Greg, At my instigation, we've moved far afield from Law & Religion issues into State & Local Government issues, so I'll keep this response brief. Although there is clearly a state policy in North Carolina against the *state legislature* creating a patchwork of local laws, I do not read *Williams* suggesting as state policy against *cities and counties* passing ordinances that result in such a patchwork. *Williams *recognizes that one of the purposes of the constitutional prohibition on the legislature passing local laws was "to strengthen local self-government by providing for the delegation of local matters by general laws to local authorities." And, of course, delegating by general laws to localities will inevitably result in a patchwork of different local laws. That's precisely what happened with public accommodations ordinances in North Carolina pursuant to the general delegations in 153A-121 and 160A-174, and I raised those provisions because I (mis?)read your initial post as implying that localities might not have had the authority to pass public accommodations ordinances pre-HB2. What *King *described as the "broad" delegations in 153-121 and 160A-174 seem clearly to me to include the power to pass such ordinances.
On the vulnerability of HB 2 to equal protection challenge, I appreciate Will's efforts to distinguish *Romer*, but I am not convinced that applying the principles underlying that case to HB 2 is a "stretch." - Jim On Mon, Apr 4, 2016 at 3:18 PM, Wallace, E. Gregory <walla...@campbell.edu> wrote: > Jim, > > The reason the NC Supreme Court in *Williams v. BCBS *held the law at > issue unconstitutional was that the state legislature, at the behest of > local officials, had passed enabling legislation that authorized Orange > County to adopt the employment discrimination law under which the plaintiff > sued BCBS. That state legislation, the court held, was a “local act” > regulating labor or trade—something the NC Constitution specifically > prohibits in Art. II § 24(1)(j). The only way the state legislature could > address employment discrimination by state statute, the court said, was > either enact a statewide law applicable to employers and their employees > regardless where they reside within the state or enact a general law that > treats a locality or region differently based on reasonable differences of > circumstances. The local officials’ last gasp was to argue that, even if > the state enabling legislation was unconstitutional, they had inherent > authority to enact such legislation under the two statutes you quoted. The > court decided that question on a narrow ground: by creating a private cause > of action, the locality had gone “far beyond” merely requiring a higher > standard of conduct or condition. The court did not express any opinion as > to whether a NC locality has inherent authority to adopt such a > nondiscrimination ordinance or add additional protected classes beyond > state law. > > There has been a long-standing dispute between the state and local > governments regarding whether localities have the power to pass certain > ordinances under NCGS §§ 153A-121 and 160A-174. The most recent NC Supreme > Court decision on this matter, *King v. Town of Chapel Hill *[Go Heels!], > specifically stated that “[l]ocal ordinances must, however, be in harmony > with State law; whenever the two come in conflict, the former must bow to > the latter” and “[t]his need to avoid dual regulation is generally referred > to as preemption.” The court went on to examine whether Chapel Hill’s > prohibition on mobile phone use while driving was preempted by state law > and concluded that it was. > > Of course, the issue with HB2 is not whether Charlotte had inherent > authority to adopt the ordinance—a matter that was hotly disputed in the > run up to the city’s decision—but whether HB2 is constitutional. I > referenced the *Williams *case not to question whether Charlotte was > empowered to adopt this law in the first instance, but for the NC Supreme > Court’s recognition in 2003 that the NC Constitution’s prohibition on local > acts suggests a state policy against a patchwork of local nondiscrimination > laws—something that HB2 specifically cites as justification for the law. > > You are correct that nothing in the prohibition on local acts would have > precluded the legislature from passing a narrower bill limited to statewide > restroom use, but that does not make HB2 necessarily unconstitutional. For > the reasons Will explained, it seems a stretch to apply apply *Romer * > here. > > Greg Wallace > Campbell Law School > > From: James Oleske <jole...@lclark.edu> > Reply-To: Law & Religion issues for Law Academics < > religionlaw@lists.ucla.edu> > Date: Saturday, April 2, 2016 at 11:53 AM > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Subject: Additional Equal Protection Argument & Local Government Law > Clarifications (Charlotte Ordinance/NC Law) > > A few thoughts on some of the comments made in yesterday's discussion > between Greg Lipper and Greg Wallace. > > Greg L. wrote: “Starting on a clean slate and defeating an amendment to > add a particular protected category [to a statewide antidiscrimination law] > doesn’t seem suspect by itself. But adopting legislation that is designed > to affirmatively remove the possibility of local antidiscrimination > protections for all LGBT people … is quite a different story.” > > I agree that what happened in North Carolina last week is far more suspect > under the Court's current equal protection jurisprudence than the situation > of a state legislature declining to amend a statewide nondiscrimination law > to add a particular protected category. But I do think the latter situation > can raise equal protection issues, and I have recently developed the > argument - some would say “radical” argument - that states deny equal > protection when they fail to protect against sexual-orientation > discrimination in laws that broadly protect against other types of > invidious discrimination (ssrn.com/abstract=2589743) (apologies to those > who are also on the conlaw list for the duplicate plug). > > Greg W. wrote: "The NC state legislature has never delegated to cities > generally, or to Charlotte specifically, express authority to adopt public > accommodations ordinances. Local ordinances must be in harmony with state > law; whenever the two conflict, local law must give way." > > I'm neither an expert in local government law generally nor North Carolina > law in particular, but the above passage left me with a different initial > impression than the one I had after reading the 2003 NC Supreme Court > decision Greg brought to our attention and the underlying statutory > provisions discussed at the end of that opinion. > > North Carolina law gives cities and counties the power to enact ordinances > that "define, regulate, prohibit, or abate acts, omissions, or conditions > detrimental to the health, safety, or welfare of its citizens and the peace > and dignity of the county." See NCGSA 153A–121(a) & 160A-174(a). North > Carolina law also provides that "[t]he fact that a State or federal law, > standing alone, makes a given act, omission, or condition unlawful shall > not preclude city ordinances requiring a higher standard of conduct or > condition." 160A-174(b). > > The reason the court in the 2003 case rejected Orange County's defense of > its employment discrimination ordinance under those statutory provisions > was not because the county had included protected categories broader than > those in state law, but rather, because its ordinance gave citizens > subpoena power and private rights of action "even in the absence of a > finding of cause" by county officials. The Court found that "[s]uch a new > and independent framework for litigation substantially exceeds the leeway > permitted to individual counties by these statutes." But the Court never > questioned the ability of cities and counties under the general enabling > legislation quoted above to pass nondiscrimination ordinances or to > "requir[e] a higher standard of conduct” in those ordinances. And, as > evidenced in both Orange County and the City of Charlotte, local > governments in North Carolina had been doing so long before Charlotte > amended its ordinance this February (in the 2003 case, the court was > careful to point out that its decision only concerned the employment > discrimination provisions in the Orange County ordinance and did not > concern its public accommodation or housing provisions). > > Greg W. also wrote that “[b]ecause of NC Constitution’s prohibition on > [the legislature passing] local acts that regulate labor or trade (Art. II, > §24(1)(j)), the NC legislature could not, as some have suggested, pass a > law that simply overruled the Charlotte ordinance.” > > Perhaps some have suggested that the NC legislature should have passed a > Charlotte-specific law, but I don't think that is the main thrust of the > overbreadth criticism. The principal overbreadth argument is that if the > legislature was concerned about restrooms, it should have passed a law > about restrooms, not a law stripping all LGBT protections in local > ordinances. Nothing in the constitutional provision Greg W. cites would > seem to have precluded the legislature from passing a bill limited to the > issue of restroom use statewide. > > - Jim > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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