Federal Challenge Should Bring an End to HB2

The Department of Justice has determined that the governor and the state of NC are in violation of the Civil Rights Act of 1964.


Now it’s official. The state of North Carolina and its governor are breaking the law.

The U.S. Justice Department delivered that verdict Wednesday in a letter to Gov Pat McCrory regarding the legality of House Bill 2, the anti-LGBT law that includes a measure preventing transgender people from using public facilities that align with their gender identity.

In the letter, Valita Gupta, principal deputy assistant attorney general, told the governor, “The Department of Justice has determined that, as a result of compliance with and implementation of NC House Bill2, both you and the state of NC are in violation of Title VII of the Civil Rights Act of 1964.”

That determination means millions of dollars, perhaps billions of dollars, in federal funding to North Carolina may be suspended unless the state repeals or significantly amends HB2. McCrory has until Monday to say whether the state will comply or defy.

The governor and the reckless Republican leaders of the General Assembly, Senate leader Phil Berger and House Speaker Tim Moore, to this point have chosen defiance. They’ve ignored calls for HB2’s repeal from hundreds of corporate CEOs, local chambers of commerce, religious leaders and town and city governments, and they’ve scoffed at companies, conferences, entertainers and other state governments that are boycotting North Carolina in protest.

Now they face the U.S. government. Is that enough to make them see the folly of risking so much for a foolish and unenforceable law that addresses a problem that doesn’t exist? Even the likely GOP presidential nominee, Donald Trump, has said HB2 is a mistake that shouldn’t have happened and should be abandoned.

McCrory, who is up for re-election and sinking in the polls because of the damage from HB2, should be and likely is alarmed by the federal demand. He thought HB2 would stir his Republican base and put his Democratic opponent, Attorney General Roy Cooper, in the uncomfortable position of defending “men in women’s rooms.” But the ploy backfired, and he’s now desperate for a way out of it.

The U.S. Justice Department offers McCrory an exit. He should take it. He should say that the law is not worth the damage it has done to North Carolina’s reputation and economy and that it’s certainly not worth losing what some estimate could be $4.5 billion in federal funding.

But North Carolina’s response ultimately will not be up to the governor. Berger is the adamant force behind this law. He has no concerns about being re-elected. And he politically seceded from the U.S. government once Barack Obama became the head of it. Berger apparently welcomes a battle over states rights and discrimination. He said in a statement, “This is a gross overreach by the Obama Justice Department that deserves to be struck down in federal court.”

Certainly questions of whether North Carolina laws comply with the U.S. Constitution have not stopped Berger so far. He supported a ban on same-sex marriage and allowing magistrates to opt out of presiding at such civil ceremonies even after the Supreme Court upheld the right to same-sex marriage.

Berger and his conservative allies may be encouraged by their recent victory over the U.S. Justice Department after it challenged the state’s sweeping changes in voting laws as discriminatory to African-American voters. But that case is not over and may yet be lost on appeal.

The challenge now facing North Carolina’s Republican leaders is about more than voting laws. Their defiance has bumped up against the federal government and an array of services and millions of people who depend on federal funding. This is not a fight worth continuing. And even if the state could challenge the Justice Department in court and win, it would still lose by calling yet more attention to North Carolina as a place that would enshrine discrimination in law and defend it at all costs.

It is time to end what never should have begun. Repeal HB2.