In an op-ed in Sunday’s Greensboro News & Record, Elon University Law School professors Scott W. Gaylord and Thomas J. Molony argue that yes, HB2 is constitutional.
With due respect to the professors, they lay on the legal jargon pretty heavy, so it takes a close read (or two) for us laypeople to get the gist of their argument. But I think this pretty much sums it up:
Some people have characterized Charlotte’s ordinance as providing equal rights under the law to all of Charlotte’s residents. That’s just not true. Although Charlotte included classifications beyond those listed in HB 2 (extending special protection based on age, marital status, familial status, sexual orientation, gender identity, gender expression and disability), Charlotte omitted and (HB 2’s critics would say) “discriminated” against individuals based on, among other things, military service, pregnancy, parenthood and political affiliation. Yet if all classes of people — whether suspect classes under the court’s equal protection cases or not — must receive special protection under state laws, then many (perhaps most) pieces of legislation will be subject to constitutional challenge.
What that tells me—someone correct me if I’m wrong—-is we’re all separate classes of people in one form or another and thus any of us can claim some form of discrimination. Protecting everyone from discrimination would require heaven-knows how many laws on the books and would tie up the court system forever.
Also read the first paragraph carefully—note the professors argue that the ;arge multinational corporations arguing for HB2’s repeal —whether verbally or by refusing to invest in North Carolina—are “exercising their right under the Citizens United decision to participate in the political process.” (Emphasis mine.)
Should HB2 hold—there is now question whether or not it will be repealed or placed on the November ballot during the short session (I don’t see either happening)—it will be interesting to note if corporations donate to anti-HB2 candidates as the election heats up.
