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VA Gov Issues Non-Reversing “Reversal” on Anti-Discrimination Ban

Jim Burroway

March 11th, 2010

One week after Virginia Attorney General Ken Cuccinelli (R) ordered state universities to drop sexual orientation from their nondiscrimination policies, and nearly a month after Gov. Robert F. McDonnell signed an executive order dropping sexual orientation from the state’s anti-discrimination policies, Gov. McDonnell has now reversed his position, but not his executive order.

Gov. McDonnell’s new directive states:

We will not tolerate discrimination based on sexual orientation or any other basis that’s outlawed under state or federal law or the Constitution, and if it is reported, then I will take action, from reprimand to termination, to make sure that does not occur. I believe this properly takes care of it and assures the good people of Virginia that we will absolutely not have discrimination in this state.”

Gov. McDonnell’s executive order last month dropping sexual orientation from the state’s nondiscrimination policies has the effect of law among state employees, including state universities. But Gov. McDonnell’s new directive does not. It merely states the formal position of the governor himself. This gives the Attorney General all the legal maneuvering room he needs to issue this statement “applauding” the governor’s directive:

“I will remain in contact with the Governor and continue to work with him on issues important to Virginians,” Cuccinelli’s statement continued. “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.”

In other words, Cuccinelli recognizes that the governor’s latest statement does not have the force of law, but merely “sets the tone.” As Delegate Robert G. Marshall (R-Prince William) said, McDonnell’s directive carries no force and is no more than a “press release with fluff around it.”

There is some speculation that this fig leaf was put in place to try to impress the defense giant Northrop Grumman, which is considering moving its headquarters from Los Angeles to the Washington, D.C. area. Maryland, Virginia and the District are actively competing to win the company’s favor. Northrop Grumman enjoys a 100% rating in the Human Rights Campaign’s Corporate Equality Index. Among the many considerations that Northrop is facing is that Maryland’s policies are more in line with the company’s own policies. Says Maryland State Sen. Richard S. Madaleno Jr. (D-Montgomery):

Here in Maryland, we value our gay and lesbian citizens as part of a diverse population that makes the state strong. Virginia is doing the opposite and letting its LGBT citizens — and those considering whether to move and work there — know that they and their families are unwelcome second-class citizens. And they are counting on corporations like yours not to care.

Indeed, while there are efforts in Virginia’s legislature to pass a nonbinding resolution expressing the opinion that Virginia “maintains an ecumenical atmosphere in its sexual orientation hiring policies in the private and public workforce,” that resolution would not have an effect on Virginia’s nondiscrimination law. And even that nonbinding statement, which passed in Virginia’s Senate as part of a package of incentives intended to lure Northrop and other employers, is being stymied in Virginia’s lower House.

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Lucrece
March 11th, 2010 | LINK

This country can be such a fraud when it comes to fulfilling constitutional guarantees and maintaining its moral high ground as the land of liberty, equality, and justice.

My third world “backwater” country in South America happens to share the same level of mean-spiritedness toward homosexuals as this supposedly virtuous ‘first world” nation.

Victor
March 11th, 2010 | LINK

I lived in VA for a while. The Virginians I knew, with a few, notable exceptions, had elevated discrimination to a fine art. And they do it so sweetly too, sincerely hoping their god finds a place in his heart to forgive you as they light the torch.

Frijondi
March 11th, 2010 | LINK

Since most people won’t be interested in hearing about the distinction between an executive order and a directive, this will be used to shut up anyone who wants to raise discuss the issue, even casually.

“Whaddaya mean, gays don’t have any rights? What about the governor’s directive? He just said –”

“That’s not legally binding. The executive order–”

“HE SAID NO DISCRIMINATION! THE GOVERNOR! SHEESH, YOU JUST CAN’T ADMIT YOU WERE FIRED BECAUSE YOU WEREN’T COMPETENT, AND NOW YOU WANT SPECIAL TREATMENT LIKE THAT GUY IN THE MAILROOM WITH THE WHEELCHAIR!!! YOU PEOPLE ARE ALWAYS WHINING ABOUT YOUR RIGHTS, BUT YOU GET SPECIAL PRIVILEGES WE DON’T!! JUST SHUT UP AND WRITE A FAN LETTER TO ROSIE O’DONNELL OR SOMETHING, OKAY?”

