Once again our activist Attorney General has offered his advice to a Virginia agency, only to be politely told “thanks, but no thanks.” From the Washington Post:
The board that oversees Virginia’s juvenile correctional facilities agreed Tuesday, for a second time, to ban discrimination based on sexual orientation despite being counseled against such action by Attorney General Ken Cuccinelli II.
The board voted 5 to 1, rejecting Cuccinelli’s contention that only the General Assembly can designate a special class of citizens.
You could sort of guess that this wasn’t going to go Mr. Cuccinelli’s way by the use of the term “evidence-based” on the Board of Juvenile Justice website.
Meanwhile, the AG continues to belligerently insist that the code of Virginia requires state agencies and public institutions to permit discrimination on the basis of sexual orientation, the health and safety of children in state custody be damned. And Governor McDonnell is again in the position of having to “clarify” that the law and public policy of the Commonwealth does not explicitly violate the Equal Protection Clause of the 14th Amendment. Here is an excerpt from the governor’s directive in response to Mr. Cuccinelli’s activism with regard to Virginia public colleges and universities:
[Emphases 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.
So far as we know, Virginia is subject to the Equal Protection Clause. Therefore, state agencies, institutions and localities should feel free to dismiss Mr. Cuccinelli’s ideologically-based opinion on this matter and do the right thing – as did the previous Loudoun Board of Supervisors. As we pointed out here,
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.