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that their similar anti-discrimination policies aren’t consistent with state law and “requests” that they be repealed; next, universities, perhaps sick of the fact that the state only notices them these days when they want to cut their already-paltry funding or when they feel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