Honestly, I can’t keep up with Va. Governor McDonnell’s pratfalls. Anyone who reads this blog knows about his walk-backs of his homophobic and racist appeals to his “right-wing” base. Now he’s having to explain his new “literacy” test for ex-felons who want their voting rights back. This post by a William and Mary student is hilarious:
Let’s face it: Virginia Governor Bob McDonnell is an inept head of state who can’t even manage to keep his culture warrior pants neatly pressed. For anyone who’s been paying attention, he’s already done enough to disqualify himself from any Presidential ambitions he’s widely thought to entertain.
First, there was the embarrassing imbroglio over gay rights, when he had to act to quell a public riot over his Attorney General’s “request” to the states’ universities that they rescind any non-discrimination policies protecting gays and lesbians. Ken Cuccinelli’s AG opinion had been given whiskey courage by McDonnell’s own “guess the missing words” Executive Order that had promised not to discriminate on almost every conceivable basis — except sexual orientation. But when McDonnell faced the heat over Cuccinelli’s tone-deaf follow-up, he flamed out spectacularly, issuing a strongly worded “Executive Directive” that did protect against sexual orientation discrimination in state government, citing a number of legal sources he’d somehow missed in putting forth his earlier Order. The full story is here.
At the time, I wrote that McDonnell was an especially wimpy kind of culture warrior: One who believed in all sorts of natural law piffle about homosexuality, but didn’t have the courage of his convictions, when challenged. Today, he’s provided Exhibits B through about ZZ in support of my point. It turns out that sometime last week he’d issued some kind of play-to-the-Dixie-base proclamation that April was to be Confederate History Month. Unless April suddenly runs for only about two days, though, it seems like there’d be some time in that month to consider the role of, oh, slavery in the Civil War and the confederacy. Instead, silence on that small detail, in favor of this gush: It’s important to “understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War, and to recognize how our history has led to our present.”1
When initially questioned on the omission, McDonnell, typically, made matters worse with this read-it-to-believe-it statement:
McDonnell said he did not include a reference to slavery because “there were any number of aspects to that conflict between the states. Obviously, it involved slavery. It involved other issues. But I focused on the ones I thought were most significant for Virginia.”
It “involved” slavery? And that wasn’t one of the most significant issues “for Virginia”? Translation: It wasn’t one of the issues that the base wanted him to focus on, and he thought he could slip the Proclamation through. But it didn’t work. By today, the outrage — now reinforced by this inane ‘explanation’ — had reached a level eerily reminiscent of what had whacked him after GayGate. And again, McDonnell apologized (caved, backed down, went into pillbug protective mode) and wrote a brand new Proclamation that prominently mentioned slavery. As with the Executive Directive, you can’t fault the statement on content, even though we’re now more than a week into the month that’s being proclaimed:
Whereas, it is important for all Virginians to understand that the institution of slavery led to this war and was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders, and the study of this time period should reflect upon and learn from this painful part of our history….
So, here’s the disturbing pattern that’s emerged: McDonnell does something that he thinks will energize “the base” but doesn’t stop to consider that every other group then wants his head on a pike. Once they show up at the statehouse, complete with flaming torches and pitchforks, he chuckles over the silly misunderstanding, issues an apology, and tells them to return to their homes.
Didn’t he run on a platform of fiscal responsibility and competitiveness? Bob, forget about your incinerated Presidential aspirations and stick to basics for a few years.
- Wait! Our history has led to our present?! Why didn’t I think of that? ↩
VA Governor Bob McDonnell (whose topsy-turvy actions on gay rights I’ve chronicled here) now says that there would be no need for a state law protecting the LGBT community against discrimination. Why not? According to this quote (h/t Joe.My.God), there’s no problem in need of a solution:
I don’t know that we need it based on the numbers that I’ve seen….There really isn’t any rampant discrimination on any basis in Virginia. If you’re going to have a law, it needs to actually address a real problem.
This is a very prosecutorial/attorney-general way of looking at the issue: We only see cases that are reported, brought, and litigated. There’s something to this approach. After all, discrimination laws have a cost (suits can be frivolous, and give bad employees an “out” for lousy work), so we at least want a real problem before we’re going to pass a law.
Unfortunately, the McDonnell approach is staggeringly limited and naive. First, by the logic of his statement, there should be no anti-discrimination laws on the books: If there’s no “rampant discrimination on any basis,” then we should repeal all of the laws, given the cost I mentioned above.
