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McDonnell pledges not to discriminate, backs Cuccinelli's legal reasoning on gays

Rosalind Helderman

Washington Post metro columnist Robert McCartney sat down yesterday with Gov. Bob McDonnell (R) for a wide-ranging interview, which you can read more about in McCartney's future columns.

We included a few comments from the governor on the topic of Attorney General Ken Cuccinelli's letter to colleges and universities in a story this morning on reaction to the letter on college campuses, the governor's first since the letter became public Friday.

For those who would like to hear more of what the governor had to say on the topic, here are some additional excerpts from McDonnell's comments on the subject to McCartney.

About Cuccinelli's legal reasoning: "The opinions with regard to the sole province of the General Assembly to set discrimination policy go back to Jerry Baliles in 1982. There's a long list of opinions. It's all separation of powers issues . . . But that doesn't mean that a governor can't say to his managers: I will not tolerate discrimination in this administration. And there will be consequences if I understand there's discrimination on any basis other than ability, merit, and willingness to follow my directives."

On the topic of whether he would sign legislation to extend legal protections based on sexual orientation if the General Assembly were to reverse course and pass a bill to do so: "I'd consider it. I'd have to look at the legal arguments for it. First, I have a policy as governor of Virginia that there will not be discrimination in employment, in hiring, in promotion, whatsoever. I will enforce that with my managers."

On whether Cuccinelli's letter has any impact, given pledges by all involved not to discriminate: "Listen, I gave advice to Gov. Kaine on that, and he ignored my advice. Lawyers give advice regulaly. Sometimes the clients follow it, sometimes they don't. . . . I think you have to make one legal distinction."

"Only the General Assembly can change the Human Rights Act, which creates certain remedies for discrimination, namely grievances and lawsuits. That's very different than me as the manager of the state government saying you will not discriminate, while I'm governor, and if you do, on the employer side, there will be consequences to discrimination. I've made it very clear to our cabinet members. I essentially put it in writing. We're going to make sure that those policies are enforced."

On whether publicity on the issue could hurt Virginia's efforts to attract businesses, including Northrop Grumman:

After noting that private businesses could adopt any policy for their own employees that they wish and discussing Virginia's low-tax, business friendly climate, he added:
"I want people to know not only we're open for business, but we're open to a broad, diverse cultural group of people coming here and living the American dream and making this a better state. As long as I'm governor, I'm going to have those kinds of policies. . . . People will be welcome to come to Virginia. I think that people believe that's the kind of governor I'm going to be."

By Rosalind Helderman  |  March 9, 2010; 9:59 AM ET
Categories:  General Assembly 2010 , House of Delegates , Ken Cuccinelli , Robert F. McDonnell , Rosalind Helderman , State Senate  
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There's a surprise. Welcome back to the 18th century.

Posted by: jckdoors | March 9, 2010 11:21 AM | Report abuse

Can't wait until Jim Crow and Segregation make a comeback too! GO VA!

Posted by: BLKManCommonSense | March 9, 2010 11:38 AM | Report abuse

These are not the comments of a leader. He's scared to differ from Cuccinelli. This will be a very long four years.

Posted by: fairfaxvoter | March 9, 2010 12:01 PM | Report abuse

Gawd what hysterics from the pantywaisted crowd. Jim Crow? Really.

Homosexuals are neither a protected class nor an endangered species in Va. Cuccinelli was simply making sure that the PUBLIC universities got it right.

Posted by: JoStalin | March 9, 2010 12:04 PM | Report abuse

"Only the General Assembly can change the Human Rights Act, which creates certain remedies for discrimination, namely grievances and lawsuits."

I can agree with this statement on the technical grounds, sure. A discriminatory policy based on sexual orientation is legal in Virginia, and discrimination based on sexual orientation will not incur penalties set out by the Human Rights Act. That's all just the law.

"That's very different than me as the manager of the state government saying you will not discriminate, while I'm governor, and if you do, on the employer side, there will be consequences to discrimination. I've made it very clear to our cabinet members. I essentially put it in writing. We're going to make sure that those policies are enforced."

Here's where I think the governor is being inconsistent. Because what he's saying is that he can still have a non-discrimination policy for state employees as their manager. He's even "essentially put it in writing." So the only difference between what McDonnell's done and what the universities have done would seem to be that the university have *actually* put it in writing. And there's legal basis for one but not the other?

Besides which, if McDonnell thought he had the authority to have a non-discrimination policy and wanted to have one (as he is claiming in the quote), an ideal mechanism would have been to put it down in a statement from the governor's office, which would have been that executive order he didn't put it in. So: what gives?

Posted by: arc410 | March 9, 2010 12:19 PM | Report abuse

As far as I can see, the only thing he's put in writing was Executive Order 6--which officially took sexual orientation out of the official definition of "discrimination."

All McDonnell is stating is that officially defined kinds of discrimination (race, sex, color, national origin, religion, age, political affiliation, disability, veterans) are prohibited--but nobody else is protected.

So, his pledge and resolve to make sure they won't "discriminate" is an empty promise that is completely compliant with the terms of the Cuccinelli letter.

