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DATE:
RE:
Introduction
The proposed ordinance (the Ordinance), which adds the categories of sexual
orientation, gender identity or expression, marital status, and familial status in the city of
Charlottes nondiscrimination laws, does not contain adequate safeguards for constitutionally
protected speech and free exercise of religion. It also may violate the Establishment Clause.
Enacting this ordinance will threaten First Amendment freedoms and expose the city of Charlotte
(the City) to legal and fiscal liability.
The Ordinance presents, among others, the following legal concerns:
I.
I.
It will infringe First Amendment free speech and free exercise rights by requiring
business owners to engage in certain activities, or support certain messages, in
violation of their religious beliefs.
II.
It will require businesses, private clubs, and perhaps even churches and other
houses of worship, to make their restrooms open to both sexes, and also force
fitness centers to make their restrooms, locker rooms, and shower rooms open to
both sexes. This will violate the constitutional right to privacy and place these
entities at risk of lawsuits.
III.
Both the United States and North Carolina Constitutions protect freedom of expression.1
The constitutional right to free speech includes both the right to speak freely and the right to
refrain from speaking.2 A long line of U.S. Supreme Court precedent establishes that the
1
2
Scottsdale, AZ 85260
Phone: 800.835.5233
Fax: 480.444.0025
AllianceDefendingFreedom.org
See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 572-73 (1995) (government
may not require a public-accommodation parade organization to facilitate the message of a gay-advocacy group);
Pacific Gas and Elec. Co. v. Public Utils. Commn of Cal., 475 U.S. 1, 20-21 (1986) (plurality) (government may
not require a business to include a third partys expression in its billing envelope); Wooley, 430 U.S. at 717
(government may not require citizens to display state motto on license plates); Miami Herald Publg Co. v. Tornillo,
418 U.S. 241, 258 (1974) (government may not require a newspaper to include a third partys writings in its editorial
page).
4
See 42 U.S.C. 1983, 1988 (providing that persons who challenge an unconstitutional state law may recover
costs and attorneys fees).
5
Charlotte City Code (Code), Art. III 12-58.
6
Alliance Defending Freedom, Govt tells Christian ministers: Perform same-sex weddings or face jail, fines,
October 18, 2014, available at http://www.adfmedia.org/News/PRDetail/9364.
Alliance Defending Freedom, City of Coeur dAlene confirms for-profit wedding chapel violates ordinance,
October 21, 2014, available at http://www.adfmedia.org/News/PRDetail/9366.
8
Id.
9
For more information about Barronelle Stutzman and Arlenes Flowers, including links to relevant legal
documents, see the Alliance Defending Freedom media page, available at http://www.alliancealert.org/tag/zz-stateof-washington-v-arlenes-flowers/. The complaints against Barronelle are available at
http://www.adfmedia.org/files/ArlenesFlowersAGcomplaint.pdf and
http://www.adfmedia.org/files/ArlenesFlowersACLUcomplaint.pdf. A short video featuring Barronelle telling her
story is available at http://www.youtube.com/watch?v=MDETkcCw63c.
10
For more information about Blaine Adamson and Hands On Originals, including links to relevant legal
documents, see ADF: Ky. T-shirt company not required to promote message it disagrees with, April 20, 2012,
available at http://www.adfmedia.org/News/PRDetail/5454.
The current nondiscrimination statute makes it unlawful to deny any person the full and
equal enjoyment of the . . . facilities . . . of a place of public accommodation.14 But the current
law has an exemption for [r]estrooms, shower rooms, bathhouses and similar facilities which
are in their nature distinctly private. Also exempted is the YMCA, YWCA and similar types
of dormitory lodging facilities[,] as well as [a] private club or other establishment not, in fact,
open to the public.15 Under the current law, then, public businesses and private organizations
are allowed to segregate facilities by sex.
11
The Ordinance, if enacted, will require the City to only accept contract bids from
businesses that provide, with respect to employment decisions, protection for sexual orientation,
gender identity, gender expression, and marital status. If a business or service does not provide
such protection, it cannot be awarded City contracts. This requirement may cause the City to
19
Wash. college OKs exposure of young girls to naked man, Alliance Defending Freedom News Release, Nov. 1,
2012, available at http://www.adfmedia.org/News/PRDetail/7770; Matt Driscoll, Transgender Student in
Evergreens Locker Room Draws Ire of Arizona Religious Group, Seattle Weekly News, Nov. 5, 2012, available at
http://www.seattleweekly.com/dailyweekly/2012/11/transgender_student_in_evergreen_locker_room_draws_letter_
from_arizona_alliance_defending_freedom.php; Nina Golgowski, Parents outrage as transgendered woman is
permitted to use the womens locker room exposing himself to little girls, Mail Online, Nov. 3, 2012, available at
http://www.dailymail.co.uk/news/article-2227562/Colleen-Francis-Outrage-transgendered-woman-permitted-usecollege-womens-locker-room-exposing-himself.html.
20
See, Robert J. Lopez, Man wore dress, wig to videotape women in bathroom, deputies say, Los Angeles Times,
May 14, 2013, available at http://articles.latimes.com/2013/may/14/local/la-me-ln-man-videotape-women-inrestroom-20130514.
21
See, Sam Pazzano, Predator who claimed to be transgender declared dangerous offender, Toronto Sun, February
26, 2014, available at http://www.torontosun.com/2014/02/26/predator-who-claimed-to-be-transgender-declareddangerous-offender.