If there were a perfect time to cite Supreme Court Justice Oliver Wendell Holmes Jr.’s famous observation that “Great cases like hard cases make bad law”—i.e. that laws that arise from passionate decisions on hot-button cases are often ill-conceived—it would apply to North Carolina’s legal skirmishes with the federal government over the state’s so-called “bathroom” legislation regulating public facilities access by gender declared at birth.
Since last year’s U.S. Supreme Court ruling that made same-sex marriage legal nationwide, conservative lawmakers have been pushing for ways for states to negate the new normal and shield people from prosecution if they act on their contrary views. The dispute has revived the country’s noted “culture wars,” which in a basic sense pit rural, conservative voters against more liberal city dwellers on controversial topics like abortion.
Gender access is the latest iteration of this culture divide, provoking efforts in several states to claim that religious liberty trumps homosexual marriage or open gender access to facilities. Foes of the Supreme Court’s sanctioning of gay marriage have found an emotionally resonant issue in bathroom laws, painting access limits as a necessary means to stop adult men from entering girls’ bathrooms and other traditionally gender-segregated locations like locker rooms and changing areas.
After passing bathroom laws, some politicians quickly saw the wisdom of Holmes’ words. Governors in several states with new gender specific bathroom regulations backed off them quickly in order to ease worries that the laws would cause the states to lose economic opportunities from tourism, conferences, sports events, and companies that threatened to take their business elsewhere if the rights of employees, visitors, or customers were restricted.
Georgia Gov. Nathan Deal decided at the end of March that his state’s bill, which created protections for people discriminating by gender, was not a great or hard case that needed to be pursued. Instead, the second-term Republican said he would veto the bill.
There was a certain practicality in Gov. Deal’s decision. Hundreds of companies, like Coca-Cola, Delta and Google—either based there or doing business in the state—vigorously criticized the legislation and threatened the state with huge amount of lost revenues.
When he announced his veto decision, Gov. Deal praised state residents as “warm, friendly and loving,” and said fundamental religious beliefs did not need to be protected by allowing discrimination against others. The law he rejected provided that individuals, companies and nonprofits would have been able to refuse services to same sex couples as well interracial couples and other pairings that have been afforded equal treatment under the law.
In a parallel case, Indiana Gov. Mike Pence signed a similar law in March, but a swift economic backlash to it pushed him to walk back his support and urge the state’s legislature to rewrite the law to include a provision that expressly bars discrimination against homosexuals.
But North Carolina’s governor, Pat McCrory, dug in his heels. McCrory rejected business concerns and decided to swing back at the federal government to defend the North Carolina law (HB2: “Public Facilities Privacy and Security Act“), which effectively bars people from using public restrooms that do not match the gender identity on their birth certificate, thus stopping transgender people from using the facilities of the sex they identify with. The North Carolina law also blocks cities from adopting anti-bias laws designed to protect homosexual and transgender people.
Supporters of this “bathroom law” argue that it is necessary to keep the sexes segregated in toilet facilities in order to ensure the safety of girls and women. Casting it as an issue of safety helped win support from people who do not accept gays and lesbians and who are seeking ways to rebuff constitutionally sanctioned same-sex marriage . Gay rights groups, on the other hand, argued that such statutes protect discrimination under the guise of religious liberty.
In their state’s suit against the national government, North Carolina officials accuse the Justice Department of stretching federal law anti-discrimination protections in ways never envisioned. The state argues that administration officials are barring discrimination based on sexual orientation or gender identity even though the law at issue, the Civil Rights Act of 1964, only covers biological sex and not gender identity.
The Justice Department disputes that interpretation, saying that such laws are discriminatory and should be barred—period. For now, it’s not clear what will come out of the dueling legal actions recently filed by North Carolina and the Justice Department. But while the two sides battle it out in what could be a titanic—and perhaps titanically long—contest, Holmes offered some judicial wisdom that may apply:
“For great cases are called great, not by reason of their importance in shaping the law of the future,” he wrote, “but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.”
In an era of great discontent with federal government, governors will be hard put to find ways to simultaneously satisfy both the economic needs and passionately held views of their constituencies. That calls for leadership skills.