He may simply figure that he’ll be remembered in some quarters as a hero, even if he loses. On that point, too, I think he misreads the present as well as the past. Whatever the religious beliefs of those in the child welfare system may be, and however committed Texas is to ensuring their freedom to practice those beliefs, declining to place needy kids in safe and loving homes isn’t very inspirational in today’s America. I expect that is true even in the formerly independent Republic of Texas.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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