The ACLU yesterday filed a federal lawsuit aiming to strike down North Carolina’s anti-LGBTQ law on the basis that it violates the equal protection guarantee of the 14th amendment as well as Title IX. Today, North Carolina’s Attorney General Roy Cooper has concluded the bill is unconstitutional and has said he won’t defend it. This is akin to Obama Administration Attorney General Eric Holder refusing to defend DOMA, which the Supreme Court found unconstitutional, and overturned.
North Carolinians broadly support laws protecting against gender identity discrimination (over 60%), and the balance of harms in the law – protections in bathrooms for women versus the legalization of outright discrimination on the basis of gender identity – is the same unicorn as voter fraud – a mostly-myth conjured up by Republicans to serve their policy preferences.
Taking aim directly at Justice Kennedy’s position on issues like same sex marriage and abortion, the ACLU argued in its lawsuit that allowing discrimination based on gender identity strikes at the heart of the autonomy and self determination the Constitution protects. As we saw in today’s 4-4 tie in Friedrichs v. California Teachers Association which was a huge blow to conservative anti-union groups, having no ninth justice, particularly a “moderate” like Justice Garland, is continuing to harm Republicans, now legally as well as politically. I’m not saying Judge Garland would necessarily be the fifth conservative vote should the NC law make its way to the Supreme Court (as it’s likely to do), or that Judge Garland would have struck down the Union dues in Friedrichs and handed a colossal defeat to them. But it’s possible. And with a progressive Justice from a President Clinton backed by a majority-democrat Senate more likely by the day with Trump as the GOP favorite, I expect many in the GOP are reconsidering their obstructionism, and coming to the understanding that Judge Garland, who has a long record of deference to the Constitution and the law, is their last best chance of not “losing” the Court for years to come.