In early May, the governor of Alabama, Kay Ivey, signed into law a bill passed unanimously by her state’s legislature. It allows adoption agencies to choose to follow faith-based policies — including declining to place children with same-sex couples — if they choose. South Dakota and Texas did the same. In March — in response to a Bible verse being axed from a school play — Kentucky passed a law prohibiting school officials from punishing students for religious expression in school.
The response from the left was predictable: The chauvinists of red-state America seek to allow atavistic acts of discrimination against embattled LGBTQ communities, all the more chafing in the age of Trump; schoolchildren will now be allowed to refuse gay students admission to their student groups; the mass of deplorables are unwinding the progress made under the Obama administration and returning us to sometime before the Bronze Age.
The state of California had the most extreme reaction. In accordance with state law — which bars state-funded travel to states that permit discrimination based on sexual orientation or gender identity — Attorney General Xavier Becerra announced late last week that he would block state-funded travel to Kentucky, South Dakota, Alabama, and Texas so long as their allegedly discriminatory policies remained in effect.
California is not the first state to impose bans on state-funded travel to states that have passed laws with which it disagrees. Connecticut imposed one on Indiana during the progressive uproar over Indiana’s Religious Freedom Restoration Act. A litany of states and cities passed travel bans against North Carolina last spring, during the “bathroom bill controversy.” Corporations and celebrities joined in the fray, too — Bruce Springsteen cancelled a concert there, and the NCAA temporarily boycotted the state.
So California’s travel ban is nothing new. But that doesn’t mean it’s harmless or that we should allow it to pass unnoticed, dismissed as simply another instance of blue-state America waging its tiresome crusade against its enemies.
The sheer scale of the travel ban is one reason. Texas, one of the states falling under the ban’s purview, is a big place. The second-largest state in the Union, it is home to the bustling, diverse metropolises of Houston and Dallas, and its economy is essential to the functioning of the country and, indeed, the world. California is of similar importance. Its public universities in Los Angeles, Davis, Berkeley, and Irvine are genuinely world-class, with academics who lead the globe in their field. Now these professors will be unable to attend conferences with colleagues at Rice University, Texas A&M, or the University of Texas at Austin, and they will have no access to the invaluable archives and labs those institutions house, unless they can find private or federal grants to pick up the tab. Now college athletics recruiters will be unable to scour Texas — or Kentucky and Tennessee, among others — for the best athletes. Perhaps they will not even be permitted to play in tournaments there.
If scale is one reason to worry, the slippery slope is another. At the moment, state lawmakers are using such travel bans for coercive purposes only in those causes that cut near and dear to the progressive heart — the protection of LGBTQ groups against supposed theocratic authoritarianism. Given the importance of virtue-signaling in progressive politics — and the spectacle of politicians and pundits desperately attempting to pledge their fealty to the cause, each faster than the other — this should come as no surprise.
Why not ban state-funded travel to states that stubbornly refuse to make the whole-scale conversion away from fossil fuels and toward renewable energy? After all, the future of all humanity is on the line.
But there’s no reason to suppose that the use of such travel bans will remain restricted to the LGBTQ domain. Progressives have, for the moment, singled out infractions against LGBTQ citizens as a special kind of crime deserving of a special kind of punishment. If they come to believe that other crimes are equally heinous, and deserving of an equally harsh punishment, though, we could easily see the imposition of travel bans in all sorts of cases. Why not ban state-funded travel to states that apply for federal waivers under the American Health Care Act? After all, if progressives’ own rhetoric is to be believed, those governors are embarking on nothing less than the deliberate mass-murder of their own citizens. Or why not ban state-funded travel to states that stubbornly refuse to make the whole-scale conversion away from fossil fuels and toward renewable energy? After all, the future of all humanity is on the line.
If progressives ever expand the analytical framework they have constructed for the punishment of those who would infringe upon LGBTQ rights, we are in for a dramatic ratcheting up of both the scale and the scope of this debate.