And it will be used by perky HR types to reassure jittery gay employees that they have nothing to worry about. Some will know it’s BS, but the ones who are too trusting, or too busy to look into it, or who lack the skills to do so, will be blindsided.

McDonnell knows exactly what he’s doing. He’s destroying the possibility of a public conversation at the street level. Bless Sen. Madaleno for using his voice.

lurker
March 11th, 2010 | LINK

“We will not tolerate discrimination based on sexual orientation or any other basis that’s outlawed under state or federal law or the Constitution, ”

what sexual orientation discrimination actually IS outlawed under federal and VA state statutes? not much, I bet.

Norhtup Grunnman should consider that even if THEY have a corporate great non-discrimination policy, that they many have a hard time recruiting talented gay and lesbian employees to move to VA (most especially parents, or partnered people – as many couples may have a partner in public service who’d not feel comfortable working for a public agency in VA).

Fred in the UK
March 11th, 2010 | LINK

Lurker raises a good point, the implication of the Attorney General is that such discrimination is not outlawed but the Governor implies that it is (under one statute or another). A further point is this, the Attorney General’s advice (if correct) applies to all public institutions, does the Governor actually have the power to reprimand or fire the employees of all such institutions, or does his statement only apply to the organisations under the his direct control?

Ben Mathis
March 11th, 2010 | LINK

Classic religious right. Sanctimonious until it comes to money, and then they bend over backwards to accommodate. As a native born Virginian, this doesn’t surprise me in the least. One more reason not to go home.

werdna
March 11th, 2010 | LINK

@Lurker & Fred: I understand that sentence to mean “we will not tolerate discrimination based on sexual orientation, nor will we tolerate discrimination on any other basis that is explicitly prohibited by VA or US law.” It’s not clearly written, but that’s how I read it.

John
March 11th, 2010 | LINK

Whatever the merits, or lack thereof, of this Executive Directive may be I do find this portion to be significant:

“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.”
http://www.governor.virginia.gov/Issues/ExecutiveDirectives/

I haven’t heard many Republicans, especially in Virginia, concede that discrimination on the basis of sexual orientation is a violation of the Equal Protection Clause of the 14th Amendment to the US Constitution. That to me is VERY interesting and possibly useful.

Eric in Oakland
March 11th, 2010 | LINK

It seems like he is taking his cue from Obama. They talk about equality but don’t actually do anything substantial about it.

Fred in the UK
March 11th, 2010 | LINK

@John: Many thanks for that quote, I entirely agree that it may well have some very interesting implications.

Returning to Virginia specifically, the Governor repealed an Executive Order of his predecessor and replaced it with one of his own to remove legal protection from discrimination on the basis of sexual orientation (for persons within the Executive branch of government) because it exceeded what protections the state legislative assembly had thought proper. Similarly, the Attorney General issued advice that public institutions were exceeding their powers by having anti-discrimination policies that went beyond that which the state legislative assembly had authorised. Now the Governor states that discrimination based on sexual orientation is prohibited by the United States Constitution, reading that in conjunction with the statement of the Attorney General, then the statues of the Commonwealth of Virginia are in violation of the US Constitution. Furthermore, the Attorney General was encouraging public institutions to follow the laws of Virginia and violate the US Constitution. In any case, Virginians who were discriminated against on grounds of sexual orientation do have legal redress albeit through the Federal Courts.

If I am incorrect in any of the above please correct me. If I am correct, is it only because I am from a different legal culture, that the whole thing strikes me as absurd.

paul j stein
March 11th, 2010 | LINK

Another reason NOT to stop, purchase anything or spend any time in Virginia. As usual I will be driving through as legally fast as possible to my destination.

