McDonnell Order Does Not Protect Gays: Omission Based on McDonnell’s State Constitution Interpretation

Virginia Gov. Bob McDonnell issued an executive order last month protecting state workers from discrimination, but one particular group was left out: gays and lesbians. McDonnell’s Feb. 5 order, issued a month after he took office, “specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, age, political affiliation or against otherwise qualified persons with disabilities.

The policy permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans as contemplated by state and federal law.” The governor’s executive order was mostly non-notable — it continued a long tradition in Virginia gubernatorial history — but it was significant in that it omitted gay and lesbian workers, who had been included in executive orders issued by Gov. Mark Warner and Gov. Tim Kaine in 2001 and 2005.

“Had he simply not been the governor to take the next step, it would not have been noticed,” said Kent Willis, executive director of the American Civil Liberties Union of Virginia. “But what McDonnell did was to take us back. An executive order is only viable as long as the next governor lets it be. In a symbolic way, it takes civil rights a couple of steps backwards.” Willis, while disappointed, said that reaction to the move may be overblown.

“Legally, the executive order means very little,” he said. “State workers, as government employees, are protected by the Constitution, where private employees don’t necessarily have that protection. The [Commonwealth] of Virginia, on the basis of Supreme Court interpretation and on the basis of the Constitution, can’t be discriminatory based on sexual orientation. The executive order doesn’t change that.

” Willis cited in particular the case of Romer v. Evans, a 1996 decision in which the Supreme Court ruled that a Colorado statute prohibiting the designation of homosexuals as a protected class was struck down as unconstitutional. “Technically, McDonnell did not reduce the rights of gays and lesbians in state employment,” Willis said. “The problem is the message.

There’s all kinds of subtle ways people are discriminated against that are difficult to detect and difficult to prove. Kaine and Warner were sending a message to people who were responsible for hiring and firing not to discriminate. McDonnell, by expressly removing [the clause], seems to be endorsing subtle kinds of discrimination against gays and lesbians.” Stacey Johnson, press secretary for the administration, would disagree.

“The governor absolutely does not discriminate and there is no reason to ever think or say he would,” she insisted. Johnson said the decision to omit gays and lesbians from the executive order was motivated by McDonnell’s interpretation of the state constitution in the time he served as attorney general. “He found when he was attorney general that it was illegal to put [gays and lesbians] in the executive order and that the decision must be made through the General Assembly,” Johnson said.

In an opinion dated Feb. 24, 2006, then-Attorney General Robert McDonnell said that, in an executive order issued by former Gov. Mark Warner, “the addition of sexual orientation as a protected employment class within state government was intended to, and in fact did, alter the public policy of the commonwealth.

It is further my opinion that changing the public policy of the commonwealth is within the purview of the General Assembly; therefore, that portion of Executive Order No. 1 is beyond the scope of executive authority and, therefore, unconstitutional.” Johnson defended McDonnell’s actions. “He hires and promotes based on merit and skill and opposes discrimination,” she stated.