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VA AG Cuccinelli to universities: “you must allow discrimination against gays”

Timothy Kincaid

March 5th, 2010

Several colleges and universities in Virginia have policies against discrimination on the basis of sexual orientation. But Virginia Attorney General Ken Cuccinelli II has a unique interpretation of law: unless you are specifically instructed by the legislature to avoid discrimination against a group, you cannot voluntarily choose to do so (Washington Post):

“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,” he wrote.

But is this the same as, “you must allow discrimination against gays?” In Virginia, yes.

Currently the political and cultural attitude of this state are extremely hostile to gay residents and visitors. And even in the most encouraging of states, there will be administrators or teachers who believe that their own personal religious beliefs entitle them to mistreat others.

There is no question whatsoever that there will either be deans who make or deny promotions based on sexual orientation, teachers who will assign work that is intended to advance an anti-gay viewpoint, or other school based preferences and punishments that are doled out based on anti-gay animus. It is almost a certainty that administrators will deny housing, funded organizations will deny membership, and fraternal organizations will throw parties with themes that mock gay students.

And this will increase. Because statements like those of Cuccinelli not only give permission for anti-gay discrimination, they encourage such behavior and provide it with the imprimatur of the state. And the educational institutions will be powerless to oppose such actions.

This decision of Cuccinelli does not stand alone.

Last month, newly elected Governor Bob McDonnell (R) signed an executive order that removed non-discrimination policies for gay state employees. He argued, similarly to Cuccinelli, that unless gay folk were specifically protected by the legislature then he had no “authority” to include them.

These arguments are specious. Protections are not always limited to those itemized, but can be (and have been for decades) administered where they were needed.

These acts are not based on principle, but prejudice. I have little hesitation in asserting that McDonnell and Cuccinelli oppose non-discrimination policies against gay people primarily because their sympathies lie with those who wish to to discriminate.

Virginia is a very hostile state, at present. Gay people, and their friends, family, coworkers, and those who love them, should avoid setting foot in the state whenever possible.

Comments

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Ben in Oakland
March 5th, 2010 | LINK

“Virginia is a very hostile state, at present. Gay people, and their friends, family, coworkers, and those who love them, should avoid setting foot in the state whenever possible.”

I’ve felt that way for a long, long time. My ex-lover was from Virginia, and he said it was beautiful, but with little else to recommend it.

It used to be that you could do more time in Virginia for sodomy that you would do for murder.

Quo
March 5th, 2010 | LINK

You complain about “teachers assigning work that is intended to advance an anti-gay viewpoint.”

Are you bothered by this because the viewpoint being promoted is anti-gay, or simply because any particular viewpoint is being promoted? I’m guessing it’s the former. Me, I wouldn’t worry about it. Higher education in the United States is generally mindlessly politically correct and pro-gay, so if an anti-gay point of view is being promoted somewhere, that can only be a good thing. It might help produce a little more balance.

Priya Lynn
March 5th, 2010 | LINK

Right Quo, whenever something good is done we should hope someone does something evil so there is balance.

Frijondi
March 5th, 2010 | LINK

Even where there are strong non-discrimination policies, or actual laws on the books, people find a way to discriminate — it’s not that hard. You can discriminate against gays in San Francisco if you try. Most bigots have figured out which excuses will fly, and which ones won’t; they’re careful what they say, and the EEOC has not yet found an effective way of dealing with this. In fact, I’m not sure they want to. (For example, they generally avoid doing audits to determine whether or not there’s a consistent pattern of preferential hiring, etc.)

Cuccinelli and McDonnell are really saying — as you point out — that they not only want individuals to be able to discriminate, they want to send a message of intimidation to gay people in general.

GreenEyedLilo
March 5th, 2010 | LINK

My mother lives there; one reason why we dread visiting her is because my wife and I know our marriage and our legal paperwork will not be honored if, Gods forbid, something happens while we’re there.

Larry P.
March 5th, 2010 | LINK

That’s a great point Quo. And maybe a KKK curriculum and some anit-semetic teachings would help to balance evrything that’s taught about the black and Jewish communities. Brilliant.

Scott
March 5th, 2010 | LINK

Virginia is for haters.

Quo
March 5th, 2010 | LINK

Also, regarding those “parties with themes that mock gay students” – do you really consider that so big a deal? If the fraternities aren’t physically injuring other people or their property, why shouldn’t they be allowed to “mock gay students”? Homosexuality deserves to be mocked, and humour is dead if we’ve reached the point where this is not allowed.

