Thanks to the ACLU and Lambda Legal, North Carolina has a ripe opportunity to atone for its shameful treatment of gay, lesbian, bisexual and transgender Tar Heels. The groups filed a federal lawsuit challenging House Bill 142, legislation which was falsely called a repeal of the now notorious anti-LGBT law HB2. Gov. Roy Cooper, Attorney General Josh Stein and legislative leaders should decline to defend HB142’s constitutionality and restore LGBT residents’ political rights.
Like HB2, the faux repeal bill blocks local governments from enacting laws banning discrimination against any class of people not protected under state law for (at least) four years. HB142 mirrors HB2 in its aim to choke off LGBT North Carolinians’ access to the political process. The intent behind HB2 merely transferred to HB142 but with an added time limit – it is an unconstitutional attempt to harm an unpopular minority.
In North Carolina, there are no express protections barring discrimination in housing, employment or public accommodations on the basis of their sexual orientation or gender identity. The LGBT community has made significant strides to combat the harms of discrimination by securing municipal anti-discrimination laws in discrete jurisdictions. Indeed, it took some 25 years for LGBT rights activists to secure robust protections in Charlotte. Leaders in Durham, Greensboro, and Raleigh have expressed interest in taking up protections for LGBT persons like Charlotte. While an individual’s right to enjoy full, equal citizenship should not depend on their zip code, municipal protections signify real progress toward achieving robust statewide civil rights protections. Under HB142, these local efforts were shamefully snuffed out.
The purpose of municipalities is to guarantee that government is responsive to the needs and interests of residents with solutions that reflect local values and local problems. Equally important, municipal governments reduce the cost of political participation and allow constituencies that hold little power on a statewide level to wield considerable influence over local affairs. This is exactly why decisions about the delegation of local lawmaking powers must not be treated cavalierly – especially when those decisions restructure local governments’ legislative power in way that burdens an unpopular minority group.
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While the function to address local needs with local solutions is important, cities and towns remain subject to the constraints imposed by state legislators and the electorate, whom can reign in local governments deemed rogue. State governments have wide latitude to determine what powers rest in localities. However, states cannot restructure local governments with the purpose of isolating disfavored groups from achieving policies that benefit them.
Two landmark Supreme Court rulings are instructive. In 1964, the Akron City Council enacted a fair housing ordinance to “assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.” The ordinance provided for a city Commission on Equal Opportunity in Housing to investigate housing discrimination and take action against persons violating the nondiscrimination law.
After the ordinance was adopted, voters amended the city charter to void the fair housing ordinance and required popular approval of any future housing law. In Hunter v. Erickson, the Supreme Court held the charter amendment was unconstitutional, noting that the Constitution does not allow for the diminution of political power in the political process against a minority group.
Before 1992, a number of Colorado municipalities, including the cities of Aspen, Boulder and Denver, enacted ordinances banning LGBT discrimination in housing, employment, education, public accommodations and health care services. Colorado voters responded by amending the state constitution to prohibit localities from adopting ordinances that expanded civil rights protections on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
The Supreme Court in Romer v. Evans struck down the state constitutional amendment on equal protection grounds because the newly adopted amendment placed non-heterosexuals “by state decree ... in a solitary class with respect to transactions and relations in both the private and governmental spheres” because it walled off LGBT persons “but no others, specific legal protection from the injuries caused by discrimination.” That is exactly what HB142 does.
The General Assembly’s woefully inadequate response to the national clamor calling for HB2’s repeal was legislation that still smacks of 1990s-era mentality. There is no legitimate government purpose to preempt municipalities’ power to protect civil rights. There is little chance that HB142 will survive judicial scrutiny. North Carolina’s leaders must not drag the state and her most vulnerable people through any more painful drama. They should concede HB142 is constitutionally deficient.
Anthony Michael Kreis is a law professor at Illinois Institute of Technology’s Chicago-Kent College of Law where he specializes in LGBT civil rights.