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 <willes...@yahoo.com<mailto:willes...@yahoo.com>> 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: http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority<http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority> So, since local municipalities have no life or power on their own and the NC legislature decides to make it expressly clear that they have no life or power on their own in a certain area, then your argument seems to imply that the NC legislature cannot constitutionally remove that power once the local municipality has acted to pass a certain non-discrimination provision. If that is not your position, then I hope you will clarify. Because I certainly understand that the NC legislative bill affirmatively bars local municipalities from passing non-discrimination laws which are broader than the state bill. The point is that is how the Dillon Rule works. Will Esser ________________________________ From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 4:54 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom No, I’m talking the difference between (1) deciding whom to protect and not protect, and (2) affirmatively barring local entities from protecting those groups – the latter is what’s happening in NC, and it continues to be overlooked in Professor Wallace’s and Will’s hypotheticals. The timing simply makes the context even clearer. On Apr 1, 2016, at 4:49 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Greg, So if the NC legislature passes the antidiscrimination law a week before the Charlotte City Council takes up the proposed Charlotte ordinance, the NC bill is constitutional (since you agree that "NC can pass whatever antidiscrimination law it likes?") But since the NC legislature passed the antidiscrimination law after the Charlotte City Council passed the ordinance (but before that ordinance became law), that makes the NC legislature's bill unconstitutional? That seems to play right into Prof. Wallace's point about empowering a single locality in NC to forever bind the NC General Assembly if the locality acted first. Will Esser ________________________________ From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 4:12 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom That’s not what I’m saying at all. NC can pass whatever antidiscrimination law it likes, but it went out of its way to preempt local antidiscrimination protections. (The latter situation is also what happened in Romer.) Let me end with the following analogy: 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. Are you saying that NC state law would be constitutional? On Apr 1, 2016, at 4:06 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Nice quote about the dog. So, what your saying is that the US Constitution empowers a single locality in NC to bind the NC General Assembly from passing a statewide nondiscrimination law if it’s inconsistent with what that locality has adopted? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:56 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom Starting on a clean slate and defeating an amendment to add a particular protected category doesn’t seem suspect by itself. But adopting legislation that is designed to affirmatively removes the possibility of local antidiscrimination protections for all LGBT people (and as Doug and others have pointed out at length, the NC law does far more than revoke transgender people’s access to the restroom that is consistent with their gender) is quite a different story. I don’t think you can say it’s merely “not given [LGBT] persons everything they want” – it’s revoking existing local protections, and taking away the ability to obtain those local protections in the future. I hate to point out the obvious, but “[e]ven a dog knows the difference between being kicked and being stumbled over.” On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: You assume that not giving transgender persons everything they want impermissibly targets them because of the bare desire to harm. But that goes back to the earlier questions in my post. If the NC legislature, because of privacy and safety concerns, wants preempt local ordinances granting transgender persons access to the bathrooms of their choice, why is that necessarily “targeting” motivated by animus rather than a permissible balancing of conflicting privacy interests? Suppose SOGI is not included in a state's nondiscrimination laws. During the legislative session, a proposed amendment to include SOGI is introduced, but fails. Has the legislature “targeted” a discrete group in violation of Romer? What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. Same result? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:21 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom It seems rather clear from all of the surrounding circumstances that the NC law did in fact target a discrete group, and did so for the purpose of abrogating specific local anti-discrimination laws protecting members of those groups. Courts will not have to pretend otherwise. On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Unlike Romer, NC law does not specifically target any discrete group, unless it targets by omission. If so, then it still has not targeted a omitted single group but rather several omitted groups. Also, under NC law, any nondiscrimination law passed by the state legislature will necessarily bind local governments from adopting laws inconsistent with it. So we’re back to the question of whether the Constitution requires that NC include SOGI in any nondiscrimination law it passes. If so, what other protected classes also must be included? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:59 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom I don’t have time to respond to all of this, but on the latter few paragraphs: there is a difference between a state (1) not providing statewide protection for members of a particular group, and (2) affirmatively preventing all local governments from protecting members of that group. The latter is what’s going on here, and it’s also what the Supreme Court held was unconstitutional in Romer v. Evans. On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: A couple of points on background . . . North Carolina is a “Dillon Rule” state where municipalities are limited to exercising those powers that are “expressly conferred” or “necessarily implied” from enabling legislation passed by the state legislature. 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. Because of NC Constitution’s prohibition on 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. The NC Supreme Court in 2003 held that the state legislature had acted unconstitutionally by authorizing a single county to enact and enforce a local ordinance prohibiting discrimination in employment. The court said that if the legislature was going to address employment discrimination by means of a state statute, it had to adopt a statewide law applicable to employers regardless of where they are located in the state. Interestingly, the court emphasized that authorizing such local statutes “could lead to a balkanization of the state’s employment discrimination laws, creating a patchwork of standards varying from county to county. The end result would be the ‘conglomeration of innumerable discordant communities’ that Article II, Section 24 was enacted to avoid.” Now to HB2 . . . The argument of those who criticize HB2 seems to come down to this: NC has impermissibly discriminated against and shown animus toward transgender persons because it did not give them the right to use the bathroom of their choice. Why does it necessarily show animus towards transgender persons if the NC legislature decides that it can’t give transgender persons everything they want? Why can’t NC say to transgender persons, “We understand your privacy needs and HB2 will specifically permit accommodations for transgender persons in public schools and other government facilities in the form of single-occupancy or controlled-use bathrooms. But we also have to balance your privacy needs with the privacy and safety concerns of non-transgendered persons. Given those concerns, we will require that multi-occupancy bathrooms, locker rooms, etc. be differentiated on the basis of biological sex.”? Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker rooms are a zero-sum game—whatever is gained by one side is lost by the other. The two transgendered plaintiffs in the lawsuit allege that using the bathroom other than the one of their choice will make them feel distressed and uncomfortable. While transgendered persons have legitimate privacy concerns, so do non-transgendered persons, who will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different than their own. The reason we have separate sex-specific bathrooms and locker rooms is because men and women have different bodies and we want to protect privacy related to our bodies, not our gender identity. Transgender persons—at least the two plaintiffs in the NC lawsuit—do not want to use single-occupancy bathrooms because they say it stigmatizes them. A lot of people prefer single-occupancy bathrooms because it better suits their privacy preferences, but don’t feel stigmatized. So, back to the question: Why is NC constitutionally required to balance its citizens’ privacy interests in favor of permitting transgender persons access to the bathroom or locker room of their choice? Must it give transgender persons everything they ask for to avoid showing animus? Regarding the new NC public accommodation law, the argument is similar: NC has discriminated against and shown animus toward gays, lesbians, and transgender persons because it did not include them as protected classes in HB2. Federal public accommodations law protects only against discrimination on the basis of race, color, religion, and national origin. Federal laws that forbid discrimination in employment and education do not specify sexual orientation, gender identity, and gender expression as protected classes. Public accommodation laws don’t include sexual orientation and gender identity in 32 states and employment discrimination laws in 30 states do not cover sexual orientation and gender identity. Why can’t NC pass a public accommodations law limited to race, religion, color, national origin, and biological sex? Does the Constitution require the inclusion of sexual orientation and gender identity in all discrimination laws? Are existing federal and state laws that do not include sexual orientation and gender identity facially unconstitutional? What other classes does the Constitution require to be included? Disability, age, poverty, pregnancy, veteran status, familial status? Does the NC legislature necessarily show animus toward every class not included? Greg Wallace Campbell University School of Law _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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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