Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Things in Virginia are getting strange. First we had Gov. Bob McDonnell remove sexual orientation from an executive order forbidding discrimination in hiring by state agencies. Then we had his attorney general declare that public universities in the state could not prohibit discrimination on the basis of sexual orientation because the state does not do so. Now suddenly McDonnell seems to have reversed himself with a new executive order that prohibits discrimination for any reason and specifically says that discrimination on the basis of sexual orientation is a violation of the 14th amendment. That executive order says:
Employment discrimination of any kind will not be tolerated by this Administration. The Virginia Human Rights Act recognizes the unlawfulness of conduct that violates any Virginia or federal statute or regulation governing discrimination against certain enumerated classes of persons. The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one's sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution. Therefore, discrimination against enumerated classes of persons set forth in the Virginia Human Rights Act or discrimination against any class of persons without a rational basis is prohibited.Consistent with state and federal law, and the Virginia and United States Constitutions, I hereby direct that the hiring, promotion, compensation, treatment, discipline, and termination of state employees shall be based on an individual's job qualifications, merit and performance. No employee of the Executive Branch shall engage in any discriminatory conduct against another employee.
The "rational basis" language might contain a loophole allowing some types of discrimination, but since this is a hiring policy it's hard to imagine a situation where anyone could plausibly argue that they have a rational basis for not hiring someone based solely on sexual orientation. The language seems pretty strong to me and it's entirely inconsistent with the previous statements from McDonnell and his AG.
Confused? So am I.
Politics
Comments
I think this is a case of damage control.
Remember Virginia govs are limited to one term. Cucchinelli's comments created a firestorm here, with much of the blowback aimed at McDonnell. He had to do something to avert the controversy to have any chance at further political moves. He is the first line republican hope to take back one of the VA senate seats.
I read this as pure political pragmatism.
Posted by: Mark | March 16, 2010 9:31 AM
No, he did not reverse himself. McDonnell's statement about sexual orientation was a nonbinding executive *directive*, not an executive order (which is binding). His actual binding nondiscrimination policy continues to omit sexual orientation as a protected category. He has not issued anything binding that protects sexual orientation as a category. You can read more about the distinction between a directive and an order at the end of this article. Equality Virginia also explains the distinction.
Posted by: Sarah L. | March 16, 2010 9:39 AM
There is a great story hidden in this chain of events.
I had seen reports prior to Gov. McConnell's first executive order where he argued that his opposition to defending a person's sexual orientation in the workplace was based on the Executive not having legislative authority to make such a pronouncement. I assumed at the time, as did most analysts, that Gov. McConnell was moving the goal posts to a 'limited government' argument when everyone knew that was merely a convenient artifice to carrying out the collective hatred of his voting constituents' hatred of gay people. So the only surprise then was he that he was actually bold enough to put this groups collective hatred and fierce support we deny gays rights down on paper. In my opinion this solidified the man had not changed since he came out decades ago as a particularly vile bigot in spite of his somewhat contrary poses during his recent and successful campaign for Virginia governor.
To do a 180 so quickly on going from a bold move of documenting one's hatred for gays to then ordering their rights be defended equally is an extremely rare event. Given the demographic of this man and that group's general inability to improve their character, I suspect some bigger Christianist objective is put at risk if his original order stood. Of course that's merely speculative but I'd argue a fair one to throw out there given his past record of hatred. I hope some good investigative journalism is done on how the state of Virgina's Executive branch went to one extreme, and then another so quickly and with the same personnel in charge.
Posted by: Michael Heath | March 16, 2010 9:44 AM
Oh, it may get weirder:
http://www.dailykos.com/storyonly/2010/3/15/125831/106
Posted by: NJ | March 16, 2010 10:18 AM
Sarah L. is correct, this Executive Directive is a weaker form of protection, but given the unique legal situation in Virginia, it may be better for gay and lesbian in the long run. There were significant questions about the legality of the previous two governors' Executive Orders covering gay and lesbian state employees, because they went beyond the stated VA law and IIRC there had been previous cases where the courts ruled against the Orders.
