Over in the comments section of my post about Gov. Bob McDonnell’s new executive directive, Basil takes me to task for overstating the importance of the governor’s proclamation:
The “executive directive” has no legal import, it is still perfectly legal and laudable in Virginia for state agencies to discriminate against state employees (or students) on the basis of sexual orientation. Absent legislation, which McConnell has consistently opposed, that remains the case. Even an executive order, although better than a directive, would probably provide no legal protection. This directive provides no legal recourse for victims of discrimination, other than a possible appeal to a governor with a long distinguished track record as a homophobe.
I tend to agree with most of this. I don’t think that McDonnell is very interested in protecting gay and lesbian state employees from discrimination and suspect that he issued this directive in response to the public outcry surrounding Cuccinelli’s order. After all, McDonnell’s February 5th executive order intentionally excluded sexual orientation from protection and the governor agreed with Cuccinielli on the school policy issue until the position just became politically untenable. And so, he responded not with a call for the legislature to pass an LGBT inclusive discriminatory measure or a revised executive order, but with a watered-down directive that does not require state agencies to take any additional actions than those already in place under the US Constitution. Certainly, this is something less than full commitment. Also, a constitutional expert I spoke to tells me that McDonnell’s statement that “’[d]iscrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution” is a very generous interpretation of Supreme Court precedent. The Court has said that some anti-gay discrimination lacks a rational basis, but the law has to be pretty egregious before if it hits this wall.
Metro Weekly’s Chris Geidner sums it up like this: “The law, by the governor’s own words, is the same on March 11 as it was on March 9. There is no protection provided by the Commonwealth of Virginia or Gov. McDonnell to LGBT people other than the slight protection already provided to them by the U.S. Constitution.” But I think McDonnell’s attempt to distance himself from Cuccinelli is significant. It underscores the effectiveness of campus and state-wide organizing in (at the very least) slowing down McDonnell’s moralistic crusade and certainly complicates Cuccinelli’s effort to change state school’s non discrimination policies.