Greg, The laws in both hypotheticals are likely unconstitutional, but not because they present Romer-type situations. They are unconstitutional either because they specifically employ a racial classification that does not stand under strict scrutiny or, more likely, because they fail under Hunter and Seattle, as explained and limited by Schuette. The situation in Hunter is similar to your hypothetical—in 1963 there was widespread racial discrimination in public accommodations and employment in southern cities like Charlotte, just as there was in Akron. The Akron city council enacted an ordinance directed at eliminating that discrimination, but the ordinance was overridden by a city referendum targeting the ordinance. As Schuette points out, "there was a demonstrated injury on the basis of race that, by reasons of the state encouragement or participation, became more aggravated.” Similarly, Schuette describes Seattle as a case where “the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.”
By contrast, as Will pointed out, the Charlotte City Council passed the ordinance solely to make a political statement and not because of any significant problem which existed and was caused by government action. There was no evidence of widespread invidious discrimination on the basis of sexual orientation or gender identity in the public or private sector in Charlotte (or other parts of NC, for that matter). Interestingly, the two transgendered plaintiffs in the NC lawsuit allege only that using a bathroom other than the one of their choice makes them feel distressed and uncomfortable; similarly, the lesbian plaintiff says that passage of HB2 makes her feel distressed, but she does not identify any instance in which she has suffered adverse treatment because of her sexual orientation. If there is widespread discrimination in public accommodations and employment in NC on the basis of sexual orientation and/or gender identity, and the state has caused or contributed to that discrimination, then I certainly will grant you that there is a much stronger and likely persuasive argument that HB2 is unconstitutional. The facts, however, are different than what you’ve described in your hypotheticals. Greg Wallace Campbell Law School 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: Saturday, April 2, 2016 at 5:17 PM To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom 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.
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