HB2: A timeline for North Carolina's newest law
The Justice Department’s move this week to gut North Carolina’s controversial LGBT law has raised the possibility of similar federal action to block Mississippi’s House Bill 1523.
But a government challenge against the controversial legislation is unlikely because of vast differences between the two laws, according to Ira Millhiser, a senior fellow at the left-leaning Center for American Progress and Roger Severino, director of the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation.
“The feds have a particular interest in North Carolina because of the strong argument that House Bill 2 violates Title VII and Title IX (of the Civil Rights Act of 1964) and because it causes discrimination to occur on such a grand scale,” Millhiser said.
And where the North Carolina’s HB2 directs state agencies to engage in practices deemed discriminatory by the Justice Department, HB1523 in Mississippi basically says that if someone engages in certain discriminatory practices, the state won’t stop it.
“The basic background status of (HB1523) is that people are free to run their businesses and, especially, live according to their faith without government interference,” Severino said. “There would have to be some federal authority for intervening against a state law and there is none that is visible or present.”
House Bill 1523 allows discrimination by individuals, businesses and religiously affiliated organizations that have ‘sincerely held religious beliefs or moral convictions’ against transgender people, same-sex marriage and sexual activity outside heterosexual marriage.
“That’s a different kind of law,” said Millhiser, who’s an attorney. “I don’t like the Mississippi law. But it is a milder law to say ‘the state won’t stop discrimination’ as opposed to the state saying ‘you must discriminate.’”
On Wednesday, the Obama administration informed North Carolina Gov. Pat McCrory that House Bill 2 discriminates against transgender state employees in violation of Title VII of the Civil Rights Act. That provision bars employers from sex-based discrimination.
Under HB2, transgender state employees cannot use bathrooms and changing facilities in public buildings that match their gender identity.
The law also was found to violate Title IX of the Civil Rights Act, which bars discrimination in education based on sex. House Bill 2 requires North Carolina students to use public school restrooms and locker rooms based on the gender listed on their birth certificates. The gender identity of transgender people doesn’t match their biological sex.
If the Justice Department determinations are upheld, North Carolina public schools could lose hundreds of millions in federal education funds.
In a letter to Gov. McCrory, the Obama administration gives the state until the close of business on Monday, May 9, to “remedy these violations” by confirming the state won’t implement or enforce HB2.
But on Thursday, North Carolina’s Republican Speaker of the House, Tim Moore, said the state won’t meet the Justice Department deadline and that lawmakers were studying their next move.
Critics of the North Carolina law were heartened by the federal action and impending showdown over a law that has drawn fire from LGBT and civil rights activists, along with business leaders and entertainers.
The Justice Department declined a request to comment for this story.
In the expected absence of federal action, however, Millhiser said individuals and private groups will probably file lawsuits against Mississippi’s law. New York attorney Roberta Kaplan may already be laying the groundwork.
In a letter to state officials on behalf of the Campaign for Southern Equality, Kaplan expressed concerns about a section of HB1523 that allows government clerks to cite religious objections and then recuse themselves from issuing marriage licenses for same-sex couples.
The law requires the employees to ensure that their recusal will not “impede or delay” the licensing process – but it doesn’t explain how that will occur.
Kaplan is concerned that the recusal provision violates a 2015 permanent injunction that requires the state to provide equal treatment to straight, gay and lesbian couples that want to marry.
She wants the state to provide an explanation of how they’ll ensure that no licensing delays occur when workers recuse themselves. Kaplan also wants information on whether workers who seek recusals will continue to issue licenses to straight couples while refusing to do so for gay and lesbian couples.
Kaplan did not return calls for comment.
Millhiser said HB1523 could also be vulnerable to legal challenge under a 1996 U.S. Supreme Court case.
In Romer v. Evans, the high court overturned a Colorado constitutional amendment that banned the state from extending civil rights protections to gays, lesbians and bisexuals as a protected class.
Writing for the court, Justice Anthony Kennedy explained that the amendment, in effect, relegated homosexuals and bisexuals to second-class status.
“Laws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Kennedy wrote. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”
“The specific thing that “Romer” said was not allowed – you can’t single out a certain, identifiable group and say that you wlll have less ability to seek the protection of your government than anybody else - that’s exactly what the Mississippi law does,” Millhiser said.
But Severino, who worked as a trial attorney in the civil rights division of the Department of Justice from 2008 to 2015, said the comparison to the Romer case was “frivolous” because under HB1523, Mississippi’s gays and lesbians “aren’t losing access to any government benefit they had before.”
“The left is upset because they have now been losing some of these religious freedom and bathroom privacy fights and would rather run to the courts than the ballot box to get their way,” Severino said.