What Everyone Missed About the NC Bathroom Law (Including Me!)

Update (12/9/16):

Since the first minute I heard of Georgia’s religious-freedom bill, I figured it was a trap. Get everyone riled up about another southern state showing its prejudice and get the national populace, or maybe even the federal government, to make sure that no one anywhere is permitted to enact anything so offensive. As DOMA clearly demonstrated, if you want to cram down your social legislation on subsidiary governments, as the federal Defense of Marriage Act did to states, get ready for an equal and opposite federal reaction like the Supreme Court ruling that states could not deny gay marriage. The prevailing paradigm at the top is secular humanism and if there’s going to be lasting social legislation, that will be its endpoint no matter how it gets started. As a libertarian, however, I don’t want social legislation of either variety, and I wouldn’t need it.

Pure libertarian principles would solve these problems before they arose…don’t have federal spousal benefits (which were the justification for both DOMA and its demise); don’t have government-bestowed marital privileges; don’t have government licensing of marriages; don’t let government tell you what you can or can’t do on your own property or in your own church or in your own club or any other private institution; don’t let government spread across institutions so that vital centers like airports and universities are public domains; don’t let government legislate with whom you can transact or not transact nor what you may buy and sell; and always employ the principle of subsidiarity, which demands that the smallest social unit capable of handling a problem handle the problem, so at least if the government oversteps these bounds you can step in–or step out.

The principle of subsidiarity is the essence of federalism and the American Experiment: first empower the self, then the family, then the town, city, county, state and as a last resort, the federal government–a last resort clearly defined by the 18 enumerated powers in the Constitution. That’s where North Carolina’s law really loses me…

A Georgia legislator wrote a defense of the religious freedom act in today’s Wall Street Journal. He laments the backlash the law received, which is a little baffling given how predictable it was. (I might even go so far as to say he played right into their hands.) The law was vetoed by Governor Deal, as promised from the start, but the national attention and backlash it started gained momentum and moved on to North Carolina’s recently enacted law defining who may use which bathrooms. On my show Saturday, I pointed out that private property owners should make the call on who uses their bathrooms–and it should all be private property! But what I didn’t point out, because I hadn’t realized it until I read the article in the Journal today, was that the North Carolina law banned subsidiary governments from making their own laws on the matter. Here’s the article and the quote:

Why Are Companies Taking Sides Against Religious Liberty?
Policies intended to encourage inclusion have curdled into antipathy for people of faith.

North Carolina finds itself targeted over a common-sense new law blocking cities and counties from forcing businesses to give transgender people access to the bathroom of their choice.

I’ve seen disturbing signs of what I’m afraid will turn into a trend of state governments restricting lower governments from making their own laws. All I’ve seen so far is laws banning bans on plastic bags or banning bans on GMO foods (actually, Congress is working on that for the whole country.) These are laws that, for seemingly practical reasons, might appeal to the right–but that’s the trick. To the extent those on the right are for small government and individuality, they would be the natural defenders of the principle of subsidiarity. Clever central planners, therefore, might start with right-friendly legislation, such as banning cross-gender bathroom laws, to chip away at the power of local government and local control without anyone even noticing that that is the real underlying principle at stake. That’s what concerns me most about the North Carolina law–that, and the fact that no one noticed.

Update (12/9/16):

Ohio Lawmakers Pass Bill Forbidding Cities From Raising Minimum Wage
Move comes amid growing pressure in other states to raise wages for workers

Ohio lawmakers passed a measure Wednesday to block cities from raising the local minimum wage above the state level, amid growing pressure in other states to raise such wages for workers.

The Ohio measure was included in a broader bill passed by the Republican-controlled legislature amid a flurry of legislative activity as the session winds down.