March 29, 2016 at 11:12 am EDT | by Chris Johnson
North Carolina AG won’t defend anti-LGBT law in court
Roy Cooper, gay news, Washington Blade

North Carolina Attorney General Roy Cooper won’t defend House Bill 2. (U.S. Air Force Photo by Airman 1st Class Mindy Bloem)

North Carolina Attorney General Roy Cooper announced on Tuesday he won’t defend in court the recently enacted measure in his state that’s considered the worst anti-LGBT law in the nation.

Cooper, a Democrat who’s running to become the state’s governor, declared he won’t defend House Bill 2 in court at an 11 am news conference at his office in Raleigh.

“Over the last 15 years, our office has defended the state, its officials and agencies when they’ve been sued,” Cooper said. “Our office will continue to do that, except it will not defend the constitutionality of the discrimination in House Bill 2.”

House Bill 2, signed into law last week by Gov. Pat McCrory after an emergency session of the state legislature, undos all pro-LGBT city ordinances in North Carolina, including the recently approved measure in Charlotte, and prohibits transgender people from using public restrooms consistent with their gender identity in schools and government buildings.

Cooper said his decision is based on LGBT non-discrimination policies in place both in his office and the North Carolina treasurer’s office, which he said are “in direct conflict” with House Bill 2. The treasurer’s office, Cooper said, asked him to represent the office in court to defend the policy in opposition to House Bill 2.

“In order to protect our non-discrimination policy and employees along with those of our client, the state treasurer’s office, part of our argument will be that House Bill 2 is unconstitutional,” Cooper said. “Therefore, our office will not represent the defendants in this lawsuit, nor future lawsuits involving the constitutionality of House Bill 2.”

Citing the potential economy penalty and loss of business for North Carolina, Cooper said McCrory should call on the state legislature to “fix” House Bill 2 to eliminate what he called discrimination enshrined into state law and avoid litigation altogether.

“The fact is we shouldn’t have to be dealing with these lawsuits in the first place,” Cooper said. “This shameful, new law has brought them upon us. Discrimination is wrong. Period. The governor and the legislature should repeal this law. Repeal will save needless litigation costs and will begin to repair our national reputation.”

Invoking Georgia Gov. Nathan Deal’s recent veto of “religious freedom” legislation in his state seen to enable anti-LGBT discrimination, Cooper said McCrory “should have done the same thing” as Deal.

“He saw what happened in the state of Indiana when that state passed laws that discriminate,” Cooper said. “He saw that Indiana lost business and millions of dollars of revenue, and every day working people there were hurt. Gov. Deal didn’t want that for his state. He just stepped up yesterday and veto this law that would have allowed discrimination in Georgia because he knew that it would hurt Georgia’s economy. Our governor should have done the same thing and vetoed House Bill 2, but he did not.”

On Monday, LGBT advocacy groups — Lambda Legal, the American Civil Liberties Union, the ACLU of North Carolina and Equality NC — filed a lawsuit in federal court arguing the law is unconstitutional on the basis it violates equal protection under the Fourteenth Amendment of the U.S. Constitution and Title IX of the Education Amendments of 1972, which prohibits gender discrimination in schools.

In a joint statement, the four organizations behind the lawsuit commended Cooper, saying he stands “on the right side” of history for declining to defend House Bill 2 in court.

“North Carolina Attorney General Roy Cooper, the state’s top law enforcement official, has concluded House Bill 2 is unconstitutional and harms North Carolinians without justification,” the statement says. “As our lawsuit highlighted yesterday, House Bill 2 singles out the LGBT community for discrimination. That’s not only incompatible with the state’s constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the attorney general stands on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure.”

Cooper’s decision not to defend House Bill 2 in court is consistent with his previously stated opposition to the measure, although he hasn’t indicated until now he won’t defend the law against litigation. Last week, Cooper made public a video as the state legislature was debating House Bill 2, calling the measure “discrimination.”