It has become almost a cliché by this point that America, as a nation, is coming apart — fraying at the edges — and that the primary reason for this cleavage is partisanship. It used to be that a person’s ethnic background, class status, and geographic location colored the modes and currents of our national life. Now those factors have ebbed, replaced by the brute fact of the party. Republicans and Democrats live in different places, consume different news, watch different television shows, eat different foods; and each side views the other as a fundamental threat to its way of life.
For some time, we’ve recognized the cultural aspects of our separation, but what of the political component? Yes, America is increasingly dividing itself into two distinct cultures, but how do those cultures become two politically distinct entities? How will we replace the relatively amicable political relationships between the states — the relationships that undergird the integrity of our republic, without which we could descend into an 1850s morass — with antagonistic, hostile ones? Politics is, in the words of the late Andrew Breitbart, downstream from culture, but how?
California’s travel ban provides something of an example. Since November, California has embarked on what might be termed a project in expansive, or outward-facing, federalism. Its governor has ventured to China to conduct relations there in the wake of the United States’ withdrawal from the Paris climate-change accord. It was, until last week, circulating proposals to receive exemptions from normal Medicare and Medicaid regulations so that it could create a radical new universal health-care system previously unseen in this country. (It recently abandoned this effort because of its economic unfeasibility.) And now it is seeing fit to conduct quasi-boycotts of its fellow states based on policy choices with which it disagrees. You’d be forgiven for thinking the state is conducting its own sort of quiet secession.
This brand of federalism differs considerably from the typical model of federalism. As McGill University’s Jacob Levy explained it after the January imposition of the temporary travel ban from certain Muslim-majority countries: Whereas prototypical federalists view the “states as autonomous inward-facing governments implementing diverse policies” and zealously guarding their autonomy from the ever-encroaching leviathan of the federal government, Californian-style federalism views the states as “powerful outward-facing participants in national politics,” providing “organizational, institutional, and political strength that is otherwise hard to come by in the face of a tremendously powerful central government.” Only through such an outward-facing, oppositional federalism, he wrote, can states act as guarantors of the rights properly accorded to the American people.
This is all well and good so long as it applies within the boundaries of an individual state. California as a state is welcome to use whatever means it likes to protect what it views as the rights of LGBTQ citizens who live within its own borders. Where we run into problems with the American system of government is when states use their cultural and economic clout to bully other states into submission.
Here, a resolution under consideration by the Tennessee State Senate has it essentially right: The “Constitution provides for a strong federal government for the common defense, but the Tenth Amendment grants the several states sovereignty in addressing issues solely within their jurisdiction, and all states should respect this most basic precept of American government.” The states are sovereign. Their policies may be subject to review or alteration by the various branches of the federal government, but their fellow states — with which they are co-equal under the dominion of Washington — should accept their policies as the product of the democratic process of a reasoned people sovereign within their own borders. In other words: Live and let live.
There is, of course, nothing illegal about California’s actions, or the actions of the many blue states that have seen fit to censure the red. They do not violate the letter of the Constitution. They deserve to be labeled with the late Antonin Scalia’s “stupid but constitutional” stamp, indicating that the actions themselves, though dangerous, cannot be cast out into the abyss of unconstitutionality.
But it’s worrying that California’s actions conform to the letter of the Constitution while undermining its core structure. If we cannot turn to the Constitution as recourse, we are left to rely on the virtues of those in power. We can only hope that they will realize the error of their ways, refrain from taking undue or improper measures, and decline to exercise the power they have in their hands. What we need is a unilateral disarmament, although one that will primarily occur on the Left, because the Right has so far declined to take up the arms accorded to it. We need blue-state governors who will recognize the properly sovereign nature of the 50 states and abstain from crossing the Rubicons that protect the stability of our fragile political structure.
Jerry Brown does not strike me as a man inclined to exercise that sort of constitutional humility.