Thankfully, I survived oral argument before the Virginia Supreme Court on the afternoon of March 31st, and, according to the boyfriend, my client, his father and a friend of his, all of whom were all in attendance, I did a good job. Since it is the first time I have ever made an oral argument to a state supreme court, to be honest, I have no frame of reference for comparison. I likewise have no idea of what the Court might decide to do in the case. I feel that I hit all of the points I wanted to make and I also brought in Gov. Bob McDonnell's 180 degree change of direction and unintended concurrence with our 14th Amendment equal protection argument in the form of Executive Directive 1 (2010).
Ironically, the Richmond Times Dispatch's main editorial on Wednesday morning was on Virginia's need to extend non-discrimination protections to all citizens, including LGBT citizens. Along with U.S. Supreme Court caselaw I referenced in oral argument, I was aso able to reference both the morning Times Dispatch editorial and the prior day's Roanoke Times column by a Virginia State Senator urging colleges and universities to continue non-discrimination policies that include sexual orientation in defiance of Ken Cuccinelli's directive. In short, I argued why the justices need to resolve the issue statewide once and for all by deciding the Moore case.
Post oral argument, we now play the waiting game. Here are highlights from Wednesday morning's editorial from the Richmond Times Dispatch, one of the most conservative papers in Virginia):
[I]f such laws [non-discriminations laws] are to remain on the books, then the absence of sexuality as a category remains instructive -- and troubling.... although we have expressed our reservations regarding hate crimes legislation generally, we find the deliberate exclusion of violence against homosexuals deeply disturbing. The message rings out loud and clear.
We trust McDonnell's commitment to non-discrimination in state government. We would expect no less from any governor. We also believe it is time for Virginia either to repeal its non-discrimination laws -- or to make them truly comprehensive. As the first option seems unlikely, it is time to act on the second.
As unfortunately seems to be the norm for many gay rights cases, today's oral arguments drew almost no attention from the mainstream media. Only WRVA-1140 covered the story and interviewed both Michael Moore and myself after the oral argument. Unlike most reporters I have experienced, Jay Hart, the news reporter/anchor we spoke with had actually looked at the briefs in the matter. His audio report on the hearing is here. The following are highlights from the radio stations news web page:
Richmond, VA (1140wrva.com) - Michael Moore was fired from the Virginia Museum of Natural History back in 2006, and he hopes the state supreme court will listen to him. He and his attorney Michael Hamar had a hearing in which Hamar had 10 minutes to verbally argue... along with his brief... why the court needs to hear the case. He points out although his client was probationary at the time he was fired, a U.S. Supreme Court case says that does not mean he can be denied an appeal when his constitutional rights are violated.
Moore has moved to Florida and took the flight up to hear the brief argument. He says what happened to him has given him the impetus to get ready to go to law school. He says he called some 15 attorneys, looking for one to take his case, and didn't find one until he contacted Hamar. The Norfolk lawyer says many attorneys will not touch a gay rights case.
He argued to the 3-justice panel that newspaper editorials are talking about a need for a law and case law, and he pointed out a university official urging an ignoring of state attorney general Ken Cuccinelli's legal opinion that state universities and colleges cannot protect gay students and employees.
He [Moore] claims the museum's director at the time had said in a meeting three months before firing Moore that he objected on religious grounds to working with a homosexual employee. Moore claims at an August meeting, the director said he would "take care of it" in spite of advice he could not do it. No word on when the justices will decide on hearing the case.
It is Moore's position that the Circuit Court ruling was in error because it ignored the standard established by the United States Supreme in a case which involved a fact situation very much analogous to that surrounding Moore's termination of employment. There, the United States Supreme Court held that non-tenured/probationary employees could not be denied a right of appeal if their termination stemmed from their denial of constitutional rights. In Moore's case, we maintain that his constitutional rights to equal protection under the 14th Amendment (Romer v. Evans), right to privacy in his personal life and intimate relations (Lawrence v. Texas) and freedom of religious belief (First Amendment) were violated by the Museum in firing him.