House Bill 2 is bad law because it allows the government to discriminate against vulnerable populations in ways that are morally wrong, constitutionally incurable, and contrary to our collective self-interest.
Fair treatment and equal protection are among our most fundamental values. Discrimination by the government can be both moral and legal, but only if it is necessary to achieve an important communal goal. And at least the law requires that claims of necessity be supported by a strong body of persuasive facts.
For example, if it existed, evidence that it is unsafe to open girls’ bathrooms to the subset of boys who identify as girls would be useful. In contrast, evidence that doing this makes us merely uncomfortable is not. That’s because in general, although comfort is no small thing, we tend to value it less than we value rights. And so as it should, whether it is by lack of enforcement by the executive, repeal by the legislature, or rejection by the judiciary, HB2 will not survive.
In the meantime, HB2 will have been useful as a teaching tool. The government’s authority to discriminate is quite limited because it represents all of us who are all at least formally equal in its eyes.
However, individuals who are not government actors are much freer to decide who they will associate with. Wedding cakes and championships are the same in this respect. You can choose not to sell me a cake for my wedding because you are against gay marriage, and I don’t have to give you the business opportunities associated with my athletic competitions because I am against bigotry. Both are ways for us to be ourselves and to express our personal values. But of course they are also ways to signal our respective disapproval. To the extent that we are hurt by others’ disapproval, we are forced continually to evaluate at least whether the particular ways we’ve chosen to express our beliefs are necessary.
As we evaluate the necessity of our discriminatory choices, we must always keep in mind that the flip side of the coin that features individual liberty is individual difference. At least in theory, every American can say: I can be who I am – even though I am different from others because I am free. I am free and equal even though I am religious or not, straight or not, white or not, gender conforming or not, and so on. We are all invested in this proposition because we are not all the same.
We can and do impose homogeneity at home, but when we step outside and go into the world we all need to tolerate difference. Cultivating tolerance as an individual value and then as a societal norm is part of the price of liberty in a heterogeneous society. Of course there are boundaries to what we need to tolerate to succeed and thrive as a community. Our liberty is properly “ordered” in this respect. Finally, individual instances of tolerance are not the same thing as support.
Rather, they are a form of currency: When you sell me a cake, you are not saying you approve of gay marriage, and when I buy one from you I am not saying that I approve of your religious beliefs. Rather, you sell to me and I buy from you so that we can go about our respective lives.
What we are supporting in the transaction is the maintenance of a community of individuals who are at least in agreement about liberty.
Doriane Lambelet Coleman is a law professor at Duke Law School.