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Cuccinelli stands by advice to colleges on gay policies

Rosalind Helderman

Attorney General Ken Cuccinelli said this afternoon that it remains his legal advice that Virginia's colleges and universities should remove language dealing with sexual orientation from campus anti-discrimination policies.

In brief comments to reporters after briefing lawmakers on redistricting laws, Cuccinelli said he still believes colleges are limited in their ability to adopt policies by authority extended to them by the General Assembly. The legislature has repeatedly declined to embed legal protections for gays into statute.

"What I said in my March 4 letter was accurate advice under Virginia law, and it still stands," Cuccinelli said, referring to a memo sent to every college and university last week that touched off a political uproar.

Colleges, he said, "don't have any more authority than the General Assembly gives them--which is a similar position as the localties. And until the General Assembly gives them more authority, their quarantined by what they've got.".

At the same time, Cuccinelli did not challenge a core piece of the legal reasoning included by Gov. Bob McDonnell (R) in a non-legally binding executive directive he issued this week on workplace discrimination. In the directive, McDonnell said he believed discrimination on the job on the basis of sexual orientation would violate the equal protection clause of the U.S. Constitution because it is irrational. Cuccinelli said he agreed.

"Where singling any group out is irrational based on the underlying consideration, say hiring, then it's our expectation that the equal protection clause would protect an invidual in that circumstance. That's everyone," he said.

Including on the basis of sexual orientation? "Absolutely. Everybody. Obesity, sexual orientation, any group that you can come up with that is a reasonably articulable group, if you irrationally discriminate against them."

Cuccinelli declined to comment on an analysis by conservative constitutional scholar Michael Farris that McDonnell's legal conclusion could be used to challenge Virginia's constitutional amendment banning gay marriage in court. But, of the governor's executive directive, he said, "We certainly don't see anything the governor would do by himself without the General Assembly as changing the policy of Virginia."

Which brings us to a letter sent to the governor this afternoon by the gay advocacy organization Equality Virginia. In the letter, the group's executive director Jon Blair thanked McDonnell for his directive, which he called a "real step forward" but asked that he go beyond what Blair termed the "largely symbolic promise" of the directive and push for embedding legal protections in Virginia code.

"Failure to take positive action during this legislative session to secure passage of a state policy against discrimination based on sexual orientation and gender identity was a failure to deliver on the promise of a 'Commonwealth of Opportunity' in the eyes of the thousands of gay, lesbian, bi-sexual and transgender Virginians (and the many thousands more Virginians who count themselves among their families and allies)," he wrote.

Blair also asked McDonnell to appoint a special counsel to enforce his executive directive, arguing Cuccinelli's letter indicates he and his staff would be "unable to render" legal services to colleges and universities on the issue.

UPDATE: Cuccinelli later said he was not surprised that there was reaction from college students to the sensitive and emotional issue.

"Campus activism is an old tradition in America and it's good one," he said. "Those folks are expressing themselves on a matter that's been in the political arena for a long time. Our role isn't in the political arena on this subject. Our role is to give legal advice, to state what the law is."

By Rosalind Helderman  |  March 12, 2010; 3:30 PM ET
Categories:  General Assembly 2010 , House of Delegates , Ken Cuccinelli , Robert F. McDonnell , Rosalind Helderman , State Senate  
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