Today Governor McDonnell reversed his long-held position that only the General Assembly possesses the authority to add "sexual orientation" to the list of categories protected against discrimination in state government employment. After having, as Virginia's Attorney General, advised his predecessor that an executive order extending employment protections to gay and lesbian Virginians with state jobs was not permitted under the law, McDonnell today issued a similar -- if not stronger -- executive order doing precisely that.
McDonnell's order comes on the heels of a widely-criticized letter sent by the new attorney general, Ken Cuccinelli, which told state colleges and universities that they could not include sexual orientation in their non-discrimination policies -- neither formal nor informal policies.
I'm divided on this issue because, as far as Virginia statutes go, Attorney General McDonnell was right on the law and wrong on policy. Now Governor McDonnell is wrong on the law and right on policy. I believe, as Attorney General McDonnell did, that the General Assembly had to act in order to expand Virginia's employment non-discrimination protections.
It's a mixed bag, to say the least.
A few weeks ago, I testified before the state Senate's Committee on General Laws and Technology in favor of SB66, a bill introduced by Senator Donald McEachin that would have added sexual orientation to the protected categories. I noted then that "there is no rational justification" for excluding sexual orientation from a broad anti-discrimination policy. Indeed, the committee members who voted "nay" offered no argument to explain their votes.
That bill later passed the state Senate -- a historic first for this type of legislation -- but it was killed in a House subcommittee, again with no Delegates offering an argument against it.
Just before that House vote, I spoke at a news conference at the State Capitol, along with Senator McEachin, Delegate Adam Ebbin (D-49), and other supporters of the bill. You can see the complete event below. (My remarks come in the second segment.)
In Part I, Jon Blair of Equality Virginia introduces the first speaker, former Secretary of Administration Viola Baskerville and offers some remarks of his own. This segment also includes remarks by Glen Pond of the Virginia Governmental Employees Association and Patricia W. Cummins of the American Association of University Professors.
My remarks (representing the Republican Liberty Caucus of Virginia) open the second segment (Part II), which also includes comments by Andres Tobar of the Virginia Coalition of Latino Organizations; Irving Taylor of AARP Virginia; Ben Greenberg of the Virginia Organizing Project; Falls Church city council member Lawrence Webb; and Delegate Adam Ebbin. Note that I make clear that, if SB66 applied to the private sector as well as the public sector, I would oppose it -- as would the RLC-Virginia.
In Part III, State Senator Donald McEachin (D-9), chief patron of Senate Bill 66, speaks to a gathering of journalists and activists to explain why the bill is needed. McEachin answers questions from the Associated Press, Virginian-Pilot, and other news organizations. The news conference ends with a few announcements by Jon Blair of Equality Virginia.
In his answer to a question, McEachin took a cheap shot at Governor McDonnell, suggesting that he had created an atmosphere conducive to protests by the virulently anti-gay (and clearly insane) members of the Westboro Baptist Church (the people behind godhatesfags.com). This was uncalled for, since the Phelps clan also held protests in Virginia during the administrations of Tim Kaine and Mark Warner, often demonstrating at the funerals of soldiers who lost their lives in service to our country.
Getting back to today's announcement by Governor McDonnell, it's noteworthy that he asserts in his executive directive that the rights of lesbian and gay people are protected by the U.S. Constitution. He says:
The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons.(Andrew Sullivan may have been the first to point this out, but others may have mentioned it, as well.)
Bearing Drift -- which first reported the story about the new McDonnell administration policy -- has posted excerpts of a news release from Lieutenant Governor Bill Bolling, who as Virginia's new "job creation czar" has a particular concern for issues like this. Bolling said:
“While various federal and state statutes set forth certain classifications in which employment related discrimination is prohibited as a matter of law, our policy and practice will be much broader than this. All state employees should take comfort in knowing that we will not tolerate employment related discrimination in any form or for any reason, including sexual orientation.”What is troubling is the terse response by Attorney General Ken Cuccinelli, who -- if you read between the lines -- seems to have no intention of enforcing the governor's executive directive. Here is the complete comment by Cuccinelli:
I applaud Governor McDonnell for the tone he is setting for the Commonwealth of Virginia. I will remain in contact with the Governor and continue to work with him on issues important to Virginians. I expect Virginia’s state employees to follow all state and federal anti-discrimination laws and will enforce Virginia’s laws to the fullest extent.Since neither state nor federal law recognizes "sexual orientation" as a category subject to employment non-discrimination protection, then Cuccinelli can "enforce Virginia's laws to the fullest extent" without including gay and lesbian employees in that protective umbrella. His words sound expansive but, in fact, they offer nothing more than his -- and the previous Bob McDonnell's -- insistence that only the General Assembly can add sexual orientation as an anti-discrimination category.
As I noted before his election as governor, Bob McDonnell has matured on issues regarding gay and lesbian Virginians since his notorious reply to a reporter that he could "not recall" whether he had ever engaged in oral sex (or any violation of Section 18.2-361 of the Code of Virginia -- still on the books despite Lawrence v. Texas).
Although I agree that Virginia statutes do not currently allow an expansive sort of non-discrimination policy for Virginia state employees, I believe this is a quirk in the law that should be scrutinized and reversed. For me, the legal standard should not be "unless it is permitted, it is prohibited." Notwithstanding the General Assembly's pride of place in the making of policy, the standard should be: "Anything not prohibited is permitted."
In his new executive order, Governor McDonnell acknowledges that latter, and better, standard. Let's hope his legal judgment -- as Governor, not as Attorney General -- holds up in both the court of public opinion and the courts of law.
Update: There is a distinction between an "executive directive," which is what Governor McDonnell issued with regard to sexual-orientation non-discrimination policy, and an "executive order." An "executive directive," first used by Governor (now Senator) Mark Warner is a statement of policy without the force of law. An "executive order" has the force of law. The difference between the two provides McDonnell with the wiggle-room he needs to deny that he has reversed the position he held as Attorney General. Reporter Rosalind Helderman has a more complete explanation in Friday's Washington Post.
Also, it is noteworthy that McDonnell's decision is coming under attack from the religious right, including the Virginia Family Foundation, Delegate Bob Marshall, and one-time lieutenant governor candidate Michael Farris. This suggests that McDonnell issued his directive cognizant of the political risk of alienating part of his base, something for which he deserves credit.
Side note: Victoria Cobb of the Family Foundation coins a new word in her news release: "unimmutable." Kind of like non-unchanging, I suppose. Here's the quotation, which was distributed by email in a FF "Information Alert" yesterday but does not appear to have been posted on the Family Foundation's web site:
We absolutely agree with one statement in Governor McDonnell’s directive – that state employment should be based on “qualifications, merit and performance,” regardless of one’s immutable or unimmutable characteristics.(Just to clarify, the opposite of "immutable" is "mutable.")
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