Republicans uphold law with respect to “sexual orientation” as a protected class
By JR Hoeft | Monday, March 8th, 2010 | PolicySo, here we are.
Bob McDonnell has been elected Governor. Bill Bolling re-elected as LG. Ken Cuccinelli our new Attorney General.
All campaigned, mainly, on creating jobs and a positive economic climate in the commonwealth.
All good men. All well intentioned. But why in the heck are we talking about protected status for gays and lesbians in the midst of a budget crisis?
Well, of course it’s about jobs! This wouldn’t even be an issue if it weren’t for Maryland trying to lure Northrop Grumman away from the Commonwealth.
But that’s a diversion.
Let’s start at the most logical place: Governor McDonnell.
McDonnell told Bearing Drift in an exclusive interview that he accepts the responsibility that comes with being a decision maker, and, in the case of providing protected status to homosexuals at universities, it was McDonnell, as Attorney General, who advised then Governor Tim Kaine that signing an executive order maintaining protected status for sexual orientation was not under the authority of the executive branch and needed to be codified by the legislature.
Now, as governor, McDonnell has made a similar decision by not renewing that executive order, thus inviting his Attorney General, Ken Cuccinelli, to advise state universities and colleges on what they should do.
Should we then be surprised by Cuccinelli’s advice? Cuccinelli advised, virtually identical to McDonnell’s as AG: don’t make decisions based on sexual orientation!
According the Attorney General’s office:
“The Attorney General is telling the universities what the law is. The people coming out against this don’t dispute his understanding of the law. The simple fact is that some Virginia Universities are not in line with the law because the General Assembly is the only body in Virginia which can create a ‘special class’ of protected people. If you want a policy change, you need to follow the law and change state policy, not exceed your jurisdiction and establish special classes of individuals.
“The Attorney General is upholding the rule of law.”
I don’t fault Cuccinelli at all. He is on about as solid ground as you can get.
And I certainly don’t fault the governor: He’s been on solid ground since being Attorney General.
No, in reality, the issue lies with the General Assembly – and specifically, the General Laws Committee of the House of Delegates.
Government is about laws – not interpretation.
Warner and Kaine tried to “interpret” what the anti-discrimination “laws” should include…but “laws” are left to the General Assembly – which McDonnell and Cuccinelli have clearly stated.
Under Warner and Kaine, they knew that they couldn’t have a new “protected status” pass the legislature, so they added it as an executive order.
Now, along comes McDonnell who merely upholds the laws as written, along with his diligent Attorney General, and suddenly we live in an era where it’s the executive branch that is supposed to dictate policy?
No.
Last I checked, how a bill becomes a law starts in the legislature.
And three times – HB 1116, HB 1287 and SB 66 – the legislation failed.
But why?
Perhaps the best argument comes from Sen. Mark Obenshain who said that should a bill protecting ‘sexual orientation’ become law the Commonwealth would open itself up for extensive litigation by those who claim they have been discriminated against regardless of their job qualifications.
Perhaps.
But the bottom-line is this: if ‘we the people’ want this law changed, we should elect people who believe in changing it in the right and proper way – through the legislature. We run a very dangerous and slippery slope if we expect the law to be changed by fiat by the executive branch – or at least it we expect the law to be put on hold every year by executive order.
Personally, I think the legislature should add “sexual orientation” to the books as a “protected status”. I also think most, if not all, Universities in the commonwealth are still going to uphold gays and lesbians as protected when it comes to employment and enrollment. But that’s irrelevant.
We live in a system of laws. We should not take the easy way out by having the executive branch interpret the law for us as the Democrats have for the past eight years.
It’s about time we followed Virginia Code again in the commonwealth.
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About the author
Conservative to the core; liberal with his opinion! J.R. has been involved in politics for over a decade and has worked on several campaigns in Hampton Roads. He has served on the Executive Committee of the Republican Party of Chesapeake and the Central Committee of the Republican Party of Virginia. He is also the director of “Blogs United” in Virginia. E-mail J.R.. Follow J.R. on Twitter.
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17 Responses to "Republicans uphold law with respect to “sexual orientation” as a protected class"
If I was the person making the hiring/firing decisions for a company:
I don’t care what the color of your skin is, I don’t care what gender you are, I don’t care if you’re disabled or not (I am, and don’t mind telling people), and I do not care what your sexual orientation is.
I would ask one question, and one question alone: do you have the skills for the job at hand?
I would ask that with absolutely no strings attached
Well said, Michael.
The Cooch lays down for absolutely no one!
Well said JR.
People need to call their Delegates and Senators and encourage them to vote for the addition of “sexual orientation” into the state’s non-discrimination policy. Not Cuccinelli.
Yes, of course you can duck behind the specific legal requirement, but we should expect our top elected leadership to be statesman as well. There was absolutlely no reason for the AG to advise anyone of what the law is; after all, he is not the only person who can read. No, he wrote his guidance to please his own right wing base, knowing that his unneeded advice would be divisive and would serve red meat to those who supported his election. If Northrup Grumman leaves Virginia off the list, he will have gotten exactly what he deserves, and we Virginians will be the losers.
