Wednesday, March 10, 2010

Virginia Governor Reverses Himself and Attorney General on Anti-Gay Discrimination

Virginia Governor Bob McDonnell has reversed himself and Attorney General Ken Cuccinelli on anti-gay discrimination. Last week, Cuccinelli sent a letter to public colleges and universities in Virginia demanding that they rescind policies the prohibit discrimination on the basis of sexual orientation. This letter led to public outcry.

Today, Governor McDonnell signed an executive directive that prohibits state workers from discriminating on the basis of sexual orientation in state agencies. The executive directive appears to reverse Cuccinelli's position.

Although McDonnell's two Democratic predecessors -- Mark Warner and Tim Kaine -- issued executive orders that prohibited sexual orientation discrimination by state workers, McDonnell, a Republican, initially balked at the idea and refused to do so. McDonnell, however, has changed course amidst a chorus of protests responding to Cuccinelli's letter. Apparently, political activism can still effectuate change.

UPDATE: Governor McDonnell signed an "executive directive," not an "executive order." Rachel Maddow has stated that an executive directive has no legal force (unlike an executive order). I have not found any Virginia authority to support this claim, although now many liberal bloggers have run with it as an accurate statement of Virginia law.

UPDATE II: The Washington Post reports that an executive directive has legal force, but it may not empower individuals to seek relief in courts. It is unclear, however, whether an executive order could authorize lawsuits for sexual orientation discrimination. Typically, legislation -- not executive action -- empowers people to sue. The Virginia legislature has declined to add sexual orientation to existing civil rights legislation. Therefore, an exectuvie order that included sexual orientation might not create a cause of action for a civil suit. Accordingly, the distinction between an executive order and executive directive is possibly just a matter of semantics -- not law.

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