North Carolina’s new law enables and protects people who discriminate on the basis of sexual orientation or gender identity. The state attorney general, Roy Cooper, has refused to defend the law in court. Should he?
This is an uncomfortable question because it’s so similar to another recent case. Read both of the descriptions below and ask yourself why they are different.
The new law in North Carolina permits discrimination. It requires trans men to use women’s bathrooms and trans women to use men’s bathrooms. It blocks local regulations — like the one in Charlotte — that protect protect gay and transgender people. Civil liberties groups and transgender people have sued in Federal court to block the law. Attorney General Cooper would normally defend this type of suit, but has refused to do so, surprising and upsetting the governor.
After the federal ruling permitting people of the same sex to marry each other, Kim Davis, a county clerk in Kentucky, refused to sign marriage certificates for same-sex couples. She says her religious and moral beliefs mean that she can’t do that part of her job.
I know where I stand. I think the North Carolina law is very wrong, and if I were Roy Cooper, I wouldn’t defend it either. And I think Kim Davis is wrong and ought to do her job, which is to allow same-sex couples to marry. But why are these two positions not contradictory?
Why is Roy Cooper allowed to refuse to do his job based on moral objections, while Kim Davis cannot use the same reasoning? Think about that for a minute, because if you agree with my position, you also need to justify why these two cases are not the same. (If you disagree with me — you support Kim Davis and oppose Roy Cooper — you still have the same problem: why is one right and the other wrong?)
After a lot of thought, here is the answer I came to.
Roy Cooper is a court officer. He is refusing to do what he’s been asked because, as the state’s top lawyer, he cannot defend a law he has decided is unconstitutional. This is an objection based on a constitutional opinion of lawyer whose job is to make such judgments.
Kim Davis is objecting based on her personal religious beliefs. A Supreme Court defines the interpretation of the constitution. Kim Davis cannot object on constitutional grounds, then, but only on personal grounds.
I think this is the right answer, but it’s not a comfortable answer (especially since I’m writing this from North Carolina, where I am about to speak with come college students and this will certainly come up).
For example, this reasoning tells you that if federal courts were to decide that the North Carolina law is constitutional, Roy Cooper must enforce it, even if he objects to it. If you disagree with that, you’re going to have explain why you don’t support Kim Davis’ refusal on the same grounds. Are we a country of laws that respects court decisions, or not?
If you’re making your decisions based on logic, and not just your gut and your gonads, then this analysis ought to make you a little uneasy. I hope it does.
Here’s a bonus for you: North Carolina governor Pat McCrory’s defense of the bill and objections to Roy Cooper’s refusal to defend it. Notice the language he uses (“privacy” vs. “discrimination”). The language you use here depends on which side of the issue you land on.