Has the economy gotten so good that this is what we’re concerned about?
I’m getting a bit tired of some people being in a “protected class” and some people not. Whatever happened to “equal protection under the law?”
Mike, he’s the AG of the Commonwealth. His JOB is to provide legal advice to state agencies and that is exactly what he did, informing them that their policies do not line up with state law, especially after McDonnell failed to renew the Warner/Kaine executive order that was in violation of Virginia’s Constitution.
That said, there is no reason for the House to not act on SB66 and provide the legislative fix. Obenshain’s argument makes sense but would only apply to anyone unfairly dismissed since McDonnell came to office and Kaine’s policy went out to when whatever solution is finally signed into law. And even then, Virginia, as an at-will state, can find any number of reasons to have fired someone beyond their sexual orientation.
What a lot of folks are missing is that Cuccinelli’s letter has changed NOTHING. Schools will still have their policies, the state is merely advising that those policies may not hold up in court should they be challenged. THIS DOES NOT IMPACT STUDENTS. Many student bodies feel this means their status at school is challenged and that is not the case. It’s an employment policy.
All of that said, the moment someone is fired over sexual orientation, there will be one hell of a lawsuit and I would expect the courts to side with the plaintiff as a matter of civil rights.
The bottom line is that if you are AGAINST protecting people from discrimination then you are FOR discriminating against them. And if you look at the thesis, and Cuccinelli’s past statements on gay issues, it’s not hard to come to that opinion about the governor and attorney general.
[...] don’t agree with J.R. Hoeft over at Bearing Drift very often, but I agree with him that we need to elect people to the General Assembly, especially [...]
steve,
i personally have no idea what the legallity is of the state school policies, but outcomes of the rules themselves aside, if it is true in fact that the schools can NOT impliment such policy without legistlative approval, you think that does not matter at all? And that we should just do things because someone thinks they are good regardless of law?
I thought you guys were calling Bush King George and Bushitler for 8 years because he didnt govern by rule of law? How is this any different in principle if it indeed is illegal for the schools to do so?
But as pointed out earlier as far as pratical asspects, this hasnt changed anything – and the second someone gets fired for being gay theres going to be a huge lawsuit.
Jason,
am i correct that SB66 only applies to government employers and not private employers?
If this is the case, i see this becoming reality a sooner in upcoming years.
Last time I checked, the penalty for a crime against a homosexual is the same as the penalty for committing a crime against a heterosexual. That is called equal protection under the law, something that is not at issue here.
Bob McDonnell and Ken Cuccinelli have both done the right thing here. J.R. is correct in stating that the executive order issued by Gov. Kaine was not on par with the law. The executive branch simply does not have that authority. I have also seen it suggested that Gov. McDonnell and the Attorney General should not have shifted any of the discussion to those “divisive” social issues during this time of economic crisis. However, like their stand on healthcare and their tough fiscal decisions, this goes much deeper than the fiscal and social debate, and it goes to the heart of the matter of liberty. These homosexual “rights” often lead to infringements on the First Amendment. We have already seen, the government bar Tony Perkins, a former Marine, from speaking at Andrews Air Force base due to his opposition to the repeal of DADT. Not to mention that students at many colleges now find their right to free speech constricted to “free speech zones”! Are none of my libertarian friends upset at these developments? Or are they not socially libertarian federalists, but rather social liberals?
I would not support adding “sexual orientation” to the list of protected classes from a legislative point of view either. Because we have already seen the beginnings of what happens when we do that. Liberty is decreased and the state’s power is increased.
I believe the outrage is reserved for the basic distinction that just because sexual preference is not a protected class in Virginia law, does not mean they should be discriminated against. Thank goodness that most members of civil society will not do so whether the attorney general writes his unnecessary opinion or not.
How many “protected classes” do we have now? Age, sex, disabled, ethnic, Native American, religion, now we have sexual preference with others pending and each with a straw in the Government milkshake. As we continue dividing and separating people based on specific characteristics, when will we ever be unified on anything?
I see this as liberal “earthquake damage” to our society where these cultural divisions are fractures in the crumbling foundation of what previous generations built. What was that old saying – “divide and conquer”? It has proven true in great civilizations throughout history, and we are seeing it happen before our eyes as we continue to divide ourselves into tribes who are at war with each other because groups of us consider ourselves different from everyone else.
Tim, as long as aspects of a person’s life can be used to differentiate them under the law and within our society, then they need to be protected under the law. Steven, I’m sure you’re aware that it’s only as of October, 2009, that attacks against a person based on their sexual preference or identity were included as hate crimes, much to the protestations of some Christian preachers as, in their minds, this means they can’t preach against homosexuality anymore…protection of life apparantly is outweighed by hellfire and damnation preaching.
As long as there are heterosexuals, such as my brothers-in-law who, much to my own shame, are intensely homophobic, then there should be a protection against discrimination.
Fortunately, Governor McDonnell in no uncertain terms said yesterday he will not tolerate discrimination within his administration. I will take him at his word.
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