I doubt McDonnell would support such repeal efforts, though. Why? I can think of three reasons, all of which are likely at work here. First, he doesn’t really believe what he’s saying. Second, it may be that there’s no way to repeal laws banning discrimination based on sex, race, religion, etc., without ensuring a swift, forced political retirement. (Compare: anti-gay discrimination.) Third, he realizes that laws have an important symbolic, messaging effect.
Of course they do. And enacting a law protecting against sexual orientation discrimination would send a powerful, state-sponsored message that the state stands with its LGBT citizens (although I’d be surprised if “T” were to be included) and against unjustified discrimination. McDonnell himself has conceded this point in the Executive Directive he signed a couple of weeks ago, affirming an anti-discrimination commitment (albeit not an enforceable one.)
But that’s not even the best reason to pass such a law. McDonnell doesn’t see — or pretends not to, anyway — that anti-gay discrimination is insidious. Gays and lesbians are much likelier to remain closeted in states where they can be fired just for being gay. And closeted people don’t claim discrimination, because you can’t discriminate against something invisible. But that just means that the discrimination is of a different, “don’t ask, don’t tell,” sort, not that it doesn’t exist.
Moreover, anyone who was discriminated against would be very unlikely to report it in a state that doesn’t protect the reporter. You’re demoted, transferred, or passed over for promotion because you’re a lesbian? A few may turn to the ACLU, Lambda Legal, or some other civil right organization, but most will swallow the discrimination and soldier on, having few occupational choices and no legal recourse.
Does any of that count as a problem, Governor?
Virginia AG Ken Cuccinelli can’t help himself. Shortly after getting slapped down by his own governor, Bob McDonnell, for directing the state’s universities to rescind whatever anti-discrimination policies they had protecting their LGBT communities, his not-so-inner cultural warrior came out during an interview where he referred to gay and lesbian “acts” as detrimental to society. (Please don’t get me started.) So there was the basis for his letter to the schools; a letter that I opined was both unnecessary and legally flawed (a conclusion that was later backed up for by a former Virginia AG).
Now comes Cuccinelli revving up a lawsuit against the new health care reform bill (likely to be filed once the thing is finally enacted). The basis of the suit is that Congress has no authority to mandate that individuals buy health insurance. Here, though, he has less choice because the Virginia legislature passed one of these vogue laws that purports to defend its citizens against any federal mandate. So it’s his job to argue for that law in court. But he’ll lose, for the reasons my colleague Andy Fichter made clear in his op-ed article yesterday. (It’s a good, clear read for non-lawyers.) This is just one more hare-brained effort to short-circuit the legitimate legislative process. Throw some bricks through a Democratic congresswoman’s window, shout “baby killer” on the floor of the House, argue that the bill can’t go through Senate reconciliation because it involves money (and so does Social Security! and you can’t do that through reconciliation), storm into Congress on the eve of the vote to bully and insult legislators — it’s all fair game, now. Good losers, they’re not, but whatever has happened to the respect we owe each other in civil society?
Yesterday, I wrote about the events leading up to Virginia Governor Bob McDonnell’s capitulation on anti-gay discrimination. Here’s a one-sentence recap: First, McDonnell rescinds the Executive Order that protected gays and lesbians from job discrimination in state government; then, emboldened by this action, state attorney general Ken Cuccinelli thunders to the state’s universities that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel like bossing them around, take umbrage; then, yesterday, more than 1,000 people — mostly VCU students — march against the homophobia in the state’s capital (Richmond).
So McDonnell’s people then draft a good document, called an Executive Directive, which creates no new rights but recognizes state and federal policy against anti-gay discrimination. Of course, there is no such statutory policy (either in Virginia or at the federal level), so the Directive speaks of the federal and state constitutional guarantees of equality. 1 More than that, the Directive contains rhetoric that I was both surprised and heartened to see from McDonnell, who is a quick enough study to have understood the political cost of shedding the sheep’s clothing of moderation that got him elected.
But the initial Executive Order showed that, in his heart, McDonnell is the same guy whose 1989 J.D. thesis paper at the Christian Regent University is a confused braid of Republican party swooning, unreconstructed theories of what makes a good family, and, of course, Christianist (not Christian) legal and social arguments. Arguing for the Family Protection Act of 1981, he wrote glowingly of its:
“traditional family support measures, such as…a restraint of federal intervention with state statutes pertaining to chld abuse, a redefinition of abuse to exclude parental spanking, and a prohibition of funds for homosexual legal services and other anti-family activities. The Act incorporates sound principles of federalism and self-government, while refusing to acknowledge homosexuality…as acceptable behavior and actions.” (emphasis added)
Translation: “Federalism is good except when I don’t like the results. Homosexuality, bad.”
