In My Words: The constitutionality of HB2 revisited
Elon University School of Law faculty members Scott Gaylord and Tom Molony wrote for several regional newspapers about the way the controversial law known as HB2 might be upheld in North Carolina, and why the debate over such laws should continue regardless.
Versions of the following column were featured recently in the (Raleigh, N.C.) News & Observer, the (Greensboro, N.C.) News & Record, the Winston-Salem Journal and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate. Views are those of the authors and not Elon University.
The constitutionality of HB2’s nondiscrimination provision
By Scott W. Gaylord and Thomas J. Molony
The controversy surrounding North Carolina’s HB 2 continues.
Just last month, the Fourth Circuit Court of Appeals held that a transgender student has a statutory right to use the bathroom associated with the student’s gender identity. That ruling, however, was based exclusively on a federal statute known as Title IX and, therefore, has no bearing on the constitutional claims in a pending ACLU lawsuit, which alleges, among other things, that HB 2’s non-discrimination provisions violate a lesbian couple’s equal protection rights by precluding them from pursuing a discrimination claim against a Charlotte fertility clinic.
Still, some have suggested that, under the United States Supreme Court’s 1996 decision in “Romer v. Evans,” the federal courts will have little trouble striking down HB 2’s non-discrimination provisions on equal protection grounds. When analyzed carefully, though, these provisions are apt to be upheld under the Court’s current equal protection jurisprudence.
In “Romer,” the Supreme Court acknowledged that most laws classify in one way or another, “with resulting disadvantage to various groups or persons.” Consequently, the fact that HB 2 classifies or “discriminates,” as critics contend, is not enough to invalidate the law.
In fact, HB 2 affirmatively bars discrimination, namely discrimination based on race, religion, color, national origin, and biological sex. In limiting its scope to these characteristics, the legislation omits numerous others, including sexual orientation, gender identity, military service, parenthood, and political affiliation.
Thus, if deciding not to favor a particular group constitutes discrimination, then HB 2 discriminates. But so do most other laws, including the Charlotte ordinance that gave rise to HB 2.
Of course, those challenging HB 2 liken it to the Colorado constitutional amendment at issue in “Romer,” which the Supreme Court found to sanction an invidious form of discrimination by targeting those in the LGBT community. This claim, however, falls short of an equal protection violation for at least two reasons.
First, HB 2’s non-discrimination provisions do not discriminate against any particular group. Indeed, unlike the amendment in “Romer,” these provisions do not impose unique disadvantages on lesbian, gay, bisexual, and transgender individuals or anyone else. They simply do not extend special protections to a wide range of groups, the vast majority of which are not protected classes under the Court’s equal protection jurisprudence.
In declining to include all possible classes of people, HB 2 is similar to lots of laws, including the Charlotte ordinance. Some have characterized Charlotte’s ordinance as providing equal rights under the law to all of Charlotte’s residents. That’s just not true. Although Charlotte included classifications beyond those listed in HB 2 (extending special protection based on, among other things, sexual orientation and gender identity), Charlotte omitted and (HB 2’s critics would say) “discriminated” against individuals based on such things as military service, parenthood, and political affiliation.
Yet if all classes of people must receive special protection under state laws, then many (perhaps most) laws will be subject to constitutional challenge. But as “Romer” makes clear, the Constitution recognizes the “practical necessity” of classifying for “one purpose or another.”
Second, because HB 2 neither targets a suspect class nor burdens a fundamental right, it is constitutional “so long as it bears a rational relation to some legitimate end.” That is, in the words of “Romer,” a law will be upheld “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.”
Whether one likes or dislikes HB 2, it satisfies this deferential test as a measure to ensure uniformity across the state with regard to North Carolina’s public accommodations and employment laws.
The constitutional amendment in “Romer,” on the other hand, failed this test because of specific features not found in HB 2. Unlike HB 2, the amendment excluded “homosexual, lesbian or bisexual orientation” protection across the board, going so far as to prohibit protection from discrimination at “every level” of government. The effect of the amendment was to preserve access to state and local governments for those who wished to secure protection based on all classifications except homosexual, lesbian, and bisexual orientation. Protection for this lone disfavored group could be secured only through further constitutional amendment.
HB 2’s non-discrimination provisions do not mandate such differential treatment because they neither identify a single group by a single trait nor impose burdens on any of the groups identified. Although the law limits the ability of local governments to grant special protection, it permits all North Carolinians to seek change through the state legislative process.
That HB 2 is constitutional does not—and will not—resolve the ongoing policy debates in North Carolina and across the country. Through constructive discussion and debate, voters and their elected representatives will need to decide how to craft each state’s anti-discrimination laws to balance the rights of religious believers with the rights of others in society.
In our pluralistic society, achieving a reasonable balance is critical and will require thoughtful consideration and analysis, not threats and rhetorical flourishes that serve only to divide us.
Scott W. Gaylord is a professor of law and Thomas J. Molony is an associate professor of law at Elon University School of Law.
Elon University faculty with an interest in sharing their expertise with wider audiences are encouraged to contact the Office of University Communications should they like assistance with prospective newspaper op/ed submissions.