Bob McDonnell is the d-bag governor of Virginia who was elected even after a 20-year-old, 93-page diatribe about how gay men (and women) were second-class citizens surfaced. Eventually, he disavowed his former remarks — but only about women, not The Gays. Which might explain why in February he issued an executive order stripping anti-discrimination protections for LGBT state workers, all part of his strategy to try to hide his bigotry until after the election. So it made sense that McDonnell’s new attorney general, Ken Cuccinelli, would extend the governor’s pro-discrimination platform and instruct state schools to remove protections for queer employees. Except now McDonnell is … contradicting Cuccinelli’s own anti-gay positions?
On Monday, McDonnell was telling reporters he backed the legal reasoning of Cuccinelli (pictured above, left, next to McDonnell and Lt. Gov. Bill Bolling) in his decision to rescind protections for gay employees at Virginia’s state universities and colleges; he “supported the legal reasoning of Cuccinelli’s letter but stressed that he would allow neither colleges nor other state agencies to discriminate,” the Washington Post reported. Except in a new executive order directive (PDF here), he’s completely reversing stride, amending his own original executive order and saying Cuccinelli’s stance is a farce. Says McDonnell’s new order:
Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. 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.
Consistent with state and federal law, and the Virginia and United States Constitutions, 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. No employee of the Executive Branch shall engage in any discriminatory conduct against another employee.
Moreover, McDonnell’s chief of staff is telling state colleges to follow his new position, and effectively ignore Cuccinelli’s remarks.
While the separation of powers doctrine precludes the Governor from changing the Virginia Human Rights Act via Executive Order, he wants to be clear that discrimination in state employment will not be tolerated. As the chief executive officer for the Commonwealth, the Governor wants to establish a clear standard of conduct ensuring that all cabinet members, agency heads, managers, supervisors and employees of the Executive Branch understand and enforce state and federal law prohibiting employment discrimination. Independent agencies and state supported colleges and universities should likewise adopt a similar standard of conduct.
This is a (less than remarkable) 180, and while McDonnell and Cuccinelli are reportedly not the closest of personal friends, they are political allies; they campaigned on the same Republican ticket. UPDATE: McDonnell’s new statement carries the force of “his office,” but not law, as it is an executive directive and not an executive order.
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But his directive, he said, would give employees or potential hires a pretty powerful tool to use if they felt they had been the victim of discrimination: They could complain to human resources, and if their complaint was founded, they would know their discriminator would face disciplinary action, including reprimand or termination, at the direction of the governor.
And now, just weeks after assuming their new roles, they are involved in a public disagreement over an issue that really gets those social conservative voters all agog. Whether you want to credit the outrage exhibited on Virginia’s college campuses or the pressure applied by the media (naturally the liberals and weed smoking crowd are going to say Jon Stewart gets to take a victory lap), this is all going to be an unraveling worth studying — on how to get politicians to support LGBT discrimination protections.
Like, say, ENDA.
John k.
My understanding is that this new “directive” does not carry the weight of law that an executive order does. I really hope the lgbt community doesn’t let Gov. McDonnell to get away with scaling back these protections by praising him for taking a step forward after taking two steps back. If I am mistaken and he actually issued a full-blown executive order, completely restoring the protections he tool away, then he deserves credit. However, if not, he deserves nothing but more condemnation.
Mike in Asheville, nee "in Brooklyn"
This has NOTHING to do with correcting a wrong, doing the right thing, civil rights or anything of the sort.
Out and proud as homophobic bigots, the new governor and AG are leading the charge to vilify the LGBT community as a means to maintain their political offices, showing their wingnut supporters what big balls they have.
So, Virginia ends its anti-discrimination policies protecting the gays so now all rightwing homophobic bigots can discriminate against fellow citizens. So American; so Christian.
BUT, Northrup Grumman is looking to move its international headquarters from California to the DC beltway area, bringing 400 highly paid senior executive plus all that support staff and trickle down economics. And Virginia is not the only contender.