Rich R.
March 5th, 2010 | LINK

I find this so hard to believe let alone understand how such things are possible in the US, I live and Canada and don’t fully understand how politics in the US works but to me such an attack on freedom is so un-Amercian and frightening too that the only super power, our friend and neighbour could find such laws legally acceptable. The US is supposed to be the land of the free but to be honest from an outside point of view it seems the ideal of freedom has been lost tin many regions. How can a state forbid a non-criminal policy of any sort of institution or business? Why should every American have to be the same? When it comes to sexual minorities at least there seems to be almost no freedom in much of the US from what I see and read and I admit I probably remember bad stories more than good ones but even still its disheartening. I also don’t understand how your constitution allows citizens a vote on minority equality rights. I’ve always been under the impression every democratic state was supposed to protect minorities from the ill will of the majority but obviously that’s not the case. Its just plain wrong that minority equality rights are subject to a vote by the general population. I hope I don’t offend any American but from outside it doesn’t seem that the US is the same place we’ve been taught to believe it is, the strength and viciousness of your right wing is hard to believe and frightening to me since US political trends often cross the border northwards. Forbidding schools to oppose discrimination against LGBT folks is just unbelievable. I’m sure you guys will one day achieve legal equality but I would’ve hoped it’d come easier to you and that you wouldn’t face such vicious opposition. In Canada we had it relatively easy, we have a Charter of Rights that forbids discrimination and its the highest law of our land so all we had to do was fight it out in the courts for equality rights including marriage and since it was federal the opposing provinces had no choice but to go along with it. As you can imagine the Charter of Rights is well loved and respected in Canada since it helps out pretty much everyone in some way. Anyways I hope this is fought and this law is removed, it seems like a constitutional issue to me. My apologies if I offended any American, that was not my intent.

Gueney
March 5th, 2010 | LINK

Umm, balance? You mean there isn’t a heavy weighing of anti-gay, anti-black, anti-woman, anti-Muslim sentiment all around in this country already (etc.)? We should embrace teaching intolerance because it provides some sort of fairness to teaching, learning, and the general quality of life and the pursuit of happiness for all Americans? Hmm, gotta ponder that one some more.

Eddie89
March 5th, 2010 | LINK

Well, now I actually feel just a little bit better that I live in Arizona (for now) and not Virginia.

But, with the active hand of the Center for Arizona Policy writing a lot of the legislation in this State, we will soon surpass Virginia.

Martin
March 5th, 2010 | LINK

Didn’t SCOTUS address this when they ruled on Colorado’s Amendment 2 (Romer v. Evans, 1996)? Amendment 2 would have made it illegal for municipalities, etc. to ban discrimination on the basis of sexual orientation. SCOTUS ruled that Colorado couldn’t single out a class of people in this way. The court didn’t rule that the state had to include sexual orientation in its list of protected classes, but it didn’t rule that the state couldn’t pre-empt it. Why should Virginia be any different?

Alternatively, how soon before someone in Virginia insists that discrimination against gay people isn’t just permissible, but required?

Makes me glad I didn’t move there when I had the chance.

johnathan
March 5th, 2010 | LINK

Eddie89, as a Tucsonan, I wholeheartedly agree with you. I am, after reading this, SOMEWHAT proud to live in Arizona, but not much. There is a plethora of legislators in both the House and Senate whose main purpose in life is to see the LGBT community eradicated. However, as of now, the Arizona political powers to be have not had the successes as those in other states.

Burr
March 5th, 2010 | LINK

Hmm good point Martin about the constitutional implications..

Quo also has a point IMO that mocking parties and assignments with anti-gay viewpoints really aren’t the major concerns of this. Preventing discrimination shouldn’t be center around onerous speech codes. Let the open criticism that comes with academic freedom handle those matters.

Dennis
March 5th, 2010 | LINK

We see some of the Anglican Churches joining the African church because the US Communion ordained a gay bishop. Perhaps the next step for Virginia to leave the Union – AGAIN – and become part of Uganda.

David
March 5th, 2010 | LINK

“Homosexuality deserves to be mocked”

Really? So then heterosexuality deserves to be mocked as well. And why stop with innate qualities like sexual orientation, and claim that any racial category deserves to be mocked, all gender categories, all age categories, all disabilities, abilities, diseases, talents – any trait at all deserves to be mocked.

Including, Quo, you.

Right?

How about this: with the exception of yourself, Quo, no one deserves to be mocked, ridiculed or denigrated.

Frijondi
March 5th, 2010 | LINK

@Dennis. Maybe those Baptists who were kidnapping Haitian “orphans” could start helping adult Virginian homophobes relocate to Uganda; we could trade them for the gays. It would be a win-win situation, especially since the Union army is overextended right now.

