Equality Virginia: Attorney General Opinion Endorses Discrimination Against Gay and Lesbian Virginians
(Richmond) – Equality Virginia condemned an official opinion issued today by Attorney General Robert McDonnell that said the Governor does not have the authority to include “sexual orientation” in an Executive Order protecting state employees from discrimination.
McDonnell argues in the opinion that, because the General Assembly has not acted affirmatively to grant protections to people based on real or perceived sexual orientation, the Governor has no legal authority to extend such protections to state employees.
The Opinion was issued the day after the General Assembly missed a critical opportunity to affirm that state policy does protect state employees from discrimination based on sexual orientation by rejecting the nondiscrimination language from the budget introduced by former Governor Mark Warner. Yesterday, the Senate and House voted to accept committee amendments removing the language at least in part because, as explained by the Senate Finance committee in proposing Item 4-6.00#1s, the budget language was “unnecessary” and “duplicative” of existing protections including the Executive Order.
“Governor Kaine is the Chief Personnel Officer of the Commonwealth and is granted broad constitutional and statutory rights to set policy for the employees he manages,” said Jay Squires, EV Board Chair and Richmond attorney. “McDonnell’s opinion finds that the Governor, like a locality under the Dillon Rule, only has the authority expressly conferred on him by the legislature. This interpretation is in conflict with generally accepted principles regarding the separation of powers of the legislative and executive branches of government, and flies in the face of years of precedent.”
The Attorney General’s opinion was requested by Del. Robert Marshall (R-Springfield), who is one of the primary architects of the anti-gay constitutional amendment to the bill of rights that will be before voters this fall. As Attorney General, McDonnell fills a quasi-judicial function in responding to requests like Marshall’s which was submitted in mid-January.
“In one of his first official acts as Attorney General, McDonnell has shown that, in issuing official opinions from his office, he will be an ‘activist judge’ who will strain to reach legal conclusions that will please the most narrow-minded of the constituents to whom he must feel he owes last fall’s slim margin of victory,” said Dyana Mason, Equality Virginia Executive Director. “It is sad that in a state where 87% of voters support the right of gay men and lesbians to be free from discrimination based on sexual orientation, Attorney General McDonnell felt that he had to placate a small minority with this obviously result-oriented, political opinion.”
In addition to the budget amendments, the Senate also rejected SB 700, patroned by Senators Mamie Lock and L. Louise Lucas that would have prohibited discrimination against all Virginia employees, including local and school board employees. Legislators rejected the bill in large part on the basis that the protections sought were already available to state and local workers through the Executive Order and other state and federal laws.
“The General Assembly has had more than one opportunity this session to state affirmatively that it is the public policy of the Commonwealth that those who work for the Commonwealth and its localities should do so free from discrimination, but it has chosen not to do so,” said Mason. “Now that McDonnell has removed the primary excuse given for the failure to act ““ that it was not necessary to do so ““ we will be looking to the legislature to make it clear what the state’s policy is. If the members of the General Assembly refuse to make an affirmative statement, one must only assume that they think it’s appropriate to discriminate.”