However, this Directive is a personnel policy of the Governor. He might not have the weight of the law behind him, but certainly as Governor McDonnell has the authority to discipline any state employee who engaged in anti-gay discrimination. Now, if a firing occurs, the state employee should not go to court, but rather to the Governor, who will be honor-bound to act.
It does not replace a state or national law, of course, but I for one am enjoying watching McDonnell squirm and paint himself into this particular corner. He was supposed to be the social conservatives' dream candidate - a die hard fundie who masqueraded as a moderate. The right figured he could win office without highlighting his socially conservative credentials, but then act like a typical fundie once in office. This shows he isn't able to do that, especially in an area like education, where even the kids of the conservatives are unlikely to be anti-gay.
Posted by: CPT_Doom | March 16, 2010 10:26 AM
Sarah L. provides one possible answer to this spinning top of a bigot but I fear his fellow bigots may not be bright enough to enjoy the nuances.
Michael Heath suspects some Christianist objective in peril without this move. Another idea I like more is that it might be possible a significant portion of his staff is gay and has subtly threatened him. I am not saying it is likely but it does have a satisfying ring of justice to it. Both the Gov and the AG have taken almost universally negative press nationally and the universities have told him to sit on it and rotate. Tough to run for senate with that kind of support.
Posted by: MikeMa | March 16, 2010 10:29 AM
Ed Brayton: Confused? So am I.
Perhaps one of these guys heard and took seriously suggestion that if this discrimination on orientation was treated as legal, some Virginia University could set up a test case by firing a large number of heterosexuals over their depraved and immoral lifestyle. The last things these troglodytes want is to enable a major advance of the the homosexual agenda....
Posted by: abb3w | March 16, 2010 11:08 AM
Call him Bob McDreidel, the human spinning-top.
I read the whole thing this way: McDreidel was surprised at the amount of flack he received for his move, so he's now trying to find a way to basically reverse himself without actually changing his earlier executive order (because he can't be seen to give in to outside pressure). Confusing everyone about what he's actually saying isn't a bug in that regard, it's a feature.
But I love how, in the heat of the action, he unambiguously states that discrimination on the basis of sexual orientation is unconstitutional - quite an admission for a wingnut like him. One that might yet come back to haunt him, in fact.
Posted by: Phillip IV | March 16, 2010 11:24 AM
It's been well-reported that the not-so-well-kept secret in D.C. is that there are a very large number of gay Republican congressional staffers. I recently asked a friend of mine who is a former Republican Congressional staffer, although straight himself, if this was true, and he confirmed it without equivocation or hesitation.
So whether that is the reason for the change of heart or not (and I lean toward Phillip IV's argument myself), it would be no surprise if a number of McDonnell's staff are gay. And those folks, as hard as some might find it to understand why anyone could be a gay Republican, will probably be the cause of the final victory of gay rights. Not through any arguments they make, but by putting a human face on homosexuality. "But, but, my chief legislative assistant is gay, and I really like the guy. Every time I think about voting for this mandatory gay castration bill, I think about him."
Posted by: James Hanley | March 16, 2010 12:01 PM
As I stated on a previous thread, former Senator Rick Santorums' chief legislative assistant came out of the closet and was not fired by the Senator.
Posted by: SLC | March 16, 2010 12:07 PM
James Hanley @9,
Wasn't this just what Harvey Milk fought for? Show everyone that 'gay' isn't them, 'gay' is all of us!
Posted by: MikeMa | March 16, 2010 12:27 PM
On a related matter, it appears that Virginias' fucktard Attorney General, Ken the kook Cuccinelli has dabbled with the birthers.
http://augustafreepress.com/2010/03/16/cuccinelli-we-gotta-have-proof-that-obama-is-u-s-citizen/
Posted by: SLC | March 16, 2010 2:59 PM