Friday, March 25, 2016

North Carolina’s "Bathroom Bill" and the Right to Local Self-Government

Rich Schragger

North Carolina’s HB 2—the so-called “bathroom bill”—is notable for many reasons, not least of which is the state legislature’s detailed regulation of who can use what kinds of restrooms, locker rooms, changing rooms, and shower rooms. The real import of the new law, however, is its dramatic preemption of municipal regulation well beyond bathrooms.  HB 2 declares that wage and hours regulation, municipal contracting, employment discrimination, and public accommodations laws are all “properly issue[s] of statewide concern, such that [the statutes] supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the state.” The goal, as has been reported, is to overturn municipal laws that set a higher minimum wage, that require municipal contractors to abide by certain wage and labor laws, or that protect LGBT people from discrimination in employment and public accommodations. Unlike Colorado’s Amendment 2, which on its face preempted the local adoption of ordinances protecting gays, lesbians, and bisexuals, HB 2 affirmatively outlaws discrimination on account of race, religion, color, national origin, biological sex (my emphasis), or handicap, and then preempts all local legislation that would extend protections beyond those categories. It is thus an anti-LGBT law masked as an anti-discrimination provision.

Whether courts see it that way depends on whether they are attentive to the North Carolina legislature's motives. InRomer v. Evans, “the bare desire to harm a politically unpopular group” was evident on the face of the Colorado amendment. North Carolina’s statute is more subtle, but not different in purpose or effect: a politically unpopular group that had successfully gained protections at the municipal level is targeted by the state.
One could read Romer as only requiring that states not target a particular group for a special disability.  On this reading, a state could prevent its cities from extending anti-discrimination provisions to a marginalized group by preventing those cities from adopting any anti-discrimination legislation whatsoever—exactly what North Carolina did in this instance. But a broader reading of Romer is possible. David Barron has suggested such a reading, and so have I. On my account, 
[w]here a local regulatory choice that grants equal benefits to a normally unpopular group appears not to produce internal or external effects that require statewide regulation, then courts should take a hard look at state rules that override that choice. The combination of the absence of good reasons for centralized regulation, the unpopularity of the group, and the group’s ability to obtain some measure of protection from local majorities will be indicative of state-wide animus, an impermissible motive for government regulation.

Of course, to adopt such a reading of Romer, one has accept the idea that there is some realm of municipal regulation that is protected from contrary state interference.  Again, Romer can be read to embody such a principle: It was very important to Justice Kennedy that Colorado’s Amendment 2 had shifted the locus of legislation from the city to the state, and had deprived a “politically unpopular minority, but no others, of the political ability to obtain special legislation at every level of state government, including within local jurisdictions having pro-gay rights majorities.”
Under current equal protection doctrine, politically unpopular groups do not have a right to succeed in the local political process.  But they do have a right not to be targeted for special political disabilities on the basis of animus. Perhaps that also means that cities have some constitutional room to extend basic civil rights protections to politically unpopular groups despite the state’s objection.
Cities are increasingly the sites for progressive anti-discrimination and wage and hours legislation. As opponents shift their attention to state legislatures, the weakness of cities in the face of state overrides becomes increasingly apparent. Maybe it is time again to revive a broader right of local self-government, especially when cities and other local jurisdictions are acting to advance equality, not suppress it.

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