Virginia political leaders mourn passing of Supreme Court Justice Leroy Hassell
February 9, 2011 1:53 PM MST
On February 9, the Virginia Supreme Court announced the death of one of its members, Justice Leroy Rountree Hassell, Sr., who had served on the state’s top bench since 1989. He also served as Chief Justice from 2003 through the end of last month.
Born and raised in Norfolk, where he attended Norview High School, Hassell was a graduate of the University of Virginia in Charlottesville as well as of Harvard University Law School. He was 55 years old at the time of his death.
Governor Bob McDonnell has ordered that all flags at local, state, and federal buildings in Virginia will be flown at half-staff until Justice Hassell’s burial.
Calling Justice Hassell “a personal friend who will be greatly missed,” Governor McDonnell recalled “numerous private lunches” with the judge, in which he displayed “keen insights into the human spirit.”
'Brilliant legal mind'
With Hassell’s death, McDonnell said, “Virginia has lost a brilliant legal mind, accomplished jurist and devoted public servant.”
Hassell, McDonnell added, had passion and drive that led to his becoming a state Supreme Court justice at the age of 34, “one of the youngest justices in the history of the court.”
McDonnell noted that when Hassell became the first African-American chief justice in 2002, it was “a monumental achievement for Virginia and for him.”
The Governor praised the Hassell for “standing his ground on principal in the court, making his concerns known in an effort to improve the judicial system.”
'Well respected by all'
Lieutenant Governor Bill Bolling also issued a statement, saying in an email message:
“Chief Justice Hassell’s impact on Virginia’s judiciary will be felt for many years to come. As the first African-American Chief Justice of the Virginia Supreme Court, Chief Justice Hassell played an important role in continuing our state’s progress toward a more perfect union. He was well respected by all who knew him and worked with him.” 'Culture of merit and justice'
Attorney General Ken Cuccinelli said in his own statement that “Chief Justice Hassell played an important role in helping our generation look beyond the racial lines that separated us, and toward a culture of merit and justice that unite us. He was both generous and resolute in his determination to help his fellow man. Virginia is greater and stronger because of his example, and he will be greatly missed.”
According to the Governor's office, Justice Hassell's body will lie in state in the capitol building in Richmond prior to his burial. At press time, complete funeral arrangements had not been released.
Publisher's note:This article was originally published on Examiner.com on February 9, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.
Under the circumstances, it seems both odd and wrong to chide Virginia Governor Bob McDonnell for being two-faced, especially given that I like the result.
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.
At the request of Lieutenant Governor Bill Bolling, Virginia Attorney General William Mims has issued a two-page opinion on the constitutionality of the health care legislation (HR 3590) currently under consideration by the U.S. Congress.
The substantive text of his opinion letter follows (footnotes omitted):
I write in response to your recent letter concerning the “Patient Protection and Affordable Care Act,” pending in the Congress of the United States. You inquire about the constitutional validity of two provisions. One provision would, after a period of several years, exempt Nebraska in perpetuity from increased costs associated with the expansion of Medicaid. No other state, including Virginia, is afforded similar treatment. The other provision would require every citizen of the United States to obtain health insurance or face significant penalties. I share your concerns about the constitutionality of both provisions.
The Constitution creates a Federal Government of enumerated powers. See U.S. Const. Art. I, § 8. As James Madison wrote: “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961); see also U.S. Const. amends. IX-X. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the states and the federal government will reduce the risk of tyranny and abuse from either front.” Id Therefore, to justify federal legislation, a source of authority must be located in the Constitution. Equally important, legislation may not infringe on rights provided by the Constitution. With those considerations in mind, I address your specific concerns below.
I. Mandatory purchase of insurance
Among the powers accorded to Congress is the power “to regulate Commerce ... among the several States.” U.S. Const. Art. I, § 8, cl. 3. Following the enactment of President Roosevelt’s New Deal program, the Supreme Court of the United States “ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause.” United States v. Lopez, 514 U S 549, 556 (1995) The Court has concluded that Congress’ authority s not limited to “the regulation of commerce among the states,” Ed. at 555, but further allows Congress to regulate activities that “affect interstate commerce.” Id. The Commerce Clause power is broad, but it is not without limits. In Lopez, 514 U.S. 549, the Supreme Court struck down as unconstitutional the Gun-Free School Zones Act of 1990. See also United States v. Morrison, 529 U.S. 598 (2000) (invalidating Violence Against Women Act of 1994). Although health care is an economic activity, the failure to purchase health insurance is not an economic activity. The insurance mandate is open to constitutional challenge — although it is not clear that such a challenge would succeed, given the breadth of the Supreme Court’s interpretation of the Commerce power.
II. The “Nebraska exception”
You inquire whether the Equal Protection Clause of the Fourteenth Amendment would provide a basis for challenging the Nebraska Exception. The Equal Protection Clause, by its plain terms, applies only to the states, not to the United States. U.S. Const. amend. X1V § 14. Therefore, a state could not bring a viable equal protection challenge to the Nebraska exception currently found in the pending legislation.
The Nebraska exception is vulnerable, however, on other constitutional grounds. The Constitution provides Congress with the power to collect taxes and to spend money for the “general Welfare of the United States.” U.S. Const. Art. I § 8, cl. 1. Once again, the Supreme Court has given Congress very broad latitude in the exercise of this power. See South Dakota v. Dole, 483 U.S. 203 (1987). Nevertheless, that latitude “is of course not unlimited.” Id. at 207. One of those limits is that Congress must, as the Constitutional text unambiguously commands, spend in pursuit of the “general welfare.” Id. In my view, carving out an exception for a specific state, unrelated to any policy objective other than to secure the vote of a particular senator, would exceed the bounds of what Congress may do under the Spending Clause. Where the taxing and spending is intended to effectuate a benefit for a single state, solely to gamer the vote of a particular senator from that state rather than for the general welfare, the spending at issue is unconstitutional. To conclude otherwise, would mean that the General Welfare Clause is meaningless.
This will not be the final word on this subject. I expect other states will also be weighing in on the constitutionality of Obamacare.
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