Inconvenient Federalism: The Dangers of States’ Rights and Travel Bans

“Be careful what you wish for because you just might get it” is an old adage that might apply to Republicans when they make calls for federalism and states’ rights.    When Republicans began advocating for more state power they probably never expected to get what they are seeing now–states pressuring one another on policy and human rights issues, and states doing things that the national government cannot do.  And when Democrats and Liberals cheer for state travel bans to punish states for bathroom bills, they too may be opening themselves up to the dangers of federalism.

The Republican and conservative call for states rights and federalism is a creature of the 1970s rooted in two issues.  The first is a reaction to the expansionist federal government during the New Deal under Franklin Roosevelt and the Great Society under Lyndon Johnson.  Both were  liberal enterprises that significantly expanded the role the federal government in ways that conservatives and Republicans did not like.  The other call for federalism was in reaction to the liberal Supreme Court policies of the Warren Court which expanded constitutional protections to a host of issues, including criminal due process, civil rights, privacy, and eventually under Chief Justice Warren Burger, reproductive rights and abortion.

The call for states rights and federalism was an effort to limit the federal government’s power, at least its liberal bent.  Let states do it, so the claim is, and they will do it better.  They are the laboratories of democracy, capable of innovating and more in touch with their local needs and people.  States’ right in theory is about local democracy, ostensibly at least.  In reality, the belief among many Republicans back in the 1970s when the “New Federalism” was first championed, and even today, was that states rights would weaken the national government, undo the liberal agenda, and allow for conservative outcomes to prevail.

In many cases federalism did work.  A weakened national government meant states could again pass anti-abortion, anti-gay, and just about any other anti-something legislation that they wanted. Yet it was an inconvenient and inconsistent  federalism.   When Reagan appointed Antonin Scalia to the Supreme  Court and for the last 30 years when he and it became a reliable institution supporting conservative outcomes there was no complaint about the federal government.  The same was the case when Bill Clinton signed welfare reform, the Defense of Marriage Act, or when George Bush increased federal powers to wage the war on terrorism.

But conversely, federalism also meant that states were freed up to act and do things they could not do before.  The concept of New Judicial Federalism, launched by a famous 1986 law review article by Supreme Court Justice Brennan, meant that state courts could draw on their constitutions to innovate.  And they have.  It was state courts that launched the gay rights movement, eventually pressuring the US Supreme Court to constitutional a right to same-sex marriage last year.  But states have also moved on marijuana legalization, health care reform, banning the death penalty, right to die legislation, minimum wage, and a host of other reforms that the federal government could not pass and which conservatives did not like.  Change is more often than not bottom up and not top down, and the federal courts have taken their cues from state courts to make doctrinal changes under federal law.

But now there is yet another face to federalism that brings mixed blessing to conservatives and Republicans. Consider on the one hand decisions by the states or North Carolina and Mississippi to pass bathroom legislation restricting transgender individuals to use facilities that correspond to their gender birth.  Or Indiana’s recent decision to place new restrictions on abortions.  This is clearly what state righters had hoped for.  But now consider the reaction to the bathroom bills.  States, including Minnesota, have now imposed bans on non-essential travel to these states and are leading the way to encourage corporations and organizations to boycott these states.  Unleashing federalism means that states have the power to pressure one another to tow the policy line.  Doubtful this is what states’ rights advocates envisioned.

But there is something dangerous with this new federalism–it invites retaliation or use for less than noble reasons, and thus is not good news for Democrats. At what point will North Carolina or Mississippi retaliate against Minnesota and issue its own travel bans?  Or what if other states decide they do not like legislation in Colorado or Washington legalizing marijuana?  Or what if some states want to pressure another on tax, education, or other policies?  So far the new federalism boycotts have been launched to support liberal causes, but why not for conservative ones too?  Minnesota’s economic travel ban makes many Democrats feel politically smug but that tool can be used against them too.

This type of federalism runs very close to economic protectionism and parochialism that the Constitution’s Commerce Clause was meant to prevent.  The Constitutional framers of 1787 had seen the states discriminating against one another and part of the entire constitutional project was to bring economic and political unity to the country.  Federalism and states rights can easily be symbolized by a burning cross as it can be by a burning joint. One’s rights should not depend on which state one lives in.  Freedom and equal opportunity means freedom equality of opportunity for everyone, regardless of where they live.  This is what E Pluribus Unum is supposed to stand for.