Rebecca
March 5th, 2010 | LINK

@Martin: My first thought as well. This has got to be illegal.

Brian
March 5th, 2010 | LINK

To Rich from Canada, no offense taken. The truth is many of us look to Canada and hope someday we will catch up to you. Sadly, the US is in severe decline. Perhaps not a totally bad thing. Scapegoating and intolerance are a favorite pastime here and always have been. The truth is, you have liberty, equality and freedom in Canada while down here we just talk about it but really it does not exist.

AJD
March 5th, 2010 | LINK

Rich R.: I’m not offended in the least.

You see, America prides itself on being a land of freedom, democracy and equality, but in reality, that has only been consistently true throughout its history if you have been white, male, (Protestant) Christian and heterosexual. Otherwise, America is a majoritarian tyranny with oppression enforced not by dictators but by a plurality of the populace, backed by elected officials. This is why black people were slaves for the first 90 years of the country’s existence and subject to segregation for another 90; women couldn’t vote for the first 144 years; Native Americans weren’t citizens for the first 145 years; Chinese were banned from immigrating; Japanese-Americans were put in internment camps; and gays are banned from marrying in 30 states, can be discriminated against in 29 and are barred from serving in the military.

Don’t get me wrong: Canada has its own history of legally mandated bigotry also, but Canada has never proclaimed itself the “leader of the free world,” and it has more than made up for problems in its past. And though you have no shortage of ignorant rubes in your country, you somehow manage to keep them from wielding disproportionate influence over the country, even when the Tories have a majority in Parliament.

I know it’s complete heresy for an American to be saying this, but a big problem we have is that we simply take “free speech” a little too far by extending it to hate speech, which most Western countries (including yours) ban in some form or another.

Invoking the notion of a “marketplace of ideas” to protect hate speech is sort of like a flat income tax: An across-the-board 15% tax on income might seem fair, but it doesn’t take into account that a 15% tax deprives a single waitress making $20,000 a year and raising a kid of a lot more spending power than it does someone who makes $500,000 a year. Likewise, it may seem fair to say that religious-right homophobes ought to have as much a right to say their piece in the “marketplace of ideas” as gay-rights groups, but that ignores the fact that the religious right represents powerful people seeking to oppress others (i.e. homophobes), while gay people have significantly less power and in many cases are utterly powerless, making the “free” hate speech of the religious right little more than a tool to perpetuate oppression — if I were a professor at Virginia Tech, my ability to speak out against homophobia would mean little if the homophobic dean of my college could deny me tenure or even fire me for being gay.

This, in short, is why progress on civil rights in this country has been so painfully slow and hard to achieve relative to our supposed status as a beacon of freedom and democracy. It’s because it is and always has been rigged to serve the interests of the powerful and the privileged, like the rich, straight white guys who founded the country to begin with.

Uki
March 6th, 2010 | LINK

“Virginia is a very hostile state, at present. Gay people, and their friends, family, coworkers, and those who love them, should avoid setting foot in the state whenever possible”

That statement is so not right.

Not everyone can get out of the state. And not everyone WANT to get out of the state. LGBT advocates and activists should put more efforts to states such as this, instead of focusing too much on a more friendly state.

If you turn our backs against this state, then those LGBT who are receiving discrimination in the state that is being neglected by LGBT rights advocate, won’t be visible.

John
March 6th, 2010 | LINK

Indeed, Uki. I for one own a house in Virginia. How would I even be able to sell it, afford the expense of relocating, finding a job in this bad economy, etc. all in an area I know nothing about? Give up all I’ve worked for, for what? No. Virginia is slow when it comes to social change, painfully slow at times, but eventually will come around. Leaving is not an option.

Geekydee
March 6th, 2010 | LINK

So, in this free country, I can go ahead and start a petition against same sex marriage (and pass laws against same), but not one against interracial/interfaith/interability (ya know, can’t have the able-bodied mixing with them disabled folk)/inter-whatever marriages? And just why not? I mean we gots free speech, ain’t we? Has anyone even tried to point out the hypocrisy involved in their acts? Maybe we should do just what I suggested, and try to create a petition that would be seen as anti-exogamy or anti-whatever and just replace the words “same sex” with “interfaith” or “inter-racial” or anti-take your pick. What makes one hate speech and discrimination and the other not? Answer? There is not one bit of difference; hate is hate, plain and simple. Until people figure that out, they will always be haters.

