Courts are Democracy's Umpires

I am already on record opposing North Carolina's HB2, also known as the "bathroom bill." I find it reactionary, overreaching and short-sighted.

Since the lawsuits and countersuits between the state of North Carolina and federal government, an interesting question arose in a New York Times article: "Can a law written in the heat of the civil rights movement generations ago, apply to people its drafters never intended to cover?"

I suspect many individuals on both sides of the political spectrum already have a prepared response to that question. But too often what appears simple on the surface is quite complex underneath.

Does it matter what the original drafters intended? And is that law open to interpretation or must it remain frozen in perpetuity?

This was certainly the tension created when those advocating for marriage equality cited the 14th Amendment as the basis for the LGBT community to legally wed.

Opponents of marriage equality countered that the Reconstruction Amendments (13th, 14th and 15th) to the Constitution addressed slavery and should not be construed to apply beyond that.

That is certainly true for the 13th Amendment, which abolished slavery, but the 14th Amendment is not so clear. As a result, the 14th Amendment was used to justify and later strike down Jim Crow laws.

Section 1 of the amendment, which begins, "All persons born or naturalized in the United States," grants everyone due process and equal protection under law. Unfortunately, the drafters did not add any qualifiers suggesting a different definition of the word "all."

But does the Civil Rights Act of 1964 offer a clear answer regarding HB2? Is there language in the act that allows for inclusion of transgenders?

Attorney General Loretta Lynch believes HB2 is a clear violation of it. As she stated recently:
"They (North Carolina Legislature and governor) created state-sponsored discrimination against transgendered individuals, who simply seek to engage in the most private of functions in a place of safety and security -- a right taken for granted by most of us."

If we leave it there, both sides can freely participate in the debate without any consideration of the law.

Back in 2004, the U.S. 6th Circuit Court of Appeals found that such language does exist. However, in 2007, the U.S. 10th Circuit Court of Appeals reached a different conclusion.

Though the U.S. 11th Circuit Court of Appeals, in 2011, found that discrimination toward transgenders qualified as sexual discrimination, the court's findings were not under the civil rights legislation, but as a violation of the 14th Amendment.
And in March, the U.S. 4th Circuit Court of Appeals, under Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination, found for a transgender high school student born female who can use the boys restroom.
Meanwhile, the Supreme Court has said nothing. So where do we go from here?

There is a tendency to cling to the outcome as the determining factor.

The humiliating and sometimes frustrating reality for most who participate in the public discourse equate their desires as synonymous with justice.

I certainly felt this way about the Supreme Court's ruling in Shelby County v. Holder. Instead of citing the Constitution, Justice John Roberts, in my view, offered a sociological analysis to strike down key provisions in Section 5 of the Voting Rights Act.

It is too simplistic to offer what the original drafters of any legislation intended as justification to exclude any group of Americans. All legislation carries the potential of unintended consequences.

Nor can the matter simply be put to a vote. In 1963, would the white citizens of Birmingham have approved an ordinance that would have abolished segregation?
So we need the courts to serve as the umpires for our democracy. Their jurisprudence cannot be held hostage by our desired outcomes.

Regardless of the outcome, HB2 once again demonstrates the difficulty inherent when a nation commits itself to pursue the illusive more perfect union.