Michael Hamar

Virginia Supreme Court to Gays: You Have No Employment Protections

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

Filed in: Marriage Equality, Politics, Politics
Tags: anti-gay bigotry, employment discrimination, Martinsville, Michael Moore, Virginia Museum of Natural History, Virginia Supreme Court

The results are in from the Virginia Supreme Court in the Moore v. Virginia Museum of Natural History case. Ducking any discussion of the issues, the Court issued a few sentence letter indicating that Michael Moore's appeal was rejected and that the Court found "no reversible error" in the lower court ruling. For those unfamiliar with the case, the lower court had ruled that Gov. Tim Kaine's Executive Order 1 (2006) was basically worthless and provided Moore - who was fired by the Museum because he is gay - with no cause of action for his wrongful firing. Moreover, the lower court totally ignored arguments concerning the violation of Moore's rights as a citizen under the United States Constitution.

Since Executive Orders carry more weight than Executive Directives, the Virginia Supreme Court's de facto affirming of the lower court ruling means that Gov. Bob McDonnell's Executive Directive 1 (2010) - issued to quell a political firestorm back in March - is less than worthless. As a result, state employees and students at Virginia's colleges and universities should assume that they have zero protections under McDonnell's Executive Directive and/or college and university non-discrimination policies.

The message to the larger gay community is that our lives, careers and livelihoods have less value than those of heterosexual Virginians and that religious based discrimination and bigotry is perfectly acceptable notwithstanding the language of the Virginia Constitution or the Virginia Statute for Religion authored by Thomas Jefferson himeself. As for the violation of the federal constitutional rights, the Virginia Supreme Court apparently could care less about the federal constitutional rights of LGBT Virginians.

Absent a written opinion explaining its action we will never know for certain what truly motivated the Virgina Supreme Court justices. However, with 29 states still permitting gays to be fired based on their sexual orientation and failure to conform with conservative Christian religious beliefs, the Court might have easily been following the thinking found in Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), wherein the Court stated as follows:

A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.

Today, more than ten years since that decision was handed down by this court, a number of states still have miscegenation statutes and yet there has been no new decision reflecting adversely upon the validity of such statutes. We find no sound judicial reason, therefore, to depart from our holding in the Naim case. According that decision all of the weight to which it is entitled under the doctrine of Stare decisis, we hold it to be binding upon us here and rule that Code, ยงยง [206 Va. 930] 20--58 and 20--59, under which the defendants were convicted and sentenced, are not violative of the Constitution of Virginia or the Constitution of the United States.

Fortunately, the United States Supreme Court thought differently and in its decision in Loving v. Virginia one year later it flatly reversed the Virginia Supreme Court's ruling and in the process ending the legality of all laws outlawing interracial marriage in the United States.

Some things indeed don't change in Virginia - at least not without federal legislation or federal court action. And the message to be taken away by LGBT Virginians? Until ENDA or federal legislation is enacted by Congress the choice is to either (1) remain in Virginia as a second class citizen or (2) leave Virginia. And for those contemplating a move to Virginia? I recommend: don't do it.

In closing, I stumbled upon an irony just today: the Danville News is bemoaning the fact that in the latest Policom economic strength rankings, Danville ranked 363 out of 366 metropolitan areas. Danville, which is in desperate need of new industry and new businesses, is a mere 30 miles from Martinsville, Virginia. That's right, the home of the homophobic Virginia Museum of Natural History. Does anyone - including the Virginia Supreme Court - honestly think modern, progressive businesses will want to relocate to a backward area like Danville in a state where religious based bigotry is completely tolerated? Somehow I think not.


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One of the lessons the haters either want to gloss over or ignore until they get zapped with a boycott that sucks tourism dollars and business relocations away from them is that hate costs you money.

Margaretpoa Margaretpoa | May 25, 2010 1:39 PM

People in Virginia as well as those in New Jersey are discovering the hard way what happens when you can't be bothered to vote. BOTH states, which just a year ago voted for a Democratic president, not only voted for Republican governors, but the variety of conservative with psycho teabagger ideas about the scope and operation of government. The rest of the people in this country better get a clue. McDonnell and Christie are your warnings. If you WANT education and services to be drastically gutted in favor of tax cuts for the wealthy and if you WANT civil rights legislation to be carved away, then, by all means, find something better to do than vote in November.

kathleen.of.norfolk | May 25, 2010 8:43 PM

Actually, the situation in Virginia has nothing substantive to do with McDonnell. The Commonwealth has long, going back to the Revolution, favored a weak executive. It is one of the states where a governor can only serve a single term. That his predecessor's executive order was thown out is not all that surprising. The state also does not elect judges. This issue must be dealt with either at the federal level or by changing the composition of the General Assembly. They are also the ones who appoint the state's judges. In all likelihood, this is going to have to wait until results of redistricting in 2012.

At least there's clarity on their situation now.

Sorry, Michael. I know you worked a lot on this case and you were right.

I moved from VA several years ago when they passed that abominable Constitutional amendment outlawing my marriage. So, I took myself to MD, where I at least don't pay for my own persecution.

I am not surprised. Frankly I would not be shocked if that were the outcome if it happened in any state that does not already have the laws in place to prevent it.

Michael...my brother

I have followed this case since I was made aware of it just over a year ago. To be honest, I am disappointed at the court's "opinion." Though I do not know the whole story, I am well read on your situation and, based on the evidence that has been presented, it appears you were not treated fairly.

Shame on Virginia.