Re: The Charlotte City Ordinance and Religious Freedom

[Greg Lipper]

At the risk of repeating myself: The bathroom issue isn’t the main reason why 
the NC statute is unconstitutional. The main reason is that the NC statute 
affirmatively prohibits all local governments from enacting any 
anti-discrimination protections for LGBT individuals; it’s unconstitutional for 
the same reason that the ordinance at issue in Romer was unconstitutional.

That’s why I presented the hypos that I did; I’ll reproduce them below. You’d 
agree that both of these hypothetical state laws would be unconstitutional, yes?

1. It’s 1963, and Charlotte has passed a law prohibiting employers and public 
accommodations from discriminating on the basis of race. North Carolina, 
responding to pressure from organizations with religious objections to the 
mixing of the races, passes a law wiping away the Charlotte race-discrimination 
law and prohibiting any local entities from barring race discrimination in 
employment or public accommodations.

2. It’s 1963, and Charlotte’s civil-rights activists are urging the city to 
pass a law prohibiting employers and public accommodations from discriminating 
on the basis of race. North Carolina, responding to pressure from organizations 
with religious objections to the mixing of the races, and seeking to ensure 
that African-Americans do not obtain any civil-rights protections at the local 
level, passes a law prohibiting religious discrimination and expressly 
prohibiting local entities from barring any other category of discrimination, 
including discrimination on the basis of race.







On Apr 1, 2016, at 10:14 PM, Will Esser 
> wrote:

Greg,

I'm having a hard time understanding the equal protection argument.  Under the 
law, everybody gets to use a bathroom / shower / locker room.  The facilities 
are equal (each has essentially the same equipment, putting urinals aside).

The only question is who else will be in the bathroom / shower / locker room at 
the same time.

Are you saying that there is a fundamental constitutional right to use a 
specific bathroom / shower / locker room based on the sex with which a person 
identifies at a certain point in time (keeping in mind that such identification 
is said to evolve over time)? Or are you saying that the privacy concerns that 
Eugene points out (including the religiously motivated privacy concerns) are 
not real and legitimate concerns?

Will

Will Esser



From: Greg Lipper >
To: Will Esser >
Cc: Law & Religion issues for Law Academics 
>
Sent: Friday, April 1, 2016 5:27 PM
Subject: Re: The Charlotte City Ordinance and Religious Freedom

Yes, when the state is singling out a disfavored group and acting to prevent 
them from obtaining local protection – or stripping away existing protection – 
then that is an equal-protection violation. The NC legislation went out of its 
way to explicitly preempt local discrimination ordinances, even as it took 
steps to preserve local authority in other areas addressed by the law (for 
instance, it preserved certain local wage authority in the minimum-wage portion 
of the law). Nothing, as I understand it, prevented the legislature from saying 
(1) here are the categories that we protect, but that (2) nothing prevents 
local jurisdictions from protecting additional groups.

Let me tweak my race-discrimination hypo for a moment:

It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a 
law prohibiting employers and public accommodations from discriminating on the 
basis of race. North Carolina, responding to pressure from organizations with 
religious objections to the mixing of the races, and seeking to ensure that 
African-Americans do not obtain any civil-rights protections at the local 
level, passes a law prohibiting religious discrimination and expressly 
prohibiting local entities from barring any other category of discrimination, 
including discrimination on the basis of race.

Constitutional?




On Apr 1, 2016, at 5:07 PM, Will Esser 
> wrote:

I don't think that was overlooked at all.  In fact, Prof. Wallace specifically 
addressed that point when he talked about the fact that local NC municipalities 
have no power or authority of any kind other than what is expressly granted to 
them by the state (i.e. the "Dillon Rule").  That is simply how towns and 
cities are established in NC.  By contrast, it appears the Dillon Rule is only 
followed for certain municipalities in Colorado (presumably not those involved 
in Romer since that case involved a constitutional amendment).  This cite 
provides information on each state: 

Additional Equal Protection Argument & Local Government Law Clarifications (Charlotte Ordinance/NC Law)

[James Oleske]

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
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