Last evening I wrote about Virginia Governor Bob McDonnell's desperate attempt to douse the political firestorm that he and Attorney General Ken Cuccinelli (who took McDonnell's Attorney General Opinion No. 05-094 one step further and applied it to Virginia's public colleges and universities) set off by issuing Executive Directive 1 (2010). McDonnell must think this move is only too cute on his part. Why? Because, unlike an executive order, the Directive does not have the force of law and McDonnell knows it. Moreover, his action in signing yesterday's Directive runs 100% counter to his Attorney General Opinion, which challenged the legitimacy of former Governor Tim Kaine's Executive Order 1 (2006).
His disingenuous attempt to buy some political damage control also is 100% at odds with the briefs filed by McDonnell's office when he was Attorney General in the case of Moore v. Virginia Museum of Natural History, Record #1552-09-03, now before the Virginia Supreme Court. In the briefs - which are public record as part of the Court's file - McDonnell's office and now Cuccinelli's office have consistently denied that the Governor has the power to grant employment non-discrimination protections based on sexual orientation. According to their mantra as set out in Attorney General Opinion No. 05-094 and the briefs on behalf of the Virginia Museum of Natural History, ONLY the General Assembly can grant such protections. The rights of a Virginia citizen under the United States Constitution, including but not limited to equal protect and freedom from religious based discrimination have no bearing in McDonnell and Cuccinelli's world.
Indeed, the Attorney General's brief in Moore states in relevant part: