A law professor explains why N.C.’s new discrimination statute is unconstitutional

Protesters chant in Chapel Hill on Tuesday to protest HB 2.
Protesters chant in Chapel Hill on Tuesday to protest HB 2. AP

In 1992, Colorado adopted a statewide solution to what it viewed as a local problem: Cities, towns and counties were amending their discrimination ordinances to protect homosexuals and other LGBT residents within their borders. Colorado voters responded by approving an initiative that amended the Colorado Constitution to deprive any political subdivision of the power to use its law to protect gays, lesbians and bisexuals.

The U.S. Supreme Court, in a decision called Romer v. Evans, found that Colorado’s constitutional amendment violated the rights of gay Coloradans under the U.S. Constitution’s Equal Protection Clause. The amendment, stated the court, deprived one “politically unpopular group” – gays and lesbians in Colorado – from exercising their rights to persuade their local governments for the protections that other groups in those cities already enjoyed. There was no explanation for such a deprivation of rights, said the court, other than “animosity toward the class of persons affected.”

The Romer decision celebrates its 20th birthday this May, but so far as the majority of the North Carolina legislature and Gov. Pat McCrory are concerned, it is as if the decision had never been reached at all. Just as Colorado did more than two decades ago, North Carolina lawmakers have taken away what Charlotte saw fit to give: equal rights under the law to all of its residents. And because no other city or town can now do what Charlotte tried to do, now no gay or transgendered person, or any advocate for that person, can make the case to his or her town council or county commission that what the law should view as right can change.

House Bill 2’s defenders will argue that, unlike the Colorado constitutional amendment in Romer, which singled out city ordinances that sought to protect homosexuals from discrimination, HB2 does no such singling. Instead, the North Carolina law establishes a floor for local nondiscrimination ordinances throughout the state with respect to all the groups of people it protects. No federal judge in the United States would take this contention seriously. It is, as the recently departed Justice Antonin Scalia – a jurist that many of HB2’s supporters surely admired – might say, applesauce.

HB2 was written by the legislature and signed by the governor, in an “emergency session,” in response to one thing: a law passed in Charlotte that protected LGBT people in that city from discrimination in public housing and employment. McCrory can defend his signing of the law by talking about privacy in locker rooms as much as he likes; HB2 is a direct and unmistakable legislative response to Charlotte’s expansion of existing rights to gay, lesbian and transgendered people in that city. When the government deprives one group of people of rights that others enjoy – here, the right to lobby local lawmakers for legal protection from discrimination – the government violates the Constitution’s Equal Protection Clause.

On that point, the teachings of Romer are clear. And now that HB2 has been challenged in court, the federal district court in Greensboro will surely agree and enjoin the law from going into effect.

Our legislature has promulgated, and our governor has signed, a facially unconstitutional law that has zero prospect of ever being enforced; is specifically directed at a minority group that has suffered direct discrimination in our state; and takes power away from cities to remedy that harm. So much for local control.

If North Carolina’s voters believe this disenfranchisement-by-statute is a proper exercise of legislative power, then the law’s supporters will reward McCrory come November. I’m no politician. But I have my doubts.

Enrique Armijo teaches Constitutional Law at Elon University School of Law in Greensboro. He can be reached at earmijo@elon.edu.