Michael Hamar

Will the Supreme Court of Virginia Save the State's Image?

Filed By Michael Hamar | March 25, 2010 9:30 AM | comments

Filed in: Fundie Watch, Politics
Tags: anti-gay bigotry, Bob McDonnell, employment discrimination, equal protection clause, Executive Directive 1 (2010), Ken Cuccinelli, Virginia Museum of Natural History

On Mike_Moore1.jpgMarch 31, 2010 at 1:00 PM, the Supreme Court of Virginia will hold oral arguments on the case of Michael Moore v. Virginia Museum of Natural History. Moore is a former employee of the Virginia Museum of Natural History who was terminated in November, 2006, for being gay. The Williams Institute has references to the case here as a case where a gay employee was terminated because of his sexual orientation by a public entity in Virginia.

Yours truly, who is neither a litigation attorney nor an appellate case attorney, finds himself scheduled to present the oral argument on Moore's behalf. Little did I know when I agreed to assist Michael Moore back in late 2006 because he could find no other attorney in Virginia to help him that circumstances would lead us here. The case is interesting for several reasons.

First, the case has been fully briefed - the Virginia Attorney General's briefs make statements diametrically opposed to the statement in Gov. Bob McDonnell's recent Executive Directive signed in a hope of ending the state's humiliation and negative publicity in the wake of Attorney General Ken Cuccinelli's directive to Virginia public colleges and universities to rescind non-discrimination policies that included sexual orientation as an enumerated class. Interestingly enough, McDonnell was Virginia Attorney General when the Moore case began and supported the state's arguments. The state's pleadings clearly state that:

Sexual orientation is not a protected class under either state or federal law. . . . The only source of protection for this classification is provided by the Governor's Executive Order #1 which, by itself, does not provide a cause of action.

In total contrast, Governor McDonnell's Executive Directive 1 (2010) makes the following statement in relevant part:

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.

The disconnection between these two legal positions cannot get much more apparent. Moreover, briefs on Moore's behalf have made among other arguments the exact one now embraced in Executive Directive 1 (2010).

It is hard to tell what the Virginia Supreme Court will rule in the matter. If the Court adopts the Attorney General's arguments in the case, it will confirm that McDonnell's Executive Directive 1 (2010) is a meaningless political stunt. If the Court accepts the arguments in the briefs submitted on behalf of Moore, employment discrimination - at least when involving state agencies and departments - based upon sexual orientation/religious belief will be struck down as illegal under the U.S. Constitution. Of course, if the Court rules for Moore, then Pat Robertson, The Family Foundation and other Christian Right puppeteers of Gov. McDonnell and Attorney General Cuccinelli will be having apoplexy.

Candidly, I am clueless as to how the Virginia Supreme Court will rule, but if the Court rules against Moore, it will likely cut the Governor's latest public relations move off at the knee caps. It might even endanger the prospects of Northrop Grumman moving its headquarters of Virginia - not to mention other corporations that afford equal rights and protections to LGBT employees. In short, Virginia has a major problem in terms of negative public relations and now the Supreme Court of Virginia finds itself in a position where it can favorably resole the issue in Moore's favor and repair Virginia's damaged image.

The second reason the case is interesting is because it evidences the lack of support and assistance that Michael Moore and I have experienced when reaching out to gay rights organizations. My experience has been that the recent criticism of such organizations by the grass roots elements of the LGBT movement is justified. HRC proved itself to be utterly worthless and afforded no assistance. Lambda Legal sent a few case citations to me, but beyond that did absolutely nothing. The Virginia ACLU likewise did nothing. Indeed, the only meaningful support I received from anyone was from Sharon McGown at the ACLU Lesbian, Gay, Bisexual, Transgender & AIDS Project in Washington, D.C. For her assistance, my client and I are most grateful.


Recent Entries Filed under Politics:

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.


Examples of "rational basis" for those not in a suspect class:

"I didn't fire him because he was gay, but his being gay upset some co-workers. It was to avoid that problem, I swear."

"I didn't fire him because he was gay, but his being gay upset some clients. It was to avoid that problem, I swear."

"I didn't fire him because he was gay, but his being gay upset the cleaners. It was to avoid that problem, I swear."

"I didn't fire him because he was gay, I fired him as a health risk. My copy of Wingnut Chronicle says all gays are filthy and disease-ridden, and I didn't have time to check this was true."

With the passage of the Hate Crimes law, you can now argue that Gays are a suspect class, and the case should be decided on intermediate or even strict scrutiny. "Rational basis" means anything that isn't completely impossible, and much that is.

IANAL of course. But my bet is the Virginia Supremes will say that he wasn't fired just for being gay, but that being gay inevitably raises other issues for which a rational reason for firing exists.

Zoe,

I understand your point, and you may be correct in what they do. The problem is that the administrative investigation DID find discrimination because Moore is gay. Other trumped up issues were put forth, but had the Circuit Court reviewed the adequacy of the evidence, I believe it would have failed, leaving the conclusion that anti-gay discrimination was the only true cause.

The AG's office has tried desperately to avoid that discussion and focus instead on the lack of state or federal protections.

Where was the ACLU when Moore needed them? And Lambda Legal? And a few other organizations that could be named?

Just want to point out that the one person Michael thanks is Sharon McGowan, who was my colleague here at the ACLU's LGBT Project until recently. So it's not like the ACLU was completely AWOL.

Basil Kiwan | March 25, 2010 11:48 AM

Michael

I remember when this happened, but did not know that there was further litigation.

