Mark R. Howard
Division of powers
How much latitude for local governments?
Earlier this year, the city commission of Charlotte, N.C., passed an ordinance that extended existing state antidiscrimination protections to include discrimination based on sexual orientation, gender expression and gender identity. Most notable, the law extended the right of transgendered people to use the bathroom of their choice at private businesses and at all public accommodations — Charlotte had already adopted the policy at city-owned facilities.
The ordinance reflected several years’ worth of lobbying efforts by LGBT groups and Charlotte’s desire to position itself as a 21 stcentury, business-progressive city. It was also, in part, a political provocation: Most states, including North Carolina, have laws or provisions in their constitutions that reserve certain powers for the state legislature and prohibit local communities from actions that infringe on the state’s powers. The city had good reason to think the state legislature would view the new law as an overreach.
Indeed. The North Carolina Legislature responded with the now-infamous HB2 legislation that, among its provisions, requires people with male genitalia to use bathrooms for men, and people with female genitalia to use women’s bathrooms. The resulting political firestorm has cost millions in lost business and shredded, for the time being, the state’s — and with it, Charlotte’s — reputation as business-friendly.
These kind of fights are becoming more common around the country as the political and social divide between urban areas and their states widens. State governments, which once functioned as the “laboratories of democracy,” are seeing that role usurped by local communities that are more diverse, more dynamic and less conservative.
The national narrative for the North Carolina story has been reduced to intolerant-legislature-squashes-progressive-local community- over-LGBT-issues, but the real issue, I believe, involves the division of power between the state and local communities. The public may be fixated on the bathroom, but overall, the HB2 law seems to be aimed squarely at asserting the state’s authority and reminding local communities about who’s in charge.
Part 2 of HB2, for example, standardizes policies across the state in matters involving employment. It prohibits local governments from creating their own laws relating to wage levels, benefits, leave or other employment conditions at private businesses in the local communities. Part 2 seems meant to preclude cities or counties in North Carolina from applying labor-related requirements like living wage ordinances or sick leave laws to all private businesses in a community.
The relevance to Florida in all this is that similar fights between the state and local communities are taking shape here.
This summer, the city of Miami Beach passed a minimum wage ordinance, initiated by Mayor Philip Levine, that raises the minimum wage for all businesses in the city to $10.31 in July 2017 and then step-wise to $13.31 by 2020.
Levine positioned the law as a progressive merit badge for his city — a leader, he says, “on progressive causes such as protecting LGBT rights, protecting our environment, and ensuring a fair wage for workers.” (It also carried few political risks, since many small businesses in Miami Beach already pay more than the state minimum wage; most of the impact will fall on hotels and chain restaurants in the best position to afford the increased labor costs.)
The ordinance, like Charlotte’s, was a provocation — aimed at the Florida Legislature. Supporters of the Miami Beach ordinance say it’s allowable under a 2004 constitutional amendment that established a statewide minimum wage. They’re betting that someone, possibly the state attorney general, possibly a group like the Florida Retail Federation, will sue to invalidate the law. And they’re betting that a court will find that their interpretation of the 2004 amendment will trump a 2005 state law that expressly bars local governments from establishing their own minimum wages for local businesses or requiring benefits not mandated by state or federal law.
Several attorneys I spoke with disagree pretty strongly. They don’t find anything in the amendment that preempts the legislature’s authority to limit how far local communities can go with wage ordinances that involve private businesses.
Even if he loses in court, of course, Levine — a rising political star in the Democrat Party who’s taken a very businesslike approach to running his city — will gain plenty of publicity as an advocate against wage inequality.
There are good reasons for local communities to attempt to be more inclusive and to search for ways to address income inequality. But there are also good reasons for a state to have uniform rules and regulations involving labor and commerce so that businesses don’t face a different set of considerations in every community where they operate.
The point is that Florida, in resolving these kinds of conflicts, needs to avoid the kind of dynamic that played out in North Carolina: Righteous moral grandstanding vs. ham-handed authority. In North Carolina, Charlotte won the moral war, the state won the power war — but all of North Carolina lost, big.
That state isn’t any more or less tolerant now than it was before the Charlotte ordinance and HB2. The business impact has come not because the state suddenly revealed itself as a bastion of intolerance, but rather because the state and local governments couldn’t figure out a way to resolve a power struggle without making a mess of it.