Is North Carolina's Anti-LGBT Law Unconstitutional?

The legal challenge to HB2 is taking shape

If the courts rule North Carolina’s new anti-LGBT law unconstitutional, a real possibility, here’s the likely hinge on which the case will turn (emphasis mine):

The bills [targeting transgender people] are also a reminder of what the Supreme Court calls animus: the mix of bias, dislike and fear that can overtake communities. Lt. Gov. Dan Forest said Charlotte’s ordinance “would have given pedophiles, sex offenders and perverts free rein to watch women, boys and girls undress and use the bathroom,” cruel characterizations that have no relationship to being transgender. The court has been clear for years that animus is not a constitutionally permissible basis for legislation. It’s actually the 20th anniversary of the court’s recognition of that principle, in another case in which a state tried to undo local efforts to protect L.G.B.T. people from discrimination. In the 1996 case Romer v. Evans, the court ruled that Colorado could not amend its state Constitution to block cities and counties from passing ordinances that throw up a legal shield on the basis of sexual orientation.

In other words, Colorado wanted to stop local anti-discrimination efforts much like the one in Charlotte that North Carolina just stopped. “We probably haven’t seen something as sweeping as the Colorado amendment until now,” says Sarah Preston, acting executive director of the North Carolina office of the A.C.L.U.

Romer v. Evans was based on Amendment 2, a 1992 referendum—approved by 53 percent of Colorado voters—that prohibited all branches of state government from passing legislation or adopting policies that prohibited discrimination against lesbians, gay men or bisexuals based on their sexual orientation. The court overturned it in a landmark 6-3 ruling, and Justice Anthony Kennedy wrote this for the majority (again, emphasis mine):

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons … We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

This afternoon, I spoke with Chris Brook, the legal director for the ACLU of North Carolina, about the legal avenues the organization might take to try to get HB2 overturned. He specifically mentioned Romer v. Evans and the Equal Protection and Due Process clauses of the 14th Amendment. Brook said he expects the ACLU and the organizations named in this statement to file a federal lawsuit on those (and possibly other) grounds “in a matter of days rather than weeks.”

(And here’s an interesting tidbit: In the mid-’90s, a Washington, D.C., firm named Hogan & Hartson represented gay activists in Romer v. Evans as part of its pro bono work. A young lawyer specializing in appeals did research and helped prepare oral arguments on the plaintiffs’ behalf, and “did a brilliant job,” according to one of his bosses. The lawyer? John Roberts.)