Inside the Courts

Familiar soldiers enlist in North Carolina’s culture wars

HB2: A timeline for North Carolina’s controversial law

North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.
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North Carolina repealed HB2 in 2017 but left intact some of its provisions. But with Charlotte’s reputation tainted, the city is still paying to market itself to visitors.

In North Carolina’s culture wars, they’ve gotten the bands back together.

Many of the same names that took to the courtrooms in the state’s fight over gay marriage two years ago have re-enlisted as new battles over religious freedom and bathroom rights have sprung up.

House Bill 2, known worldwide as HB2, restricts LGBT protections, including the bathroom rights of transgender individuals.

The older Senate Bill 2 – heck, let’s call it SB2 – allows North Carolina magistrates to opt out of performing same-sex marriage ceremonies if they violate their religious beliefs.

Both laws were crafted by conservatives in the aftermath of their bitter 2014 marriage defeat. Now both are subjects of federal lawsuits.

A closer look at the documents in each reveal some familiar names.

There’s the GOP legislative tandem of Phil Berger and Tim Moore, who spent tens of thousands of taxpayer dollars in 2014 on what now appears to have been a late and futile effort to save Amendment One, the state’s same-sex marriage ban.

Now the pair has asked a judge to allow them to wade into the fight over the magistrate law. Helping them along are the same two private attorneys the lawmakers hired in the marriage case: California law professor John Eastman and Charlotte attorney Robert Potter Jr. Potter is also one of the attorneys of records in the legislators’ lawsuit in support of HB2.

On the other side of the magistrate struggle are Charlotte lawyers Jake Sussman, Luke Largess and John Gresham. Their firm also filed the lawsuit that brought down Amendment One. In 2014, they fought to keep Berger and Moore from joining the marriage case. This week, they filed a similar motion trying to rope the legislators off from the magistrate fight.

The judge in the SB2 case? U.S. District Judge Max Cogburn of Asheville. He’s the same judge who ruled on the Charlotte marriage case and struck down Amendment One.

Berger and Moore, of course, have also sued in defense of HB2. Here, they’re opposed by the ACLU of North Carolina, which fought the state in court over marriage, too.

Most of the participants in the various legal dramas are playing parts they’ve played before. There are two exceptions, and both want to be the next governor.

Republican Gov. Pat McCrory and Attorney General Roy Cooper, a Democrat, appear to have the most tortured roles since Hamlet.

Cooper says he opposes both HB2 and the magistrate’s law. But his office continues to defend the state in the lawsuit against the latter. He has been named a defendant in the ACLU’s lawsuit against HB2, even though he says his office won’t defend the law in court. Two years ago, he stopped defending Amendment One after, he says, its demise became inevitable.

McCrory’s decision in his state’s culture wars also have been hard for some to follow. When Berger and Moore pressed on in their 2014 marriage fight, McCrory, an Amendment One supporter, said the state would comply with the court orders striking down the ban.

When the legislature passed SB2 last year, McCrory vetoed it.

And while he criticized Charlotte’s expansion of bathroom and other LGBT rights, he opposed the calling of a special legislative session to roll back the city’s move. Nevertheless, he signed HB2 into law and has become perhaps its strongest defender.

Given all their twists and turns on such divisive issues, the gubernatorial candidates may now be faced with their toughest task. Lawyers argue only before a judge. McCrory and Cooper must make their case to the voters.

Michael Gordon: 704-358-5095, @MikeGordonOBS

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