You may recall that on Wednesday, North Carolina’s Republican-dominated General Assembly rammed through what may be the most staggeringly homophobic law in the nation. In response to Charlotte adding sexual orientation and gender identity to its non-discrimination ordinance, the legislature barred local governments from giving non-discrimination protection to LGBT residents. However, it will likely be a dead letter. It’s only a matter of time, but at some point this law will be struck down in court. It may also spell finis to other, equally outrageous laws enacted in recent months.
Mark Joseph Stein of Slate, an expert on legal issues affecting the legal community, took a hard look at the badly-misnamed “Public Facilities Privacy and Security Act.” His conclusion? This law is not just unconstitutional, it is “in total contravention to established Supreme Court precedent.” He noted that North Carolina’s new measure is almost identical to a Colorado law thrown out by the Supreme Court in Romer v. Evans.
In that 1996 case, a 6-3 decision, the Supremes found that any law “sing(ling) out a certain class of citizens” and “impos(ing) a special disability upon those persons alone” is a blatant violation of the Equal Protection Clause. HB 2, as the law was numbered, is no different. The one thing on which the legislature is seemingly hanging its hat is the need to protect women from being attacked by perverts in the bathroom–but that argument has been comprehensively debunked.
Stein also notes that the law’s ban on local non-discrimination ordinances could potentially run afoul of a much longer-standing precedent, Arlington Heights v. Metropolitan Housing Development Corp. That case, decided in 1977, required courts to apply a balancing test to determine whether a law that adversely affected minorities was enacted with discriminatory intent, and thus violates the Equal Protection Clause. HB 2 flunks on all counts. Disproportionate affect on a minority class? Check. Enacted in a manner that departs from normal procedures? Check–it was introduced, debated in committee, passed in both chambers, and signed into law in a mere 12 hours. A historical background and legislative history that show discriminatory intent? Check, check, check.
The law also appears to run counter to Reitman v. Mulkey, a 1967 case that tossed out a California ballot proposition which forbade the state from interfering with a landlord’s refusal to sell or rent their property. The Supremes found that this law created a “right to privately discriminate” against minorities. This is important, since HB 2 creates a statewide nondiscrimination law that doesn’t mention sexual orientation or gender identity–thus giving businesses carte blanche to refuse service to gays.
Cliff Notes version–any one of these precedents which have stood for 20 years or more would be enough to strike down HB 2. All together? The velocity with which it will be thrown out will create quite the breeze. And that day may come a lot sooner than even the biggest optimist may have hoped. The American Civil Liberties Union announced on Friday that it will almost certainly challenge the law in federal court. And if this law is struck down, it’s hard to see how similar laws in other states will be allowed to stand.
At least one Republican state senator, Tom Apodaca, had the audacity to suggest that the state ought to send Charlotte the bill for the special session at which HB 2 was enacted. Apodaca may end up eating his words. After all, the amount that North Carolina will have to spend defending this outrageously unconstitutional law will exceed the cost of the special session several times over. Perhaps when all is said and done, we ought to take the cost of defending this bill out of the paychecks of the Republicans who orchestrated this travesty.