By handling this indirectly (and I would say somewhat insincerely, since he knows that he's misdirecting), the Governor just looks smoother and less controversial.

It sure seems like they are in cahoots on this.

Posted by: ViennaBelle | March 9, 2010 12:48 PM | Report abuse

The governor's statement makes no sense if he supports the Attorney General.

If the attorney general is saying that colleges and universities can't have these policies how come he is not criticizing the governor for what he is saying?

Or is the governor really saying we are legally allowed to discriminate but my policy is that we won't?

Posted by: Pensfans | March 9, 2010 12:58 PM | Report abuse

It should come as no shock to anyone that the McDonnell administration is so eager to institutionalize bigotry. After all, gay bashing is a fundamental principle of the far right Republican world in which he and Cuccinelli dwell. They would be betraying the Pat Robertson wing of the GOP to which they owe their political allegiance if they didn't do everything in their power to deny gay citizens the human rights and dignity to which they are entitled.

The tragedy is that these guys and their bible bigot masters forgot every lesson from the dark and ugly days when segregation was the rule of the day in Virginia - and are determined to take the Commonwealth back into that era. I'm ashamed to be a Virginian.

One can only hope that the leadership of the state's colleges and universities will have the integrity and decency to tell McDonnell and Cuccinelli where to stick their bigotry.

Posted by: SaneReasonable | March 9, 2010 1:02 PM | Report abuse

They both need to be thrown out of office. This is disgraceful behavior.

Posted by: GenuineRisk | March 9, 2010 1:17 PM | Report abuse

Well, let's look at some of the possible effects of this ruling:

1. State university employees could be fired for being gay.

2. Student applications could be turned down if the student is gay.

3. Students who are already enrolled could be expelled for being gay.

4. Visiting researchers or scholars could be told "go home" if they are gay.

5. None of these people would have any legal recourse, since discrimination on the basis of sexual orientation would be legal and permissible.

Anybody disagree with that? If so, why?

Posted by: MrDarwin | March 9, 2010 1:23 PM | Report abuse

Things like this happens when you mix a freaky evangelical with a wacky catholic.

Religion is for fools.

Posted by: kenk3 | March 9, 2010 1:27 PM | Report abuse

First, the Govenor, by dint of his office, can do things that the public colleges and universities can't.

Second, were he to issue the executive order that people are cryin' the blues about it would only put in writing just what he is saying. If he says it or writes it it has the same effect. If he enforces it, it doesn't matter whether it is oral or written does it?

Third, what people fail to understand that in VA legislative and executive branches have a different power balance than most states.

Posted by: ronjaboy | March 9, 2010 1:28 PM | Report abuse

So he doesn't want to discriminate, but what does this policy do? It sure doesn't open the door real wide.

Posted by: ravensfan20008 | March 9, 2010 1:31 PM | Report abuse

Each of you are ignorant for not understanding the bigger issue here.

Sexual orientation is not equal to race!!!

That's all the Governor is saying.

Thank goodness we have someone in Richmond who understands the U.S. Constitution, and I can't wait for November 2010 for that to happen again for the Nation's Capital.

I don't care about your sexual orientation, so get out of my face with it!

Posted by: jim000122 | March 9, 2010 1:49 PM | Report abuse

What a f*g.

Posted by: Godfather_of_Goals | March 9, 2010 2:00 PM | Report abuse

Thank God McDonnell balanced the state budget so he has time to release his Christian Conservative agenda.

Oh wait....

Posted by: stikyfingas | March 9, 2010 2:04 PM | Report abuse

Universities should refuse to alter their policies and force the AG and Governor to sue them.

This is so childish. Removing the actual protection but then saying you won't discriminate.

Really? How would they feel about the protection for religious affiliation being removed with a wink and a nudge and saying we just verbally agree not to discriminate?

Posted by: Hillman1 | March 9, 2010 2:09 PM | Report abuse

ravensfan20008 wrote: "So he doesn't want to discriminate, but what does this policy do? It sure doesn't open the door real wide."
There's a world of difference between not having a non-discrimination policy and actual discrimination. Homosexuals in the Commonwealth are not so oppressed and discriminated against that they warrant "protected class" status. Just because there is no formal policy against it, that doesn't mean that it's open season either.

Posted by: JoStalin | March 9, 2010 2:10 PM | Report abuse

He talks out of both sides of his mouth. It's all double speak for "Homos not welcome" He and Ken and probably Bolling are all bigots.

Posted by: Reality6 | March 9, 2010 2:26 PM | Report abuse means that they won't care of others DO discriminate against gays. They will turn their heads while it happens.

Posted by: Reality6 | March 9, 2010 2:28 PM | Report abuse

To the aptly named "JoStalin" re: "Homosexuals in the Commonwealth are not so oppressed and discriminated against that they warrant "protected class" status."

Of course they are discriminated against. They are denied, for example, the right to marry, to have the same rights and benefits for their spouses and families that heterosexuals can enjoy for the price of a $25 marriage license. This whole issue is precisely about the fact that McDonnell and Cuccinelli want to treat homosexual state employees differently.

