Romer v. Evans and House Bill 2: Déjà Vu All Over Again

In 1992, Colorado enacted Amendment 2 to its state constitution, preempting all local ordinances and state laws banning sexual orientation discrimination. In 1996, the U.S. Supreme Court, in the case Romer v. Evans, struck down Amendment 2 as unconstitutional under the Equal Protection Clause. Two decades later, North Carolina enacted House Bill 2, preempting all local ordinances banning sexual orientation or gender identity discrimination in public accommodations. This essay argues that House Bill 2 — like Amendment 2 — is unconstitutional under the Equal Protection Clause. Part I summarizes Amendment 2 and Romer. Part II summarizes a recent amendment to the antidiscrimination ordinance in Charlotte, North Carolina, which prohibited sexual orientation and gender identity discrimination in public accommodations. Part II then discusses North Carolina’s enactment of House Bill 2, which preempted the Charlotte ordinance and authorized sexual orientation and transgender discrimination in public accommodations throughout North Carolina. Part III argues that House Bill 2 is unconstitutional under the Equal Protection Clause. First, Part III contends that House Bill 2 warrants heightened scrutiny. Second, Part III argues that — even if heightened scrutiny is not applied — the Bill fails rational basis review under Romer. This section outlines the striking similarities between House Bill 2 and Amendment 2. Namely, House Bill 2 is facially discriminatory, has a discriminatory legislative purpose, has a substantial discriminatory impact, and is not rationally related to any legitimate governmental interest. With these similarities in mind, this essay concludes that House Bill 2 is a plainly unconstitutional resurrection of Amendment 2.