Two weeks ago, North Carolina lawmakers repealed the state’s monstrously homophobic House Bill 2 in a way that didn’t make anyone happy. They replaced it with a bill that reset bathroom access standards to where they were before HB2 was rammed through the legislature in a mere 12 hours last spring.
However, it also barred local governments from passing nondiscrimination ordinances until at least 2020. Only two other states hamstring local governments in this way. It also bars state agencies and school boards from passing regulations on bathroom access without legislative approval. That permission is not likely to be forthcoming, given that the legislature has Republican supermajorities in both chambers due to one of the most brutal gerrymanders in the nation.
Liberals condemned the compromise as discrimination in sheep’s clothes, while conservatives claimed that it would open the door for men to go into women’s bathrooms. Well, at least four Republican state representatives tried to respond to the hand-wringing from the religious right. However, they did so by concocting a bill that made the original HB2 sound like a model of restraint. Fortunately, the Republican state house leadership effectively killed it after concluding it was blatantly unconstitutional.
On Tuesday, state representatives Larry Pittman, Michael Speciale, and Carl Ford introduced the “Uphold Historical Marriage Act,” which may very well be one of the most outrageously homophobic bills introduced in any legislature at any level in this country. The bill argues that marriage is a matter reserved to the states under the 10th Amendment. For that reason, the bill’s authors argue that the Supreme Court overstepped its bounds when it declared via Obergefell v. Hodges two years ago that marriage equality is the law of the land. For good measure, the bill’s authors contend that marriage equality runs counter to “the decree of Almighty God” in Genesis 2:24 that marriage is only between one man and a woman.
Had this bill passed, it would have declared the marriage equality decision “null and void in the State of North Carolina,” and also unilaterally declared that a state constitutional amendment banning same-sex marriage is still valid. That amendment was passed in 2012, but was struck down by a federal court in 2014.
Not surprisingly, criticism came in fast and hard. WNCN in Raleigh got a sample.
Speciale, best known for sharing a meme calling President Obama “an Islamic son of a b*tch” in 2015, told WNCN off-camera that all he wanted to do was roll back state law to what it was before the federal courts got involved. However, according to Greg Wallace, a law professor at Campbell University, Speciale and his two colleagues did it in a way that would almost certainly get this bill struck down if challenged in court.
But concerns about constitutionality didn’t stop the state legislature from ramming HB2 through last year. It therefore came as something of a surprise when state house speaker Tim Moore announced that due to “strong constitutional concerns” about the bill, it would be referred to the House Rules Committee and would not be heard during this session. For years, the House Rules Committee has been the place where bills that don’t have the support of a party’s leadership are sent to be formally euthanized.
Moore is a practicing attorney. But it doesn’t take a law degree to know that this bill is blatantly unconstitutional. For one thing, this law is rooted in the utterly discredited theory of nullification. It has long since been established that state governments do not have the power to unilaterally strike down federal laws or court decisions.
A number of religious right activists have tried to resurrect this theory in the wake of decisions favoring marriage equality. Indeed, just last year, Oklahoma pastor Paul Blair was ramping up a national effort to get states to nullify Obergefell. All you need to know is that the Federalist Society, the fountainhead of far-right legal theory in this country, agrees that states do not have the power to nullify federal law. The Federalist Society, people.
But a number of rank-and-file Republican lawmakers rolled their eyes at this bill as well. For instance, state representative Chuck McGrady called the bill “stupid.”
Not exactly. Any legislator can file a bill, even a stupid one. Remember what happened w/ the bill a few years ago 2 create our own currency https://t.co/hMq3uAKxi0
— Rep. Chuck McGrady (@ChuckMcGrady) April 12, 2017
And state representative Scott Stone mused that even if this bill had made it to the floor, it was probably the least likely bill to pass of over 100 filed on the same day.
— Rep. Scott Stone (@scottdstone) April 12, 2017
So a caucus made up mostly of the same people who passed HB2 finally took the time to remember what the Constitution actually says. If they’d done so last year, it would have spared the state–and themselves–a world of embarrassment.
(featured image courtesy EqualityNC’s Facebook)