I am not an attorney, but am keenly interested in the issue of our status as a protected class. Please ask counsel take a quick look (if counsel has not already) at the Witt case of 2008, which was in the 9th Federal Circuit (Western US). It relates to Don't Ask Don't Tell. I discusses at length whether or not LGBT American are a protected class, or whether laws against them are only subject to a rational basis test (in which case we lose). In this case, it decided that we are subject to at least intermediate scrutiny, and on this basis states that Major Witt cannot be dismissed under DADT unless the government presents evidence that her presence actually damages morale and unit cohesion, and there are no other alternatives. (That is part of the reason for the new DADT regulations coming out of DOD today). My understanding is that the military is given much greater leeway by the courts than other employers would be.

Between the Witt case, and the recent Federal hate crimes law, there should be (again as a non-attorney) have a decent shot at establishing that LGBT persons are subject to at least an intermediate level scrutiny because of a well documented history of discrimination, and therefore this firing was unlawful.

Basil

When I was looking for a divorce attorney in Iowa in the 90s, there were a few who were known as deeply experienced in lgbt-related work. Others were solid divorce lawyers, well-equipped and happy to serve lgbt clients, even if that was a smaller part of their clientele.

I'm curious what Michael Moore found while he was looking for an attorney. Do some VA attorneys believe that taking on an lgbt client will tarnish their career or professional standing?

Michael, you have raised a good point that our LGBT community does not have the resources it needs to confront discrimination when it happens.

What I think is going on here is that a lot of the organizations that are fighting discrimination are under-resourced, and they are looking for cases that are easy wins. If Virginia had an ENDA law, then HRC or Lambda Legal or other groups would likely step in to help Moore with a legal case, but because there is no law, they don't want to take the risk of losing the case and setting a bad legal precedent that would hurt the community, especially when there are other easy wins out there.

I ran into this problem when I was discriminated against based on my gender identity last year. The larger LGBT orgs were very sympathetic but didn't want to commit resources when the law that is supposed to protect me has not been tested, and my case was not a slam-dunk. Luckily, I was able to work out a reasonable solution on my own. Plus, it helps that my partner used to be a lawyer and was able to advocate on my behalf. However, what I learned from the experience is that the people who are the most vulnerable in the LGBT community have the least resources made available to them to fight discrimination. Until our community gets the resources to fight discrimination, many of us are on our own.

The unfortunate reality is that many discrimination cases are messy, and many of us live in states without LGBT protections, many of these protections are untested (especially the T protections), and there aren't very many organizations who are willing to step in and fight discrimination in these messy cases.

In response to several comments, my thoughts/comments are as follows:

1. Indeed, Mike Moore had a very hard time finding counsel who would assist him. I am located almost 5 hours by car from Martinsville. The sad reality is that in Virginia many attorneys seem to believe that representing a gay client hurts their image and, therefore, refuse to take their case. This happens often. As a result I receive a lot of calls asking for referrals on criminal, motor vehicle and divorce issues (none of which I handle). I have a handful of gay and gay friendly attorneys that I send these folks to for representation.

2. Yes, Sharon McGown from the ACLU in D.C. was helpful in terms of sending me some case law and review draft memorandums of law at the Circuit Court level, etc. The Virginia office of the ACLU, however, did nothing.

3. The Museum tried to bring up things never mentioned on Michael written review and/or which never happened to concoct a rational bais for his termination. The Circuit Court never even looked at the fact that the evidence did not support some other alleged rationale basis for Moore's dismissal. Thus, when the BS is stripped away, he was fired for one reason only: his sexual orientation and non-adherence to far right Christian beliefs on sinful sexual orientations. It really boils down to religious based discrimination.

Thanks for the update, Michael... amazing and shocking to me that supposed professionals will make careers of serving folks charged with crime, but turn their backs on lgbt folks.

rapid butterfly | March 26, 2010 9:32 AM

Michael - I am a va attorney. I am interested in helping if I can, in this case and if there are others( though any help I can offer will almost certainly have to be on my own time due to certain restrictions on my practice; I am a legal services lawyer). I will try to e-mail you at the contact info that is up here at bilerico.

~mina

My office telephone is 757-622-2008

e-mail: mike@hamarlaw.com

I am stunned by this. I had no idea, and I am fairly knowledgeable about things going on in Virgnia.
If I missed this in the media at the time, shame on me. If it did not get air time, even if only in the gay media, I am sorry. Because this should have been made a cause celebre. And I surely trust it will be now. I will do my part.
Please keep us updated. And if there is any other way LGBT folks can help -- donations to legal costs, etc.--let us know.

Except for a small TV station in the Martinsville area and a tiny article in the Martinsville newspaper, the mainstream/straight media has never covered this story whatsoever - even though they have been told about it a number of times.

In contrast, the Washington Blade did several stories over the years and of course my personal blog had posts about it. Pam's House Blend has had some coverage too.

Didn't Sotomayor famously decide in a case when she was an appellate judge that the constitution banned a prison from taking away a gay prisoners job in a cafeteria just for being gay?

Let me google for a second... here we go!

Then-Sen. John D. Ashcroft (R-Mo.) engaged Sotomayor over a case in which an inmate had sued prison officials who had removed him from his food service job because he was openly gay, a move that, as Ashcroft put it, would "prevent disciplinary problems that could arise from having open homosexuals prepare food."

Ashcroft moved to a broader question: "Do you believe that there is a constitutional right to homosexual conduct by prisoners?" Sotomayor answered: "No, sir, there is not. . . . The only constitutional right that homosexuals have is the same constitutional right every citizen of the United States has, which is not to have government action taken against them arbitrarily and capriciously."

Ashcroft pressed on. "Are there any rights that are not protected by the Constitution that . . . you would like to see protected?"

"I have not thought about that in a while, sir. No," Sotomayor said.

http://www.washingtonpost.com/wp-dyn/content/article/2009/05/27/AR2009052703707.html

Sounds like you're on solid ground.