Aug Sept 2016
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The Advocate

North Carolina AG Won't Defend Gov's 'National Embarassment'

North Carolina Attorney General Roy Cooper
North Carolina Attorney General Roy Cooper

The man charged with protecting North Carolina officials from legal challenges will not defend a new anti-LGBT law hastily passed on March 23, North Carolina Attorney General Roy Cooper announced today. 

The attorney general believes the law — known as House Bill 2 — is wholly unconstitutional, and will not defend it in court, noting that HB 2 effectively gutted existing nondiscrimination protections that had been in place at the state’s Department of Justice since 2001. 

“We should not even be here today, but we are,” said the Democratic attorney general, who is also running for governor. Cooper is hoping to remove incumbent Republican Gov. Pat McCrory, who continues to support the first-of-its-kind law.

“We are here because the governor has signed statewide legislation that puts discrimination into the law," he added. "Obviously, the LGBT community is targeted, but also people who are discriminated against based on race, and religion, and other classes of people, could likely have a harder time bringing actions to protect themselves.”

One day after a coalition of LGBT groups announced a lawsuit challenging HB 2, Cooper held a press conference declaring that his office will not defend the constitutionality of the law, which repeals existing LGBT-inclusive nondiscrimination protections statewide and mandates that trans people use public bathrooms and locker rooms that do not match their gender identity, among other things

“Not only is this new law a national embarrassment, it will set North Carolina’s economy back if we don’t repeal it,” continued Cooper. “The threats to our economy will grow even darker the longer this law stays in effect.”

Cooper went on to warn that the law will prompt “a flood of litigation,” pointing to the lawsuit filed Monday by the American Civil Liberties Union and Equality North Carolina, which seeks an injunction to the law on the grounds that it is patently unconstitutional.  

“HB 2 is in direct conflict with our policy here at the North Carolina Department of Justice,” Cooper continued. “In order to protect our nondiscrimination policy and employees, along with those of our client, the state treasurer's office, part of our argument will be that HB 2 is unconstitutional. Therefore, our office will not represent the defendants in this lawsuit, nor future lawsuits involving the constitutionality of HB 2.” 

Cooper did acknowledge that the defendants named in the case (including him, in his official capacity) “deserve a defense,” and encouraged the governor to hire outside legal counsel. 

“But the fact is, we shouldn’t have to be dealing with these lawsuits in the first place,” Cooper concluded. “A shameful new law has brought them upon us. Discrimination is wrong, period. The governor and the legislature should repeal this new law.” 

He then pointed to Georgia Gov. Nathan Deal, a Republican who on Monday vetoed a similar legislative attack on equal rights for LGBT Georgians, killing a bill that had been dubbed a “license to discriminate” against LGBT people. Less than an hour later, Georgia lawmakers called for a special legislative session (like the one used to pass North Carolina’s HB 2) to override the veto. 

Although Cooper’s office is charged with representing the state and its elected officials in court, there is some precedent to state legal leaders refusing to defend laws they believe are unconstitutional. Such a refusal to defend laws deemed unconstitutional was a common tactic during the final years of the nationwide journey to full marriage equality, even when Republican governors continued defending so-called Defense of Marriage Acts in court.

For example, Pennsylvania Attorney General Kathleen Kane refused to defend her state’s ban on same-sex marriage in 2013, as did Virginia Attorney General Mark Herring a year later. Back in 2009 in California, then-attorney general Jerry Brown (who is now the governor) refused to defend the state’s controversial Proposition 8, which rescinded marriage equality in the Golden State. That case eventually went to the U.S. Supreme Court, where a majority of justices determined in June 2013 the anti-LGBT groups attempting to defend the law in court had no legal standing to do so. 

Watch Cooper’s full remarks below, via Raleigh TV station WRAL.

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