The new federalism movement is both a failure when one thinks of nationalism and building a UNITED States of America, but is also showing how the states’ rights movement has not lived up to what many conservatives and Republicans envisioned.

Bathroom Politics and Transgender Discrimination

Prejudice always seems to start in the bathroom.  First it was the separate but equal doctrine that

forced African-Americans to use segregated facilities, including bathrooms.  Then it was Phyllis Schlafly and those opposed to the Equal Rights Amendment for women who raised the fear of men using women’s bathrooms as a way to defeat the amendment.  Opposition to gay rights was flamed by visions of sexual predators lurking around bathrooms. Now it is the opponents of transgender rights using the bathroom as a way of furthering prejudice by supporting legislation requiring individuals to use bathrooms designated for them based on their birth gender.

Yes privacy is an important legal right in America and should be respected.  Yet often times concerns of privacy masked underlying hostility and discrimination.   But privacy claims too often are incorrectly are invoked to thwart another powerful legal claim–the right to equal treatment.  When one looks at the Minnesota House bill HF 3396–The Bathroom Bill–requiring individuals to use the bathroom that corresponds to their birth assigned gender, it is clear that the proposal should be considered unconstitutional under both the US and Minnesota Constitutions, and illegal under both federal and state law.

The Fourteenth Amendment’s Equal Protection clause declares that “ no state shall deny to any person within its jurisdiction "the equal protection of the laws.”  While originally adopted after the Civil War to prevent discrimination against African-Americans, the Supreme and lower federal courts have used the Equal Protection clause to apply to many forms of discrimination, including that based on sex.  Courts have also used the Equal Protection Clause to address discrimination against gays and lesbians, and in recent years it has been invoked to protect transgender individuals.  In  Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), a federal court of appeals ruled that the termination of a transgender person by the State of Georgia because she was transitioning from one gender to another was a form of sex discrimination that violated the Fourteenth Amendment.

The Minnesota Supreme Court has yet to adjudicate and rule on a transgender discrimination  claim under the state constitution.  Were it to do so it would reach arguments similar to that in Glenn.  The reason is that in cases such as State v. Russell, 477 N.W.2d 886 (Minn.1991) the Court has argued that the State’s Equal Protection Clause effectively provides as much or more exactly  scrutiny or protection against discrimination when compared to the US Constitution. If that is the case one can make a strong argument that the Bathroom bill also violates the Minnesota Constitution.

Turning to statutory claims, Title VII of the 1964 Civil Rights Act bans workplace discrimination based on among factors, sex.  The law has been invoked to prohibit discrimination against transgender individuals.  The basis for applying it that way started in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), where Justice Scalia ruled for the Court that title VII applies to any form of sex-based discrimination.  Discrimination against transgender individuals is sex-based.  In cases such as Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004),  Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000), and Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), three different  circuits of the federal courts agreed that Title VII applies to transgender discrimination.

Most directly and recently, in January 2015 Deluxe Financial Services settled a Title VII case arising out of the company and its employees harassing a transgender person including forcing the individual to use the bathroom as determined by her birth gender.  The federal Equal Employment Opportunity Commission had ruled in favor of the transgender person saying the company violated Title VII of the Civil Rights Act of 1964 by subjecting her to “a hostile work environment and disparate treatment because of her sex, including because Ms. Austin is a woman who is transgender…”

Finally, at the state level, the clearest indication that the bathroom bill is illegal resides in the how it seeks to amend the Minnesota Human Right Act (MHRA) which, among other things, bans discrimination based on “sexual orientation.”  HF 3396 explicitly changes that law to create a bathroom exception. The Minnesota Supreme Court in Goins v. West Group, 635 N.W.2d 717 (2001) the Minnesota Supreme Court adjudicated a claim that a company had violated the Act when it required a transgender person to use the bathroom that corresponded to her birth gender. The Court ruled no in a bizarre case.

On the one hand the Court declared that the MHRA defines “sexual orientation” as including “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness,” therefore suggesting that a transgender individual may make out a potential claim under the Act.  However the Court then went on to argue that the employee had failed to establish that she had a right to use the bathroom designed for use by her biological gender and therefore her sexual orientation claim failed. Logically the case made no sense–the case was not about a transgender person wanting to use the bathroom designed by her birth gender and whether she had a right to use it. Goins is ripe for reversal and that too in part explains the reasons for the Bathroom bill.

Overall, there are strong reasons to think that House Republican Bathroom bill is legally suspect for several reasons at the federal and state level.  One should not let false claims of privacy  trump civil rights.  Prejudice has no place in the bathroom.