VA: Attorney General challenges governor's power to extend employment protections to gays

The GA could have fixed this, and didn't. Again.

This year, we had both a bill and a budget resolution seeking to codify the governor’s executive order into law.  Both failed.

I’ll have to take a closer look at this, ’cause this seems to be an example of why those throwbacks in Richmond needs to get off their butts and pass some protections with teeth.

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by: pgraydon @ Thu Feb 26, 2009 at 16:22:59 PM CST

Nor will they!

It will be years and years and years before there are enough non-homophobic Virginia legislators with the spine to stand up for even the slightest smidgeon of equality.

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by: S1 @ Thu Feb 26, 2009 at 16:30:30 PM CST

[ Parent ]

Welcome to the Regressive State (TM)

I am well aware that Virginia was the last in the union when it came to every major civil rights advance since the revolution, from freeing the slaves to women’s suffrage and on down the line.  I fully expect the state to be dragged along kicking and screaming by federal advances, which is why I will leave as soon as I have my degree in hand.  Not only do I dislike living here, I don’t want to see a dime more of my tax money than is absolutely necessary flow into this state.

While I am here, though, I will continue to do what I can.  The more people actually want to follow the federal mandates when they arrive, the better.

By the way, now that the !@#%ing GA has passed the “choose life” license plates, I think it is time to hit up Ebbin to introduce an “equality now!” plate next term.  Anyone care to take odds on that passing the house?  (Not that they would ever dream of unconstitutional free speech discrimination…)

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by: pgraydon @ Thu Feb 26, 2009 at 20:01:53 PM CST

[ Parent ]

Or, to put the state slogan a different way:

Virginia is for Lovers*!
* Some conditions and restrictions apply.

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by: pgraydon @ Thu Feb 26, 2009 at 20:06:13 PM CST

[ Parent ]

It's Virginia ...

... so you can expect a bad outcome.

By the way, Kaine's executive order was just a bit of window dressing. This suit has been sitting out there since 2006, and nobody in Kaine's office has made a serious effort to defend the governor's right to set employment practices for the executive branch. Kaine is in no way hostile to gays, though I wouldn't call him an ally either. But he has ambitions that make him timid about truly standing up for equality.

And, don't forget, this is an election year in Virginia. The Democrats have a tough primary battle coming up, which will likely deplete funds and result in some hard feelings throughout the party before we pick our candidate. The Republicans, on the other hand, already have their nominee, a graduate of Pat Robinson's bible school (need I say more?)

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by: S1 @ Thu Feb 26, 2009 at 16:26:47 PM CST

so a state agency is suing the governor?

"The Virginia Museum of Natural History is an agency of the Secretary of Natural Resources for the Commonwealth of Virginia.  A 25-member, gubernatorial appointed Board of Trustees acts as the Museum's governing body. It operates in association with the Virginia Museum of Natural History Foundation, a not-profit 501(c)3 organization that receives and administers funds for scientific, educational, and charitable purposes. The Foundation Board of Directors currently consists of 15 members from various locations across the Commonwealth."

Ok, if I understand VA politics correctly, the attorney general is an independently elected official.  So him suing the gov doesn't seem that surprising.  But the Virginia Museum of Natural History is governed by a gubernatorial-appointed Board of Trustees and is part of the executive branch of the state government.  I get that some level of independence is good in our museum operations, but suing the head of your branch of government?

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by: LauraG @ Thu Feb 26, 2009 at 17:12:08 PM CST

lies and slander

This unfortunately has nothing to do with the above post but is something I have to get off of my chest quickly or I'll explode.  Over at http://ravingatheist.com  the recently converted to Christianity blogmaster has put up a post saying that most rapists are card carrying liberals, and that rapists themselves are all pro-choice.  This man used to be in favor of a great many liberal policies, but since his conversion to Catholocism, has become a hardcore frothing at the mouth wingnut.  What the hell does this to people?

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by: thoughtform @ Thu Feb 26, 2009 at 17:40:54 PM CST

Perhaps...

just perhaps, he's projecting?  Wonder what he's been up to in his past.

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by: Rae @ Thu Feb 26, 2009 at 18:25:39 PM CST

[ Parent ]

Because...

People who see the world in absolutes are in a category all their own, whether they are Catholics or Atheists.  Your problem is that you assume that adherance to a political or religious belief (especially one that you identify with) tells you everything you need to know about someone's integrity and moral character.

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by: kevin @ Thu Feb 26, 2009 at 18:27:29 PM CST

[ Parent ]

Virginia worst conservitive state

I've worked with Equality Va and Roanoke Pride and I can tell you its like pulling teeth to get any elected Va offical to give thier word of support to anything concerning the LGBT they talk the talk saying how they support us, but do not walk the walk as soon as pressure is put on them by their colleages they bail on that support. It one of the reasons I'm leaving this state as soon as my son graduates.... I've given up on things ever chnging here. I live in southwest va and things here are very rural and not like they are in Northern Va or on the Eastern Shore Tidewater area, Southwest Va is still "MayBerry Country" we have churches on ever corner and rednecks in their pick-ups doing their normaly weekend sport drinking and cruising around looking for people they don't like to harass.

