Elon University School of Law Associate Professor Enrique Armijo penned a column for North Carolina's largest newspapers in which he argues that state lawmakers passed an unconstitutional law this spring by limiting the rights of local towns and counties to create nondiscrimination ordinances.
The following column appeared recently in the (Raleigh, N.C.) News & Observer, the Charlotte Observer, the (Greensboro, N.C.) News & Record, the Fayetteville Observer and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate. Armijo also appeared on WGHP Fox 8 speaking about HB2. Views are those of the author and not Elon University.
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An open-and-shut case against HB2
By Enrique Armijo – earmijo@elon.edu
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 homosexual and bisexual citizens 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 initiative was short lived. In the subsequent lawsuit of Romer v. Evans, the U.S. Supreme Court 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 anniversary this May, but so far as the majority of the North Carolina General Assembly 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 citizens.
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.
HB2’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 U.S. Supreme Court Justice Antonin Scalia—a jurist that many of HB2’s supporters surely admired—might say, applesauce.
HB2 was written by the General Assembly 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 General Assembly 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. This column first appeared in Raleigh’s News & Observer.
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