Please note, I do not advocate the hate implied in the farcical statements above, but feel the arguments should be attached to the clue bats to be used on the idiots of the world. Yes, I am trans so I know the hate from this side of the fence and writing some of the foregoing kinda made me ill, but felt that the sarcasm inherent in the statements would hopefully drive the points home for some. Maybe we should make a commercial for the “Hate State of Virginia” and parody the vacation commercials from there?

(Mod: If there are any who feel offended, please remove this post)

dman
March 6th, 2010 | LINK

I live in south africa where protection is the norm even if it is not alwyas in practice. But my family has been in virginia since 1720 and I was more than happy to leave. I went to vcu for two degrees and had no issues but I did take an online course at a community college 2 years ago and faced hate speech on the online boards etc, the lecturer did nothing even whemn I complained. The community college system does not have those anti discrim clause to include orientation and believe me they do allow discrimination. Yes virgina is for haters.

Jerry Sloan
March 6th, 2010 | LINK

Actually the VA AG’s opinion is very similar to a CA appeals court decision that was upheld by the CA Supreme Court in the mid-90s that wiped out all of the anti-discrimination ordinances passed by many CA cities when the court ruled the cities didn’t have the authority to pass such laws as the legislature only has the power to make such laws.

The ruling caused us to start getting court rulings and other measures codified by the legislature. This was very successful while Gray Davis was governor.

Karen
March 6th, 2010 | LINK

Yes, moving isn’t always an option. We live in Virginia. This completely disgusts me, even though it doesn’t affect me as directly as it does my lgbt friends. But while moving isn’t a realistic option getting to work is.

Regan DuCasse
March 6th, 2010 | LINK

Quo, I find it repulsive to mock homosexuality.
Why?
Because actions don’t end at mocking. Mocking becomes merciless bullying and that bullying and violence has taken some very tender young lives recently.
Such as in the case of Lawrence King, Carl Walker-Hoover and Jaheem Herrera.

YOU have the luxury of sitting back on your weak and contrary little ass, but the war on gay people has immeasurable casualties in which respect must be paid and work done to change things so that people like Lawrence King and so on can live their lives to their full potential.

I don’t expect everyone to accept gay and trans folks, but I DO expect this country and it’s laws from state to state to recognize the humanity and civil participation and responsibility that said people inevitably and inescapably have.

We know that there are plenty of things that if unacceptable to one’s religion, they STILL recognize that OTHERS have the rights and freedoms to have it.

There is a difference between religious freedom, and religious entitlement. Of which the latter doesn’t exist and has many human righs abuses in it’s wake.

So let’s be clear Quo, oh YOU of the intellectual dishonesty and disconnect and cowardice:

Society has ALWAYS been bettered by equality, equal standards for everyone and respect for it’s law abiding and contributing citizens. Period.

You got nothing but a dissenting opinion. And your opinion, counts for zip in the light of that historical, imperial, political and societal fact.

This country should continue to strive towards it’s better self and it’s own mission statement.
That there are a couple of Neanderthals with apparently nothing ELSE to do but slam ‘teh gays’, again…means that their moral compass points is pointing to their own navels.

And so is yours.

ZRAinSWVA
March 6th, 2010 | LINK

Leaving is definitely not the best option for me, even though I work for one of those institutes of higher education in Virginia: I’ve worked too hard and too long to become vested in my retirement; in HR circles, they call my situation the ‘golden noose’. However, if the right opportunity came my way, I’d be gone, regardless.

I do think, though, that the state will find that higher education won’t back down as easily as they think. All have lawyers on their staff, and even though these lawyers operate under the auspices of the State Attorney General, from what I’ve seen their loyalty is to their institution. And these institutions–including most private universities–are fiercely protective of their climate and culture.

For the most part, I do love Virginia. The people are, by-and-large, friendly and engaging–even the rustic, less well-educated population that surrounds my university. Of course, this ‘bubble’ of nice, more open-minded people is very much overborne by the larger populations in the eastern part of the state–including Liberty University. (sigh)

Fred in the UK
March 6th, 2010 | LINK

Martin, as you correctly point out in Romer v. Evans SCOTUS ruled that a state simply could not exclude a particular class from any and all anti-discrimination protections. The Virginia Attorney General is saying that public institutions cannot have or, at least, enforce non-discrimination policies protecting sexual orientation (or similar) without specific authorisation of the General Assembly. Logic, to me, would dictate that therefore public institutions could not protect any particular class without specific authorisation. Although a narrow interpretation of the Attorney General’s words clearly seems to fall foul of Romer v. Evans, I am not sure the same is true of this broader interpretation.

