House Bill 2 has already cost Charlotte one NBA All-Star Game. Now an expected full-court legal fight over the law puts the city’s chances of hosting the 2019 event in serious jeopardy, too.
Legal experts say battles to overturn the law could still be crawling through the courts two years from now, when the NBA could face another decision on whether to find an alternative venue to Charlotte.
“Given the current political situation, I just can’t see the General Assembly doing anything about it,” said Brian Clarke, a faculty member of the Charlotte School of Law. “A final resolution in the courts is at least two years out. That’s cutting it pretty close.”
On Thursday, NBA Commissioner Adam Silver formally announced that the Charlotte Hornets and the city had lost the 2017 event – and up to $100 million in economic benefits – because of the state’s refusal to amend or repeal HB2. The law withholds legal protections from LGBT individuals and bans transgender people from using bathrooms and other public facilities that match their gender identities.
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As a consolation prize, the NBA tentatively penned Charlotte’s name next to the 2019 All-Star Game – if the league’s concerns about HB2 have been resolved.
“We have had genuine dialogue with the NBA, and they would like nothing more than to return the game to Charlotte,” Hornets’ marketing officer Peter Guelli said Friday.
As for the uncertainty still posed by HB2, Guelli said the NBA team remains hopeful. “We consider ourselves stewards of Time Warner Cable Arena. Anytime there is a chance that an event with this type of economic impact is available for Charlotte, we feel an obligation to pursue it,” he said.
That optimism may prove ephemeral. State leaders have displayed stiffening resistance to the notion of repealing or changing the law – despite pressure from the NBA, the Atlantic Coast Conference and other athletic, corporate and entertainment groups.
Gov. Pat McCrory, who’s locked in a bitter re-election fight with Attorney General Roy Cooper, has made the defense of HB2 a major part of his campaign. The Charlotte Republican has already sued the federal government for threatening to withhold hundreds of millions of school and transportation dollars unless the state repeals the law. And after Silver’s announcement, McCrory launched a scathing attack on so-called “selective corporate elite” attempting to undermine the state’s right to govern itself.
State Senate President Phil Berger followed suit.
“The suggestion that state leaders should abandon our moral obligation to protect our constituents in order to keep one exhibition basketball game is absurd,” he said in a statement.
That appears to leave the fate of the law – along with Charlotte’s chances of hosting an NBA All-Star Game this decade – in the hands of the courts.
Given the pace of justice and the likelihood of appeals along the way, legal experts said Friday that a final resolution might not be reached until late 2018 or early 2019. At best, that would take place months after the NBA will be expected to choose a 2019 host city.
NBA spokesman Mike Bass could not be reached for comment on Friday.
At least five lawsuits have been filed in federal court over HB2 since its passage in March.
On Aug. 1, U.S. District Judge Thomas Schroeder of Winston-Salem will hear arguments on whether the law should be suspended pending the outcome of the trial of one of the complaints. Both the American Civil Liberties Union and the U.S. Justice Department, which have sued the state separately over HB2, have asked for preliminary injunctions.
Schroeder’s ruling on the injunction is likely to draw an appeal from the losing side, said Campbell University Law professor Greg Wallace.
Schroeder met Friday with lawyers on both sides of the ACLU complaint. According to court documents, the judge hopes to open trial on the suit in either late October or early November. His ruling is expected by the spring or summer of 2017.
Again, an appeal to the 4th U.S. Circuit Court of Appeals is all but a given, Wallace and Clarke said. A ruling from the Richmond, Va., court could push the case into late 2017 or early 2018.
If the legal fight continues to the U.S. Supreme Court, the justices must first decide to hear the case. If they do, oral arguments would likely take place in late 2018, with a ruling to come in the following year.
UNC-Chapel Hill law professor Maxine Eichner, an expert in LGBT issues, said either side could choose to drop the case once the eventual outcome becomes clear.
That, however, would run counter to the legal strategy state GOP legislative leaders used in the 2014 fight over same-sex marriage. Then, Berger and House Speaker Thom Tillis, now a U.S. senator, continued to appeal a series of federal court rulings – spending thousands of dollars along the way – after experts say the outcome of the case was no longer in question.
On the issue of bathroom access, a 4th Circuit panel of judges already has upheld the federal government’s position that requiring transgender students to use separate bathrooms is unconstitutional.
If Berger and other state leaders accept the decisions of a lower court, the fight over HB2 could end well within the NBA’s two-year window, Eichner said. “It all depends on whether the state will draw this out to the bitter end.”
Chris Brook, legal director for the state chapter of the ACLU, said his clients are prepared to fight as long as necessary.
“The ball remains in the legislature’s and Gov. McCrory’s court,” he said. “They have a simple solution here. ... They could come back tomorrow and repeal HB2.”
But he added: “I don’t expect that to happen.”