If McDonnell thought that the Virginia Statehouse was his last stop, he likely would have stood his ground. But he knows that ideas about higher office require him to tamp down his homo-hating tendencies, and he’s putting pragmatics over principle. Once the firestorm hit, he’d have taken a hit if, say, Northrup Grumman decides not to headquarter in Virginia because of the state’s (and McDonnell’s) gay-bashing. Not the image that a pro-business conservative wants to cultivate. Note the order of those mentioned in the following statement McDonnell made to reporters in connection with this new Directive:
“It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth — and I simply won’t stand for that.”
Translation: “Business comes first. But I’m also worried about turning off a whole generation of younger voters, who might not want me in the Oval Office if I’m seen as too anti-gay.” (As this story shows, even in Mississippi teens are siding with their gay classmates over authorities that would deny them basic equality. Here, a school district canceled a prom rather than allow a lesbian to bring her date. Sigh.)
Of course, McDonnell is already paying a cost with the true believers. The nut-roots of what’s left of the Republican Party aren’t happy, and are setting up camp with Cuccinelli:
“Steve Waters, a Republican operative closely aligned with the party’s conservatives, said of the McDonnell statement: ‘There is trouble in the Republican house when the attorney general seems to side with the grass roots of the Republican Party and the governor and lieutenant governor seem to be straying away.'”
Will this lead to legislation protecting against workplace discrimination based on sexual orientation? Don’t count on that happening any time soon, but at least this kind of kerfuffle moves that day a half-step closer.
- Quick note: The document states that discrimination based on sexual orientation must only have a “rational basis,” which is likely enoughprotection for job discrimination claims. But the Directive isn’t particularly helpful for more controversial issues like marriage equality, where the best chance of success is in courts that hold sexual orientation to be a “suspect class” for equal protection purposes, thereby requiring that the state show a substantial justification for discrimination. ↩
As regular readers of this blog know, I’ve been following the story of how the Virginia Governor, Bob McDonnell, and his Attorney General, Ken Cuccinelli, have been working overtime to set the clock back on anti-gay discrimination. First, McDonnell issued an Executive Order that conspicuously omitted “sexual orientation” from the list of classes that the Executive Branch wouldn’t discriminate against (the former two governors had expressly included the category). Then Cuccinelli took the unprecedented step of writing a needless letter to the state’s universities, informing them that their policies against sexual orientation discrimination were in violation of state law. I responded to the first story here, and the second here.)
I’ve been quite gratified by the response over the past couple of days. Yesterday, Taylor Reveley, the President of William and Mary (my alma mater), issued a pitch-perfect letter in response. After noting that the process of reviewing the AG’s letter had just begun, he went into high dudgeon:
For now, let’s be clear that William & Mary neither discriminates against people nor tolerates discrimination on our campus. Those of us at W&M insist that members of our campus community be people of integrity who have both the capacity to meet their responsibilities to the university and the willingness to engage others with civility and respect. We do not insist, however, that members of our community possess any other particular characteristics, whether denominated in race, religion, nationality, sex, gender, sexual orientation, gender identity or expression, or any other of the myriad personal characteristics that differentiate human beings. We certainly do not discriminate against people on such grounds, or tolerate discrimination against them. This is the way we live our lives together at William & Mary, because we believe this is the way we should live our lives together. This is not going to change (emphasis added).
Then, today’s Richmond Times-Dispatch reported on the protest against these changes by about 1,000 students at Virginia Commonwealth University. (Here’s a link to the accompanying video, which for some evil reason won’t embed.) I’ll confess that I felt somewhat vindicated after I’d gotten into an argument with another W&M alum over at the school newspaper’s website over whether people would actually care enough to protest. (As Marge Simpson once said when seeking confirmation that gloating was wrong: “See?”) Go, VCU!
McDonnell is now channeling one of those cartoon characters that retreats in a panic by running through a succession of doors, leaving cut-out imprints of himself in each ex-door. Just a few hours ago, he issued something called an “Executive Directive” — not the same thing as an “Executive Order”, although the differences between the two are obscure. But the Directive is pretty good, even if it seems to have opened up a fissure between McDonnell and Cuccinelli. From the Directive:
Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. 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.
Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual’s job qualifications, merit and performance…. Any cabinet member, agency head, manager, supervisor or employee who discriminates against a state employee or prospective employee in violation of the law or this standard of conduct shall be subject to appropriate disciplinary action, ranging from reprimand to termination.