Discrimination is what today's Republican Party is all about, and since they can no longer openly discriminate against black citizens (except in GOP fundraising presentations), they'll just have to get their bigotrty fix out of discriminating against gays.

Posted by: SaneReasonable | March 9, 2010 2:31 PM | Report abuse

First, the Govenor, by dint of his office, can do things that the public colleges and universities can't.

Posted by: ronjaboy | March 9, 2010 1:28 PM
And the basis for this claim is what?

Posted by: luridone | March 9, 2010 2:34 PM | Report abuse

Sexual orientation is not equal to race!!!

Posted by: jim000122 | March 9, 2010 1:49 PM
Only according to narrow-minded homophobes.

Posted by: luridone | March 9, 2010 2:36 PM | Report abuse

McDonnell's alma mata Liberty "university" discriminates against gays as a matter of pride, so its no wonder mcdonnell wants the public schools in virginia to do the same.

Posted by: MarilynManson | March 9, 2010 3:57 PM | Report abuse

Hey WaPo - good job of burying this deep in the bowels of the "local" section. It was such fun throwing that red meat out there on the front page about Cuccinelli yesterday but now that the Gov. and House of Delegates have upheld the Attorney General it's time to bury it. We don't want anyone getting the idea that Cuccinelli's viewpoint was correct after all.

Posted by: 0460 | March 9, 2010 4:57 PM | Report abuse

Look on bright side all you tingly legged, bed wetting, panty waist, crybaby Obamacrats. The heterosexuals, those practicing bestiality and repeat sex offenders were also left out of the ridiculous wording so they to are now subject to being discriminated against because of their sexual preference. That sounds like they excluded everybody's preference to me so it is now fairly across the board. It must be a good law if it doesn't apply to anyone equally.

Posted by: longbow65 | March 9, 2010 7:43 PM | Report abuse

Homophobia is intolerance which brings no benefit. Cuccinelli is the worst state attorney general. Universities must not repeal their policies which prohibit discrimination on the basis of sexual orientation and gender identity. Universities make their own rules, meaning that the legislature isn't required to make rules for universities. Since McDonnell says that discrimination is wrong then he must support bills which would prohibit discrimination on the basis of sexual orientation and gender identity but not keep speaking nonsense about legal arguments. The Human Rights Act in Virginia must be improved but the legislature, especially, the lower house, is controlled by intolerant conservatives.

Posted by: LibertyForAll | March 9, 2010 9:07 PM | Report abuse

DC Isn't too far away of a drive. VA has a different culture and law. We don't promote one's sexual orientation or lifestyle over any others.

Posted by: WhatBubble | March 9, 2010 9:10 PM | Report abuse

First, it seems to me a little man with a weird moustache tried to do something similar in Germany in the 1930s. Start out small, you know, so people wont notice... a letter saying you're going to enforce some ban, and then, over the course of the next few years, more and more restrictions, more severe each time, until the unwanted group disappears. Slippery slope people.
Second, I'm in a positon to decide who gets multi-million dollar hospitality contracts, and since VA's 2004 law banning same sex couples enjoying contractual arrangements similar to hetrosexual couples, I've steered over $100M in hospitality contracts into DC. Something I will be sure to continue. So, Mr. Governor, VA may be open for business for some, but not for me or my gay, no play in my book. Let Jerry Faldwell and the Christian Collition fill your hotels.

Posted by: Jeff641 | March 9, 2010 11:51 PM | Report abuse

I see another bigoted government going on here. The Governor and the AG can go down in history equal to the likes of George Wallace and Lester Mannix. What's next, a return to Jim Crow laws? The AG here disgusts me. He is using his power to discriminate. He is a bigot and he hides behind the law in doing it. The law is a shield, not a sword.

Posted by: tenorsaxophrass | March 10, 2010 8:58 AM | Report abuse

Two things strike me about his comments. If sexual orientation is not protected, then technically someone who is heterosexual can be fired for being straight. Could you imagine the fuss if that were done?

As far as a business friendly climate, there is a problem here, too. The conservatives say government should be off the backs of businesses. For the most part this may be true except where it conflicts with social policy. If I as a business owner want to locate in Virginia, fine, the door is open. If I as a private business owners want to offer insurance coverage for same sex partners of my employees, I cannot do that. It is specifically forbidden. . . I can't get the insurance coverage.

Posted by: twb6yz | March 10, 2010 9:25 AM | Report abuse

Did WaPo not see the Governor's Executive Directive 1, spelling out quite clearly that the US Constitution prohibits discrimination based on sexual orientation?

Yup, that's right, Gov McDonnell's Executive Directive says no discriminating against gays (well, in employment -- I guess you can't have everything).

That's quite a slap to AG Cucinelli, who kinda left out the US Constitution in his letter on the subject to Virginia public universities.

But the question remains -- and maybe WaPo will get around to analyzing this -- how does Exec Dir #1 affect Executive Order #6?

Posted by: jb1151 | March 11, 2010 3:18 PM | Report abuse

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