Edwin
March 11th, 2010 | LINK

Why doesn’t everybody that soesn’t agree with tiis a**hole gov. and move from the state and let him and all of his bigoted buddies have the state.
Then cut off all kinds of federal funding to them.
i may not be as smart as some of the rest of you but if i was running this country we would be using the constitution as it was writen.
If we don’t hace any rights then no one else should have them either!!!!!!!!!!!!!!!

John
March 12th, 2010 | LINK

Why doesn’t everybody that soesn’t agree with tiis a**hole gov. and move from the state and let him and all of his bigoted buddies have the state.

For the reason that’s quintessentially American: this is my home and I will fight anyone who tries to take it from me. It’s very easy for people who do not live in states like Virginia to make such statements when they haven’t spent most of their lives here. When they do not have a home, most of their family and friends, their personal and professional contacts, etc. in this state. I’m well aware of how painfully slow Virginia is when it comes to social change. A couple of years before I was born Virginia earned notoriety for being the state that lost on anti-miscenegation laws in Loving v. Virginia. VMI was the last US military college to admit women, after losing the United States vs. VMI case in 1996. Virginia was one of 14 states with sodomy laws still on the books when SCOTUS struck them down in 2003 with the Lawrence v. Texas ruling. Even so, Virginia is my home and while change hasn’t ocurred with the speed I would have liked, it has happened nonetheless. Even this directive by the Governor has language in it that I find remarkable in its concession of a key point in this struggle: “Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.”

My home state will probably be dragged once again kicking and screaming, but the next generation of Virginians will find a very different Commonwealth than I grew up in. Heck, the Virginia of today is different than what I saw 20-30 years ago.

Swampfox
March 12th, 2010 | LINK

I would advise everyone to read PowerlineBlog.com and hear what they have to say on this issue

“The Commonwealth of Virginia’s new Attorney General, Ken Cuccinelli, has created a stir by advising the state’s public colleges and universities that they have no authority to adopt policies that ban discrimination on the basis of sexual orientation. He has called on these institutions to rescind such policies.

Cuccinelli, a strong social conservative, concludes that only the state legislature can extend legal protections to gay state employees and students. Virginia’s legislature, the General Assemby, has repeatedly (and again just recently) declined to take this step.

Cuccinelli’s position is, I think, correct as a matter of law. Indeed, though it denounces the decision, the Washington Post editorial board concedes that, for 25 years, Cuccinelli’s predecessors — Republican and Democrat — have “come to a similar conclusion concerning cities and counties that wished to extend protections to gay and lesbian residents.” If the elected representatives of local governments lack this power, I’m at a loss to understand how university bureaucrats possess it.

The Post says that “colleges and universities traditionally have been given broad leeway to set policy.” But this only begs the question; it isn’t really an argument.

The Post also says that colleges and universities “have been havens for inclusive policies that often go hand-in-hand with academic freedom.” This invocation of buzz-words also begs the question, even as it raises a new one: if colleges and universities are “havens” of non-discrimination, do they really need formal policies to prevent discrimination against gays?

Cuccinelli isn’t saying that Virginia’s colleges and universities must discriminate against gays, and Gov. McDonnell has said he doesn’t want them to. If a given college is enlightened enough to write up a formal anti-discrimination policy, it is enlightened enough not to permit discrimination against gays to inform its decisionmaking in the absence of such a written policy. So the issue here isn’t really “legalized discrimination,” as the Post’s editors claim.

What practical difference (from the point of view of real gay rights, as opposed to symbols and public relations) does Cuccinelli’s legal adivce carry, assuming that colleges and universities follow it? I may be missing something, but the only important difference I see is that the absence of a formal prohibition against discrimination cuts off potential litigation.

That’s no great loss. Discrimination claims by gays against universities that are “havens for inclusive policies” are overwhelmingly likely to be frivolous. In any event, university administrators should not be drafting policies that may create suits over actions the legislature has refused to deem illegal.

