Bob McDonnell's Meaningless Gesture

Last Christian Jackboots.jpg 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:

[T]hat Executive Order [Executive Order 1 (2006)] did not - and could not - create a cause of action for employees who allegedly were discharged based upon their sexual orientation. First, the Executive Order says nothing about creating such a cause of action. Second, and more significantly, the sovereign immunity of the Commonwealth cannot be waived by Executive Order. The immunity of the Commonwealth can be waived only by constitutional amendment or by laws enacted by the General Assembly.

Bob McDonnell needs to be honest with Virginia's citizens and admit that Executive Directive 1 (2010) is a disingenuous empty gesture that affords gays in Virginia zero enforceable protections.

Both Bob McDonnell and I know that under his own previous legal reason, to fix the mess he and Cuccinelli have created he needs to push a statute granting gay Virginians through the General Assembly within the next three days. McDonnell needs to buck up and be brave enough to face the wrath of Victoria Cobb, President of The Family Foundation, when she storms over to his office in her Christianist jack boots.

True, that would require leadership on McDonnell's part, but McDonnell is deservedly reaping what he has sown.

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Alex Blaze | March 11, 2010 2:24 PM

Much like with ENDA, these folks think we'll stop caring with a few symbols.

Well, they're probably right about a few of us.

But didn't the House reject a bill this week that would have created these protections? Because in the end it seems like they should just do it and take the power out of the hands of the executive.

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Zoe Brain | March 11, 2010 6:59 PM

He's correct in some areas, wrong in others.

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 –

Michael Moore, a former resident of Martinsville, VA said he was forced to resign from the Virginia Museum of Natural History because he is gay. The state has no anti-discrimination law, just Governor Tim Kaine's (who is also the DNC chair) 2006 executive order. The courts have ruled that without legislation on the books, Moore has no recourse there. (Wash Blade):
According to Moore, during his evaluation in October 2006, the museum’s executive director, Tim Gette said, “Michael, there are board members that are aware you are gay, and I do not appreciate you hiding that from me.” Moore has said his evaluation qualified him for a pay increase, but he was still asked to resign the following month.

Michael Hamar, who’s gay and Moore’s attorney, said he’s “disappointed” in the court’s decision. “It looks as if they’re saying the executive order in 2006 doesn’t basically do anything,” Hamar said.
A Roanoke Times editorial calls for legislative action to protect employees.
Through his spokesman, Kaine said the executive order would remain in effect, but as an internal policy. Workers who are fired or discriminated against because of their sexual orientation can seek redress through the state's personnel procedures, said spokesman Gordon Hickey.
That's less than adequate. The decision by the Martinsville court should be a convincing sign to the General Assembly that protection against such discrimination must be written into Virginia's code. Only a law will offer genuine confidence to Virginia's gay employees that they won't face irrational threats to their employment based on their sexual orientation.
Notably, trans protections are not called for, so whoever works on writing up a bill needs to get that on the radar.

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.

Smoke and mirrors, and when the rubber meets the road, and you talk to lawyers about suing because you've been discriminated against, they'll tell you you're wasting both time and money.

Deanna | March 11, 2010 11:06 PM

Northrop Grumman LGBT employees and allies need to send e-mails to the NG CEO letting him know Virginia is not a good location for their corporate headquarters, and include a Bcc to the governor of Virginia. 40 or 50 employees should be enough.

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