However would a Virginia Court agree with the Attorney General in practice? Suppose a public institution were to fire someone for breaching their non-discrimination policy, and to did so in a fair and reasonable manner. Suppose also, that had the discriminating act(s) in question been on the grounds of race that the institution’s actions would have been legally sound. If, however, the discriminating act(s) were on the grounds of sexual orientation, would the Court find that the institution had broken the law in firing this person?

The Lauderdale
March 6th, 2010 | LINK

I bailed on Virginia. I hoofed it, fled the state. I just go back to visit my parents. What am I contributing to making Virginia and states like it a better place for gay people and folk of good will? Honestly, a big fat nothing. I have a lot of respect for the people who stay and try to make it work.

John
March 6th, 2010 | LINK

Quo,

What experience do you have to say that American higher education has become so PC? Have you studied in the US? Have you even visited the US? or Virginia in particular?

In previous posts you have made it very clear that you are not an American and do not live in the US. Like “dman,” you live in South Africa.

By the way, for all of Virginia’s faults, they aren’t so warped as to agree with your impassioned arguements that parents should be able to have their children subjected to sexual abuse. No state government anywhere in the US is that twisted and disturbed.

ZRAinSWVA
March 7th, 2010 | LINK

Quo wrote, “Higher education in the United States is generally mindlessly politically correct and pro-gay”.

Uhm. No. Wrong. From my personal experience, Institutes of Higher Education–or at least the ones that are not affiliated with a religious organization–teach deductive reasoning and thoughtful exploration, terms not normally associated with ‘mindlessly politically correct’. On our campus we embrace the diversity of opinion and welcome the discussion of opposing views, all of which make us stronger.

And Quo, you may mock anyone for any reason you choose, but you do so at your own peril. However, I doubt you have the chutzpah to do so in person.

Christine
March 7th, 2010 | LINK

There are two issues here that have not been addressed.

1) Virginia is a “Dillon’s rule” state
(http://en.wikipedia.org/wiki/John_Forrest_Dillon#Dillon.27s_Rule) – which does limit what local governments can do without authorization from the Virginia General Assembly (state legislature). Even so, ACLU Legal Director Rebecca Glenberg said, as reported by the Associated Press news story out of Richmond, VA “that state institutions are bound by U.S. Supreme Court decisions not to discriminate based on sexual orientation.”

2) The second issue here hypocrisy, and neither Gov. McDonnell nor A.G. Cuccinelli have been called on it yet:

I doubt that Cuccinelli has written a similar letter to his Republican Governor Robert McDonnell (graduate of Pat Robertson’s Regent University), demanding that he revise his recently issued executive order. McDonnell left “sexual orientation” out of his executive order banning some forms of discrimination against state employees (rescinding what was the policy of the two previous Democratic governors, Mark Warner and Tim Kaine) – using the same logic as Cuccinelli to exclude sexual orientation. However, McDonnell included “political affiliation” and “veterans” in his executive order – neither of which (according to Cuccinelli’s statement in the same AP article referenced above that Virginia state law bans discrimination only based on “race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability.”

Governor McDonnell and Attorney General Cuccinelli, your animus is apparent to everyone. Shame on you.

Christine
March 7th, 2010 | LINK

There’s a third issue:

There are a few places in Virginia where there are city or county ordinances that ban discrimination based on sexual orientation.

I’ll bet Cuccinelli goes after them next.

Emily K
March 7th, 2010 | LINK

guys, ignore the Quo-troll. The Quoll. He’s a said little gay man who wishes he wasn’t gay but visits bath-houses to satiate his closeted repressed desires. He claims gayness can be cured but he can’t even cure his own. homosexuality – no sexual orientation – “deserves” to be mocked. But Quo’s version of homosexuality does. However, let’s refrain from attempting to talk to him.

ZRAinSWVA
March 8th, 2010 | LINK

Quoll? I like that! Thanks, Emily K, for brightening-up my Monday morning!

werdna
March 11th, 2010 | LINK

Looks like McDonnell has changed his position (again):

In an executive directive issued late Wednesday, Gov. Bob McDonnell seemed to contradict a letter sent by the state attorney general to public colleges and universities last week directing them to strip protections for gays and lesbians from their nondiscrimination policies.

“I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance,” McDonnell’s directive stated.

A companion letter sent to all state employees went further, stating that “independent agencies and state supported colleges and universities should likewise adopt a similar standard of conduct.”

Sullivan highlights a truly remarkable sentence in the new executive directive:

Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

Isn’t that the gist of Boies and Olsen’s argument in Perry? What the heck going on in Virginia?

Joanie
August 6th, 2010 | LINK

I knew there was some reason why I decided to go to PA for college instead…

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