Virginia’s colleges and universities would like to keep their anti-discrimination policies in place for ideological reasons and to make their schools more attractive to top applicants and professors. But even if revoking these polcies might tangibly hurt these schools, it’s up to the legislature to weigh this potential consequence.”

Well, it appears that what needs to be done in Virginia is to get the legislature to act!

customartist
March 12th, 2010 | LINK

Will Northrop Grumman support the State of Virginia’s Hate?

Why not ask them Here:

https://appserv.northropgrumman.com/RFIFormsWeb/getForm.do?formId=2

Seems that McDonnell has pandered a little too far to his Right base. His facade has no substance / His Words have no beef / He speaks from the mouth on one side of his face, and then the other side.

Both the Governor and the AG of Virginia prove Virginia to not be “For Lovers, but “For Haters”. Change the POLICY or loose future contracts Virginia

customartist
March 12th, 2010 | LINK

The policy is Lawful as applied to Virginia Law, but it is not Lawful as is applies to Constitutional Law – the overriding athority.

That said, this is about an agenda of teaching the public at large that discrimination is okay. It is not. Republicans regress herein, and in a multitude of ways.

Swampfox
March 12th, 2010 | LINK

Customartist, Boeing has just made a huge investment in South Carolina. Do you think that South Carolina has any such laws, of course not!

customartist
March 12th, 2010 | LINK

https://appserv.northropgrumman.com/RFIFormsWeb/getForm.do?formId=2

My letter:

Hello,

I am writing in concern that Northrop Grumman may be entertaining a move of its headquarters to the Virginia/DC area.

Given the recently biased Policy issued by Virginia Governor McDonnell removing Sexual Orientation from State protections, and the Letter to Virginia Universities sent by Virginia Attorney General Cuccinelli directing Universities to remove similar policies, may I kindly request that Northrop Grumman carefully consider it’s own policies prior to relocating voluntarily into a State wherein Policies of State Officials conflict with the United States Constitution, guaranteeing Equal Protection for all Citizens.

Thank you sincerely

customartist
March 12th, 2010 | LINK

Swampfox, I have written about the defficiencies of South Carolina law, as they arise, as well.

Fred in the UK
March 12th, 2010 | LINK

@Swampfox. Thanks for that post from the powerline blog however it has left me even more confused.

The author suggests that the Attorney General’s assertion that universities are exceeding their authorised powers, by having anti-discrimination policies that formally protect against discrimination on the basis of sexual orientation, does not, in practice, matter because universities can and will offer informal protections. But what disciplinary action could a university take against a member of staff or student for breaking an informal anti-discrimination policy? Can you reasonably fire someone for breaking rule that is not written down? If yes, then what is the difference between formal and informal policies that the Attorney General is concerned about. If no, then I’d say it clearly does matter.

The author also points out that the Washington Post admits that previous Attorneys General have been of the opinion that various municipalities could not bring in various protection ordinances covering lesbian and gay residents. However, (correct me if I am wrong) such protections do restrict the freedoms of other residents, for example, a Christian private landlord who only wishes to rent out his property to heterosexuals, I do not see how university’s anti-discrimination policy, falls into the same category, its limitations on freedom are much smaller and apply only to those who have chosen to work for or study at that institution. Also, I do not see how universities could practically function if they could not enforce any rule on its staff or students that had not been authorised by the legislative assembly. If they can enforce some rules without authorisation, what is the legal test to determine which ones they can?

Lynn David
March 25th, 2010 | LINK

And McDonnell flip-flopped again!

http://voices.washingtonpost.com/virginiapolitics/2010/03/legal_protections_for_gays_not.html

No rampant discrimination against gays – so whatever disrimination there is, isn’t worth stopping…. who cares is a gay gets unfairly treated.

He says discrimination isn’t in the state government workforce. Of course, there is that one issue from 2006 that is in the courts.

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