Virginia has taken a regrettable step back from the direction of human dignity. But the media folks are blaming the wrong person. They, and the folks protesting, need to shift their ire away from Attorney General Cuccinilli and towards Governor Bob McDonald.
Here’s a Washington Post headline from this weekend: “Virginia attorney general to colleges: End gay protections.” And here’s the Huffington Post (the internal link is to the WaPo article: “As anyone who cares about human rights in America should know by now, Ken Cucinelli [sic], Virginia’s Attorney General, has “urged the state’s public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation….”
From Charlottesville’s NBC local news: Gay rights supporters met at UVa, “in response to a letter from the state attorney general that would dramatically change discrimination rules – or protections – for gays and lesbians on grounds.”
From Richmond’s Times Dispatch: “Students and faculty urged Virginia Commonwealth University administrators this morning to take a strong stand against Attorney General Ken Cuccinelli’s opinion that gays cannot be included in state anti-discrimination policies.”
The protections that Cuccinelli ripped to shreds, according to the news, are not his to make or destroy. The letter was an advisory opinion. Back in 2006, the prior Attorney General opined, also, that protections against state agencies hiring or firing based on sexual orientation were unconstitutional. But I don’t recall reading news stories about that 2006 advisory opinion, because no one cared (because, in turn, the executive had no interest in enforcing it).
Flash back to the Washington Post circa 2005:
RICHMOND, Dec. 16 — Gov. Mark R. Warner (D) on Friday quietly amended an executive order that for the first time explicitly bans Virginia state agencies from discriminating against gays in hiring and promotions.
The policy went into effect immediately, and a spokeswoman for Gov.-elect Timothy M. Kaine (D) said the incoming governor plans to continue the policy by signing the same executive order when he is inaugurated Jan. 14.
And back to 2010. Shortly after his inauguration, Governor McDonald decided to discontinue the protections against gayscrimination in state agencies, and stripped those provisions from the prior two Democratic administrations’ executive order. One ought seen that coming, as McDonald was the 2006 Attorney General that opined the protections unconstitutional in the first place. As Cuccinelli’s Advisory Opinion notes:
In 2006, this office concluded that the addition of sexual orientation as a protected employment class by way of an executive order of the Governor was intended to, and did, alter the public policy of the Commonwealth.
In both 2006 and 2010, the Attorneys General were offering an opinion on the state of Virginia law relating to protections, within state units, for gay workers against discrimination. The legislature, then nor now, did not place those protections within the State’s statutes, so the question is whether the Governor can create those rights with an executive order. The difference between this 2010 letter and the AG’s letter from 2006 is that the Governor’s and Attorney General’s offices agree.
Virginia’s colleges and universities are, as AG Cuccinelli’s assailed letter describes, state government institutions. What, though, is the scope of authority that college boards (in VA, the “Boards of Visitors”) have in setting out rules and regulations for the college? It’s a legitimate legal question, and falls in with the old chestnuts of administrative and local government law: who tells these government units what to do; how much discretion do these government units have; and, to what degree of specificity must authority derive from the legislature or executive?
Those are decent legal questions for discussion. And that is what the AG’s letter is about.
In late 2005, then Governor Warner made the decision to incorporate gays within the State’s anti-discrimination rules despite the legal uncertainty. That decision is what initiated those protections and sparked headlines. Now, it should be the current Governor’s decision to rescind those protections in the headlines.
March 10, 2010 at 4:49 pm
I think the main thread of your comments are correct. Namely that a) the reason for the outrage began with the initial imposition of the decision to include the language in prior administrations executive directives, and b) McDonnell has made comments similar to those of Cuccinelli in the past and that the only reason for the ire now is that the executive agrees. But I disagree with the possibility that what the administrations of Warner and Kaine did was tantamount to legislative action or a departure from Virginia law. My reason for saying that is that the federal floor far exceeds any specific language in the Virginia code. Even though the federal government has not yet legislated protected identities based on gender identity or sexual identity, it already is protected under the 14th amendment guarantees of Equal Protection. That is, I believe, no law needs to be written to enforce that right.