Virginia offers lower state taxes; Maryland, Delaware, and DC offer an inviting living/working environment.
The math is simple: (400 executives + 1000 support staff) x 3 (employee and dependents) x 5% gay factor = 210 disenfranchised employees/family members. And now, thanks to gov and AG, the Northrup family’s gay kids are subject to unchecked bigotry and discrimination at state schools (primary through graduate). Not very welcoming.
Losing the Northrup Grumman headquarters will cost the state millions upon millions of tax revenues and billions of dollars to the local business economy. Its not just the NG jobs, but all those stores, restaurants, services that would need to hire additional staff to support the influx of the NG cornacopia. That is the slap in the face the new governor now wants to avoid.
rf
John K – you are right, this new directive is meaningless but not only because it doesn’t carry the weight of law.
LGBT are NOT a suspect class yet, discrimination against us is still held to a rational basis test, which means any old reason can be used to uphold the discrimination. From what I understand, the New York Supreme Court decided that unmarried straight people could accidently produce children–so they have the right to marry, while gays don’t have that concern so they don’t. That is rational basis.
I would still love to see Northrop Grumman come out with a statement about this.
Topher
Sadly this is all a semantic battle. Initially McDonnell removed the governor’s executive order regarding discrimination, but insisted he would not tolerate discrimination in state jobs. Then Cuccinelli extended the logic to the state universities: they should remove explicit protections against discrimination for GLBT employees and students. When McDonnell “reveresed” this statement, really he supported it by saying that there is no need for these types of protections because he doesn’t tolerate discrimination. He also suggested they are duplicative of the 14th amendment.
I think the real test will be when a case of discrimination is filed and McDonnell has to defend the GLBT person who filed the complaint because he doesn’t allow discrimination. At this point, it is all sound and fury signifying nothing.
Darren Hutchinson
Here’s a problem: Everyone is assuming that an executive order has the force of law, but that is not entirely clear. Apparently, the executive order and directive both would allow a person to bring an administrative action against a discriminator. This is LAW. But some people are arguing that an executive order would allow lawsuits for sexual orientation discrimination. I am not sure that this is an accurate statement of the law. Normally, only legislatures can endow people with the right to sue, and the Virginia legislature has not done so on this particular matter. Accordingly, the difference here is probably just one of semantics.
Claire Benoit
Actually this doesn’t supersedes the existing law. to quote gay rights/constitutional law professor. “…Executive Order has the force of law, but it cannot overrule the meaning of statutes. Virginia statutory law simply does not protect GLBT people from discrimination. “This can be explained as a simple role playing to pretend that something is being done when in fact it doesn’t even have an impact.
John Culhane
This Directive’s main impact will be in its aspirational tone, which shouldn’t be ignored. McDonnell is still a homophobe; on my blog today, I looked at something he said in his Regent JD thesis, which is a truer reflection of his views than his cynical, pro-business cave in. The good news is that social conservatism is no match for business centrism, esp. for a governor with one-and-a-half eyes on the White House. My post is here;
http://wordinedgwise.org
Zoe Brain
1. The new “policy” is NOT an Executive Order.
2. He’s right, an Executive Order has no legal effect.
3. He’s wrong, the 14th amendment has been held by the courts not to apply to gays in Virginia – see
Zoe Brain
Without an executive order now though – and this “policy” is not one – there would be no legal basis for “seeking redress through the state’s personnel procedures”.
Should someone discriminate against gays in the Virginia bureaucracy, despite the governor’s expressed wishes, it would be a complete defence against any comeback to say that such discrimination is forbidden neither by federal law, state law, or executive order. Any penalty for doing so would thus be illegal.
The Obama federal executive order is even more subtly ineffective: it requires a complaints procedure that goes through the OCS, who are legally not permitted to investigate whether the complaint is justified or not. Thus all such complaints must remain unresolved without action being taken against the guilty party.
ewe
They act and LOOK like German SS officers. They need to be removed from public service.