[C]ivility, fair treatment, and mutual respect shall be the standard of conduct expected in state employment.
McDonnell went as far as he could being true to his long-standing, social conservative convictions; convictions that he downplayed during his campaign. But when Cuccinelli’s letter caused people to take to the streets, the President of one of the state’s flagship schools to write a letter in opposition, and a Board member from another (George Mason) to declare the actions “reprehensible,” McDonnell realizes that what he’d unleashed might stand in the way of his political future, which is commonly thought to be extremely bright (and ambitious). So he’s backed down, bailed out, and run.
And really, I don’t care much about his reasons for doing so. I’m just warmed by the political heat that made this go away — at least for now. If the universities are wise, they’ll issue some generic statement in support of McDonnell’s Directive, declare that their anti-discrimination policies are in conformance with it, and essentially ignore Cuccinelli. And then figure out how to survive in a state that doesn’t financially support what they’re doing.
I might have been writing about William and Mary’s basketball team, which will play for the CAA championship this evening. But instead, I’m constrained to talk about something disturbing involving my alma mater, and the state’s schools more generally.
A few days ago, I reported on the rumor that Virginia’s new Attorney General, Ken Cuccinelli, had commanded the state’s universities to rescind their policies that prohibited discrimination against gays and lesbians. No one would talk.
Well, in an article that reminds us of the continuing vitality of and need for the mainstream media, the Washington Post obtained a copy of the letter and reported the story on Saturday. It does indeed “advise” the state’s schools to withdraw the policies, which he acknowledges are “benign.” This is one of the worst moves by a public official since — never mind, there are too many to choose from.
The letter never should have been written. The law isn’t as clear as Cuccinelli says it is. The cases in which the AG has found that such policies exceed the state’s authority involved municipalities or, in one infamous case, the Governor’s Office (when Gov. McDonnell was AG, he opined that Gov. Kaine had exceeded his authority with an Executive Order extending non-discrimination protection to gays and lesbians). None of them involved a university, and for good reason.
Although the state’s universities are of course “public institutions,” they’re not like municipalities, or state agencies, and everyone knows that. As even Cuccinelli recognizes in the letter, they enjoy a certain necessary amount of autonomy. But that autonomy isn’t only granted to allow the school to carry out its day-to-day functions; it’s also a recognition that universities need a certain freedom to act in order to flourish. Cuccinelli is right to say that they can’t contravene the General Assembly, but supplementing the state’s anti-discrimination policy isn’t the same thing as contravening it. In other words, he puts the burden in entirely the wrong place: If the Commonwealth of Virginia feels that it wants to put itself out there on the issue, it should be required to pass a law specifically stating that universities within the state system may not offer protection based on sexual orientation. (Update: A former governor and AG of Virginia, Gerald Baililes, agrees with me.) Presumably, even the newly red-again state isn’t stupid enough to do that. In the silence, the current list of protected classes should be regarded as a floor, not a ceiling — a floor on which the universities may build further protections, both to affirm their basic commitment to equality and — more practically — to attract the most qualified professors, administrators, staff, and students.
This will quickly turn into a PR nightmare for the state. Most of the members of the universities’ governing boards are staying mum for now, as they figure out what to do. But at least one member of George Mason’s Board of Visitors — a Republican, by the way — called the action “reprehensible.” Senator Mark Warner stated that Cuccinelli’s action will “damage the Commonwealth’s reputation for academic excellence and diversity.” A student at Old Dominion University opined that we’ll see “the gamut” of protests on this one. He’s right, I’d imagine — and hope.
None of this can penetrate the true believers’ thick skulls. One spokesman for the Family Foundation said: “I find it hard to believe that this would be the final straw in whether or not someone’s going to come to Virginia’s universities…They are some of the best universities in the country.”
Well, part of the reason for their excellence is their refusal to accede to paleolithic principles, even if the Commonwealth lags behind. And here’s a counterexample on the “final straw” argument: Me.
When I was down to the final, difficult decision about whether to attend William and Mary or Brown University — a close and difficult call — had this issue come to my attention, I would have chosen Brown. And if William and Mary and the other state universities (where “state university” is defined as a school that gets 14% of its operating budget, and none of its endowment from the state) continues to get slapped around by the state in this way, the entire state will be off my daughters’ list of college possibilities. So, there.
Even McDonnell wisely avoided addressing this issue directly when he was AG. Cuccinelli should have done the same, but apparently he’s determined to take down his own party and to make the state a place of last choice for anyone who cares about basic equality. The opinion isn’t self-executing, though. Let’s see whether the universities’ boards have the cojones to resist.