Posts Tagged ‘Executive Order’

When Conservatives Implode: The McDonnell-Cuccinelli Death Cage Match

March 11th, 2010 No comments

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that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel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.

  1. 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.

“Sleeping Giant” of Student Protests Awakes in VA — McDonnell (Sort of) Backs Down

March 10th, 2010 No comments

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.

What to do About DADT Before It’s Repealed

October 14th, 2009 No comments

There’s some reason to be optimistic about DADT’s long-overdue repeal; maybe Obama wasn’t just talking last Saturday night, after all. This story about legislative stirring is a good sign. So is the newly “out”spoken military brass; this devastatingly effective essay against the policy by Air Force colonel Om Prakash appeared in Joint Forces Quarterly, and thus constitutes a clear (if not universal) military endorsement of the repeal. (Here‘s a more homely, yet effective brief against these inane discharges.)  Where Clinton failed to get buy-in for his “gays in the military” plan — and thereby impaled into legislation what had only been policy — Obama apparently has been doing the heavy background work needed to bring the military on board.

But no one thinks the policy will be repealed this year, and there is virtually no chance that Obama will issue an Executive Order halting the discharges in the meantime. He could, but he won’t: So let’s move on. Right now, we have the untenable situation that should remind one of, say, being the last to die in a war that’s been declared useless.

For the record, I don’t mind if actual gays use the policy to get out while they still can– come out and get out! They didn’t create this policy, and they shouldn’t hesitate to leave if military life under DADT becomes unbearable.

Most men and women in the military, though, don’t want to get out. Straight or gay, they define themselves as soldiers. (This is what’s most struck me in getting to know a few of those discharged under DADT, especially Alex Nicholson.) And it’s plain unconscionable for people to continue to be shown the door now that the policy looks dead.

My solution? Obama should let it be known, in whatever subtle or more directive ways are at his disposal, that discharges from now on should be limited to clear cases where someone “tells” –otherwise, the policy’s original intent that service members’ sexuality not be pursued should be revivified. This way, Obama avoids issuing an Executive Order, but stops the bleeding. I don’t care whether we know about this or not. (We’ll surely learn at some point, when the discharge numbers for 2009 and beyond are released.) Is there any reason not to do this?