On March 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.