Michael Hamar

Bob McDonnell beginning to flinch?

Filed By Michael Hamar | March 10, 2010 6:00 PM | comments

Filed in: Fundie Watch, Politics
Tags: anti-gay discrimination, Bob McDonnell, Ken Cuccinelli, The Family Foundation, Virginia

With all Hell breaking loose at colleges and universities and even some Republican members of the Virginia General Assembly seeking to insert gay non-discrimination protections in pending legislation, Bob-McDonnellforweb.jpgBob "Taliban Bob" McDonnell has issued what some are calling an edict (others a directive) barring all forms of discrimination in Virginia's governmental offices.

This action would seem to be a direct blow to Attorney General Ken Cuccinelli who inflamed the issue last week with his directive to Virginia's public colleges and universities to rescind their non-discrimination policies that made sexual orientation a named protected category. Only time will tell if this action can stem the firestorm that McDonnell and Cuccinelli have unleashed on themselves and the GOP in Virginia.

Hopefully, but most of us see McDonnell's action as too little too late.

Both the Virginia Pilot and the Richmond Times Dispatch have stories. First highlights from the Richmond Times Dispatch after the jump.

In an executive directive sent today to all state employees, Gov. Bob McDonnell projected his strongest stance yet on non-discrimination in the workplace, but stopped short of calling for the legislature to add a protection based on sexual orientation.

"Employment discrimination of any kind will not be tolerated by this administration," it states. "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."

The first Executive Directive from McDonnell further states that "any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination."

On the House of Delegates floor this afternoon, Dels. Joseph D. Morrissey, D-Henrico, and David L. Englin, D-Alexandria, called on the governor to send a bill to the General Assembly before it adjourns on Saturday to add sexual orientation as a protected class in the state code. Just this week, the Republican-majority House refused to act on a tabled bill that would have added that protection to the state code. . . . At Virginia Commonwealth University, meantime, more than 1,000 people turned out to protest Cuccinelli's opinion.

The Virginian Pilot is also carrying the story. Here are highlights from that coverage:

In a strongly worded edict, Gov. Bob McDonnell today instructed state agencies not to discriminate against gay and lesbian workers during the hiring process or in the workplace.

His directive comes in the wake of a recent firestorm ignited after Attorney General Ken Cuccinelli wrote to Virginia college and university officials telling them they lack the legal authority to adopt employment policies with protection for gay workers.

While McDonnell's missive takes a strong stand on Virginia's non-discrimination posture, it doesn't carry the weight of law, as an executive order does.

Earlier Wednesday, Sen. Tommy Norment tacked a sexual orientation amendment onto an economic development bill from the McDonnell administration as it passed out of the Senate Finance Committee. The James City County Republican altered legislation that would give the governor greater flexibility to offer financial incentives to attract companies to Virginia.

It is widely viewed as vehicle to recruit defense giant Northrop Grumman, which is considering Virginia as a site for a new headquarters.

Inasmuch as the question of the strength of an Executive Order is now pending before the Virginia Supreme Court, equality advocates need to insist on legislative action. The irony, of course, if this happens will be that Cuccinelli's overreaching with the backing of The Family Foundation might prove to be the undoing of The Family Foundation's anti-gay agenda.

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This is a very curious development. In addition to it being a rather transparent reversal, it's legal justification borders on the bizarre. The Governor states:

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

Well, OK, I happen to agree with this, at least with respect to sexual orientation. But I am a liberal civil rights lawyer, not an antigay southern politician. And those supporting this proposition would have an uphill battle in the courts, let alone among conservative southern politicians.

And if McDonnell really believes this, his prior justification for revoking the executive order prohibiting antigay discrimination -- i.e. that the prohibition has no basis in the law -- totally evaporates. Yet the Executive Order remains revoked.

Virginia's current political leadership obviously is not acting out of any legal principle. Nor has it any sense of fairness or integrity. Any compromise it has made with the forces of equality will be just as ephemeral as the Governor's legal analysis of the day.

rapid butterfly | March 11, 2010 8:48 AM

Mr. Hamar, I admire your work and appreciate your taking that Martinsville case re: the (former) EO. as a fellow virginia attorney, a lesbian, and a trans woman -I'm hoping and expecting there are gender identity and expression protections in any proposed legislation ( the previous EO's didn't seem to me to protect T people). Certainly I am aware that many of the university non-discrimination provisions which are under fire DO explicitly include protections for gender identity and expression.

An "edict"? Why does that seem to be such a curious choice of words?