In 2014, Cooper also declined to defend his state’s ban on same-sex marriage after the U.S. Fourth Circuit Court of Appeals ruled against Virginia’s marriage ban. However, Cooper has elected to defend in court Senate Bill 2, a measure passed over McCrory’s veto last year that allows magistrates to opt out of performing marriages — same-sex or different-sex — for a six-month period over religious objections.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • Gregory Ervin
  • Phranqlin

    NC’s governor and wingnut legislature thought they were soooooooo clever to avoid public comment by ramming this bill through in a day. And they knew that the AG is a Democrat who’s running for governor. What did they think was going to happen?

  • Jeff Gyure

    No conservative has ever been on the right side of history.

  • lyricosm

    It’s hypocritical for us to condemn Kim Davis for not upholding the law as she had sworn to do and now praise Roy Cooper for not upholding the law as he has sworn to do. He should just resign and get busy on his campaign for governor and kicking McCrory to the curb.

    • Derek Schmidt

      I’m inclined to see this the same way as well, but I’d love to hear a good argument to the contrary.

      • The legislators and the governor swore to uphold the Constitution for ALL North Carolinians, not just the ones they like. THEY wrote discriminatory INTO LAW and thereby deprived a group of citizens of Equal Protection without Due Process — which blatantly violates the 14th Amendment. Therefore, the attorney general refusing to defend an unconstitutional law is altogether fitting and proper, especially because both his office AND the state treasurer’s office have anti-discrimination policies in place, AND the state treasurer’s office has asked him, as the top law enforcement official in the state, to defend their right to enforce their non-discrimination policy (along with his own). He’s received similar requests from various cities and towns. Thus, he IS in fact doing his job, and quite appropriately, and has ample legal precedent to support his move, even BEYOND the 14th Amendment argument.

        • Derek Schmidt

          Thanks for that. I was hoping there was a good justification.

      • David Corliss

        The state treasurer asked the attorney general to defend the treasury department’s anti-discriminatipn policy. The Governor wants the AG to defend the law but the Treasurer asked the AG to defend Treasury Department policy instead. Two different state officials asking for exactly opposite actions. That means the AG has to look at the law and decide which action to take. So he has done and so he has decided on the basis of the law in question. Because different state offices asked for opposite legal actions, the AG was doing his job, not abbrogating it.

    • I’m sorry, that;s wrong. The legislators and the governor swore to uphold the Constitution for ALL North Carolinians, not just the ones they like. THEY wrote discriminatory INTO LAW and thereby deprived a group of citizens of Equal Protection without Due Process — which blatantly violates the 14th Amendment. Therefore, the attorney general refusing to defend an unconstitutional law is altogether fitting and proper, especially because both his office AND the state treasurer’s office have anti-discrimination policies in place, AND the state treasurer’s office has asked him, as the top law enforcement official in the state, to defend their right to enforce their non-discrimination policy (along with his own). He’s received similar requests from various cities and towns. Thus, he IS in fact doing his job, and quite appropriately, and has ample legal precedent to support his move, even BEYOND the 14th Amendment argument.

      • Robert

        That is just stupid, If I were born a man and I identify with being an English Bulldog, and I fell in love with a Golden Retriever. Should I have equal protection under the Law.

        • I’m sorry Robert, you didn’t finish your thought. You’re a man, but you identify as an English Bulldog and you love a Golden Retriever, You’re STILL a MAN in your example, so yes, you deserve equal protection under the law. If you want a person to walk you around your neighborhood on a leash or toss a ball to you in the front yard, there is NO law against that — it’s a free country after all. If you care to finish your thought, perhaps I’ll offer a different answer, but otherwise, your scenario is STUPID, and thus, you get an answer that fits accordingly.

  • Stephen Clayton Jr.
  • Robert

    How dare NC not allow a person to use the restroom they identify with. What’s happening to this country. People try to stop us from having marijuana shops on every corner. They say we should go to jail for long periods of time for rape. Don’t
    they understand bad guys need love too. If I murder someone, our society is
    quick to put me on death row. Do you believe that, to actually kill me for
    killing someone else, that is just barbaric. Will someone fight for my rights
    please? Hello ACLU, I identify myself as a Himalayan Goat. I deserve a restroom
    with hay, so I can eat after I do my business. I just had a good idea, when I’m
    done being a Goat, I’m going to identify with 9 year old girls, where is the
    nearest elementary school? I have to go to the restroom. See you in the
    restroom little girls : )

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