Sincerely
Brandi Parker
SWVA Rep Equality Va

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by: sweetbrandigirl @ Thu Feb 26, 2009 at 17:49:09 PM CST

what we get from a homophobic cracker AG and a spineless governor

Former AG Bob McDonnell, now running full-time for the governor's office, picked this fight to use the faggots and dykes -- that's what they call us behind our backs still -- as political weapons to scare redneck Virginians into putting him into office.  That Kaine has let his Catholic heebee-jeebees get in the way of our full defense is no surprise.

Thanks heavens we're looking at homes over in MD this weekend, though!  After growing up in Virginia and remaining her as an adult, I do not intend to be trampled and exploited by its political parties any longer.  MD may have given America Uncle Mikey Steele but their elected officials don't use the homer-seckshuls at modern Commies at every turn!

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by: greatwhitebear @ Thu Feb 26, 2009 at 18:33:38 PM CST

For clarification,

the Museum of Natural History is being sued by Moore under the Governor's Executive Order and in its defense - it is being represented by the AG's office - the Museum is challenging the Governor's power to grant gays a right to employment non-discrimination by virtue of the Executive Order.  Bob McDonnell, the former Attorney General who is the GOP candidate for Governor previously issued a non-binding opinion that made the same argument.

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by: Michael-in-Norfolk @ Thu Feb 26, 2009 at 19:02:37 PM CST

Nature of Governor's Executive Order

There's a nuance of law here that sometimes gets overlooked.  I just wanted to flag it.  

This is actually exactly the same situation we saw with Scott Bloch in the Bush Administration.  

When you read through these Executive Orders (both Clinton's, which Bush claimed to keep, and Warner's which Kaine kept) you'll see language saying that the policy grants no enforceable employment rights for employees.  It looks weird (and ENDA will get rid of this,thank goodness), but there's a reason.

If (as it seems) Mr. Moore was fired for being gay, the offense (legally) is not against Mr. Moore, but against the Governor.  Quick chain of reasoning:

There is no employment protection on the basis of sexual orientation in Virginia.  However, there is no requirement to discriminate, either (at least not in state employment).  That makes it a matter of management discretion.  As Chief Executive of the State, the Governor has the power to run the Executive Branch as he sees fit, including telling his managers how their management discretion is to be used (or not used).  The Executive Order is drafted under that power.

So what's at issue here given this Executive Order is not Mr. Moore's right to be treated fairly, it's the Governor's right to tell his managers to treat employees fairly.

Conceptually speaking (and personally irritating since I'm gay myself) there is no difference between this Executive Order and one ordering state agencies to use recycled paper.  They might have been allowed to decide whether to do that or not on their own previously, but the Governor can set a policy of using recycled paper only.  (I don't know if he's done this - it's a hypothetical example.)

So the offense the manager committed in discriminating against Mr. Moore is not that he violated Mr. Moore's rights (since Virginia doesn't think he has any), it's that he committed an act of insubordination by ignoring a clear directive from his boss (the Governor).  Mr. Moore shouldn't have to try to enforce this because, legally, he's not the one who has been harmed.  The offense was against the Governor, who apparently has chosen to not enforce his own personnel policy by punishing the manager.

Unfortunately, any determination to that affect would have to come from some internal Commonwealth of Virginia state employee grievance process - taking it to court isn't going to work.  Which means that, as much as it pains me to say it, the Commonwealth AG is probably right on the law.

Don't get me wrong, I guess it's possible that a court could find that firing someone for being gay is a violation of their due process rights and guarantee of equal protection of the law.  But I wouldn't hold my breath waiting for a Virginia court to do that.

If we can get ENDA passed, this kind of jumping through legal hoops can be ended, finally.  

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by: ChrisDC @ Thu Feb 26, 2009 at 19:55:23 PM CST

this is not new

The exec. order was ruled unconstitutional by then AG Bob McDonnell in 2006.

http://hamptonroads.com/2006/0...

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by: arsenalchick @ Fri Feb 27, 2009 at 01:28:39 AM CST

Advice to the AG to end the case quickly

This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, age, political affiliation, or against otherwise qualified persons with disabilities.

Just change the museum's position to the following:

We think Moore is transgender and, therefore, not covered by the policy even if the policy is valid so, therefore, we can fire him at will.

Summary judgment for the Museum.

Case closed - courtesy of the Barney Frank-HRC vision of what an acceptable non-discrimination policy is.

>^..^<

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by: KatRose @ Fri Feb 27, 2009 at 04:35:19 AM CST