“The back and forth came after more than 1,500 students and supporters rallied Wednesday at Virginia Commonwealth University to protest Cuccinelli’s letter. Waving rainbow flags, chanting ‘Down With Hate‘ and wielding signs that read ‘Jesus Had 2 Dads, Too‘ and ‘Homophobia Is A Sin,’ the animated band assembled near the student union, before 200 later broke away and marched down a main road within blocks of the Virginia State Capitol. Thousands organized on Facebook to discuss the rulings. One Facebook group, ‘We Don’t Want Discrimination In Our State Universities and Colleges,’ has more than 5,000 [now 6,500 -Ed.] members.”
I didn’t really expect to be saying this, but: Poor Governor McDonnell.
“I think this action is incredibly disappointing, to the point of being shocking,” said Michael P. Farris, the chancellor of Patrick Henry College, a private Christian college in Loudoun County. “The deeper message it sends is that people who think homosexuality is a sin are wrong. They are irrational.”
Farris, a lawyer and constitutional scholar who ran for lieutenant governor in 1993, said he thinks McDonnell’s policy statement will be used in courts to help challenge Virginia’s constitutional amendment banning gay marriage, which McDonnell supported. “I don’t think the people advising him were doing anything other than reading polls,” Farris said.
Sure, Mike – because public opinion only matters when it’s yours. Thanks, got it. Then there was this, delivered in a “a five-minute anti-gay speech that suggested criticism of Cuccinelli was motivated by anti-Catholic bias” by the dependably offensive Delegate Bob Marshall:
“There’s no such thing as an executive directive. It’s a press release with fluff around it.”
Bob, I’m sure the governor appreciates your support, too. And we wouldn’t want to overlook the response from the Attorney General himself:
“I applaud Governor McDonnell for the tone he is setting for the Commonwealth of Virginia. I will remain in contact with the Governor and continue to work with him on issues important to Virginians.”
I’m not sure that we can believe this. It seems to me that the “tone he is setting” is saying something like “My attorney general made a mess, and I have to clean it up.”
On Friday, the AG was continuing to defend his legal analysis, although it’s increasingly clear that it’s a poorly argued opinion, relying selectively on some sections of Virginia code while overlooking others. Public colleges and universities were created under a specific title of the code which grants them the power through their presidents and boards of visitors to “make all needful rules and regulations” concerning their operations and to “generally direct the affairs of their institutions.” One reason for this is that institutions of higher learning, for their “product” to be of any value, must meet eligibility standards for things like student loans and professional accreditation (consider that even private Liberty University, founded by the late Jerry Falwell, includes sexual orientation in its nondiscrimination policies for this reason). The AG is attempting to apply the Dillon rule to our public colleges and universities as if they are the equivalent of the general class of “local governments,” completely ignoring the specific statutes that created them as distinctive.
The poor analysis and transparent activism underlying this example of his “opinion and advice” means that any forthcoming AG opinion regarding Loudoun County authority must be viewed with a great deal of skepticism. Local governments and public colleges are entirely different entities in Virginia law, but it’s also true that types of local government have different statutory powers. The AG’s letter suggests that he is much more interested in obtaining a broad public policy result than he is in acknowledging such distinctions.
Our Board of Supervisors would not have amended the county government’s Equal Employment Opportunity statement if it didn’t think that such action was legally defensible. The governors’ executive directive, which reads in part [emphasis added]:
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. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited
is very clear: Non-merit factors such as sexual orientation may not lawfully be considered in governmental employment decisions. Given this strong endorsement by the governor, the question that remains is: If he understands what the Equal Protection Clause requires, why did he not use the influence of his office to ensure passage of a legislative correction before the end of the 2010 session? Such positive action would have put an end to the issue. The governor now appears to be stuck with an attorney general who will not uphold his directive. This could get awkward.