Virginia: A very ‘special right’ to ignore the Fourteenth Amendment?

The Loudoun Times-Mirror has an article this morning linking the AG’s letter to university presidents to his anticipated opinion on the authority of our own board to update Loudoun’s Equal Employment Opportunity statement. Once again, it’s necessary to point out that in neither case do the policies prohibit “discrimination against gay, lesbian and transgender” people. They prohibit discrimination against ALL people on the basis of sexual orientation, and sometimes gender identity. For the purpose of political misdirection, it’s important to characters like Messrs. Marshall and Delgaudio that such policies be described as if they only apply to some people, but that’s not the way the law works.

Virginia Attorney General Ken Cuccinelli started an uproar on college campuses last week when he said colleges could not ban discrimination against gay, lesbian and transgender students.

Now, Loudoun’s Board of Supervisors likely can expect a similar directive from him regarding the county’s employment policy.

Loudoun supervisors voted Jan. 6 to include homosexual and transgender individuals among the groups protected from discrimination in the county’s employment policy.

Del. Bob Marshall (R-south-central Loudoun) questioned that move, asking Cuccinelli to issue an opinion on the board’s action.

Marshall said the board’s move was illegal—the same statement Cuccinelli recently issued in a letter to the state’s colleges and universities.

The state attorney general’s letter said state institutions cannot include sexual orientation in their nondiscrimination policies without first getting approval from the General Assembly.

The “opinion and advice” offered in the letter is just that – the opinion and advice of one lawyer. Other lawyers have expressed robust disagreement with the AG’s selective interpretation of Virginia law. Furthermore, the letter itself demonstrates a clear propensity for activism. The AG is supposed to issue opinions only in response to requests from individuals who have legal standing, and the request published. No such person has been identified, so what prompted this action? Mr. Cuccinelli’s apparent activism in this case makes any future opinions from him, at least in the area of civil rights, highly suspect.

Although the article suggests that the pending opinion on our own Board of Supervisors action is the equivalent of the one in the university letter, they do not actually pertain to the same parts of the Virginia code. College boards and local governments are entirely different things, and are addressed differently in the code with regard to their authority to set policy; a sweeping declaration that no state agency or public institution can determine its own nondiscrimination policy “absent specific authorization from the General Assembly” is, at best, overreaching. That said, while the particular sections of the code ignored by Mr. Cuccinelli’s interpretation in the case of our local board action may be different from the sections he ignores in the case of the universities, the principle that unites them is the same: Mr. Cuccinelli’s assertion that the law and public policy of Virginia requires state agencies and public institutions to permit discrimination on the basis of sexual orientation and gender identity.

That alone is stunning, given that the Supreme Court has ruled such a public policy unconstitutional under the Fourteenth Amendment. If, in fact, the public policy of the Commonwealth of Virginia is in violation of the U.S. Constitution, it might be good to get that cleared up once and for all.

In any case, neither the college boards nor our Board of Supervisors need to do anything in response to this. They can simply say “Thanks, but no thanks.” There is no force of law behind an AG opinion, and for any of these policies to be challenged in court, someone with standing would have to file a lawsuit. And in order to establish standing, that someone would have to demonstrate that they are in a position to be harmed by these policies. Since it is impossible for someone to be harmed by not being permitted to discriminate against someone else (although it might be amusing to hear them argue that they are), that seems unlikely.

I have a strong suspicion that Mr. Cuccinelli desperately wants there to be a lawsuit, and is hoping to instigate one by bullying localities and public institutions with good policies to back away from them and allow unlawful discrimination. His self-serving behavior should be ignored.