North Carolina Forbids LGBT Protection, Romer v. Evans, and the Future
By 1992 a number of cities in the State of Colorado (notably
Denver and Boulder) had enacted ordinances that prohibited discrimination based
on sexual orientation. This was at a
time when gay rights was only just beginning to gain acceptance in the
populace at large, and the backlash in Colorado to these ordinances was
swift. In 1992 the voters passed an
amendment to the Colorado Constitution that stated:
No
Protected Status Based on Homosexual, Lesbian or Bisexual Orientation.
Neither the State of Colorado, through any of its branches or departments, nor
any of its agencies, political subdivisions, municipalities or school
districts, shall enact, adopt or enforce any statute, regulation, ordinance or
policy whereby homosexual, lesbian or bisexual orientation, conduct, practices
or relationships shall constitute or otherwise be the basis of or entitle any
person or class of persons to have or claim any minority status, quota
preferences, protected status or claim of discrimination. This Section of the
Constitution shall be in all respects self-executing.
Justice Anthony Kennedy |
The amendment was promptly challenged in court and the issue
finally settled by the United States Supreme Court in a 6-3 decision entitled Romer
v. Evans, 517 U.S. 620 (1996). The Court, in an opinion by Justice Anthony
Kennedy (who has written the opinion in all of the Supreme Court’s major
decisions upholding the rights of gay citizens, most recently last year’s opinion
granting homosexuals the right to marry), struck down the Colorado
Constitutional Amendment as violating the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. Kennedy stated that there must be a “rational
basis” for denying any class of people their rights, which is particularly true
when stripping them of rights they had already gained. [There was dissent by Justice Antonin Scalia,
joined by Clarence Thomas and the then Chief Justice William Rehnquist.]
Now along comes the State of
North Carolina and does the same thing.
How did they think this was going to play out in the courts? Or, for that matter, in the court of public
opinion, where threats are being made to pull tournaments out of North Carolina
by the NFL and the NBA, major corporations are condemning the action, and
businesses say they will withdraw their riches from the state?
[Click to enlarge] |
The reason the state acted was that a number of municipalities in North Carolina had passed ordinances forbidding discrimination based on sexual orientation. However Charlotte, the largest city in the state, didn’t enact one until February 22nd of this year, and Charlotte’s ordinance added to the usual list a protection against discrimination based on sexual identity in the use of public restrooms (thus allowing a transgender person to use the bathroom he/she identified with even though it was not the biological sex of birth).
Many citizens were outraged at
idea of “men in women’s bathrooms”
and this “bathroom panic” was the
leading reason North Carolina’s Governor Pat McCrory promised immediate
legislative action. The North Carolina
Legislature backed him up in a special session by quickly passing House
Bill 2, which did a number of things: forbade the use of public single-sex
bathrooms in the state from being used except by someone whose birth
certificate was identical to the sex assigned to the bathroom, wiped out all
protection against discrimination based on sexual orientation in municipal
ordinances, and forbade municipalities from enacting minimum wage laws or other
employee protections at variance with the state law on point. The new law can be found at http://ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf,
and it’s a dilly to read.
Of course the legislators were aware of Romer v. Evans, so the new law striking down local ordinances doesn’t
mention gay rights at all. Instead it
simply declares that uniformity in discrimination
laws is an important matter for the state so that any ordinances that give
greater protection than state law currently does are annulled. Ah—you see?—it’s not that gays shouldn’t be
protected, it’s that if that’s going to be done it has to be done on a state level. Alas, North Carolina, like most states, has no state law protecting
gays from discrimination.
Now what? Well there was an immediate lawsuit filed by
a group of liberal organizations [the ACLU, Lambda Legal, Equality North
Carolina, etc.] challenging the constitutionality of House Bill 2, and Romer is the 500 lb sledgehammer for this
attack.
Will the suit succeed? Oh, yes.
It will.
How can I be so sure? Well, the current makeup of the Court is four
liberals, three conservatives, and Justice Kennedy (the swing vote). Scalia’s death knocked out a sure
conservative vote, and the new president will have to replace him. Obama is already trying to do this, but
unlikely to succeed. If, as seems probable,
Hilary Clinton is the new president, a liberal will be added to the Court, and
House Bill 2 will be a forgotten failure.
But even if the new president is Ted Cruz the same result will obtain:
Kennedy and the four liberals will cite to his opinion in Romer and the four conservatives will futilely file their homophobic
dissents.
What is the justice in all
this? Well, let’s start with LGB (minus
the T) people. It’s getting harder and
harder to make any sort of argument that its all right to fire people, deny
them service, refuse to sell or rent them homes, etc. simply because they are
gay or lesbian. The new issue is whether
religious freedom allows such actions, and that one has still to be settled. But that religious argument is
an exception to general protection,
not a reason for the sort of blanket denial that North Carolina has just
decreed.
[Click to enlarge] |
As for transsexuals and transgender people—human beings whose gender identity is at odds with their biology—that is a new battle, now being contested throughout the country. Trans people have compelling stories, stories that the general public is just now hearing, stories that can break the heart of any caring person. This gender confusion frequently starts at birth. One mother recalls her three year old “son” who happily told her “I’m a girl, Mama.” Dealing with the trick nature has played here is hard enough without laws making it into a nightmare.
As for the bathroom panic thing,
relax, America. Incidents of trans
people sexually misbehaving in public bathrooms are nonexistent. What some people are really afraid of is STRAIGHT men taking advantage of a law like
Charlotte’s to disguise themselves as a woman and cause mayhem in a female
bathroom. I suspect the chances of that too
are small—how many men who are truly straight could convincingly dress
up as a woman and then believe themselves sexy to women they'd proposition in a restroom?
In any event, the potential problem isn’t with trans
people, but with straights misbehaving, so, what the hell, make that a crime.
Another difficulty with House
Bill 2 is that none of us carry our birth certificates with us into
bathrooms. Who is going to police this
law? And, as trans people have been
gleefully pointing out on Facebook and elsewhere, Governor McCrory (who is up
for an interesting reelection contest this year) is going to have to make his
wife share public bathrooms the following “birth certificate women”:
And the Governor gets to pee next
to this "birth certificate man":
North Carolina has made a fool of itself in its panicked adoption of this embarrassing new law, and will pay the penalty in lost lawsuits, lost business, and lost reputation, while wearing a black stain as a bastion for bigotry.
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Related Posts:
A Guide to the Best of My Blog,” April
29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html
“How To Cure Homophobia,” July 30, 2016; http://douglaswhaley.blogspot.com/2015/07/how-to-cure-homophobia.html
“How
To Change Gay People Into Straight People,” September
20, 2010;
http://douglaswhaley.blogspot.com/2010/09/how-to-change-gay-people-into-straight.html
http://douglaswhaley.blogspot.com/2010/09/how-to-change-gay-people-into-straight.html
“A Homophobic Organization Throws in the Towel: Goodbye to Exodus International,” June 21, 2013; http://douglaswhaley.blogspot.com/2013/06/a-homophobic-organization-throws-in.html
“Disowning Your Gay Children,” October 9, 2013, http://douglaswhaley.blogspot.com/2013/10/disowning-your-gay-children.html
“Are Gays Really Just 1.6% of the U.S. Population?” July 26, 2014; http://douglaswhaley.blogspot.com/2014/07/are-gays-really-just-16-of-us-population.html
“Does the Bible Condemn Homosexuality and Gay
Marriage?” June 29, 2014; http://douglaswhaley.blogspot.com/2014/06/does-bible-condemn-homosexuality-and.html
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