Are Some Activists in a Snit Over Norfolk Gay Marriage Lawsuit?

One of the frustrations of living in a state like Virginia where LGBT citizens have literally zero non-discrimination protections and where our life commitments and relationships have zero legal recognition is hearing gay activists who usually reside in liberal states lecture us about the need to be patient.  That's easy to say when one is safely residing in New York or other states with employment protections, partner benefits and full marriage rights.  A comment I received on my post about the federal lawsuit filed by friends last week raises the issue whether or not some are pissed off that the couple who filed the lawsuit did not dutifully wait for permission from "those who know best."   Yes, it is important that any lawsuits be framed in the best manner possible.  At the same time, however, the professional activists at Lambda Legal and the ACLU need to realize that some of us are tired of waiting for someone else to tell us we have permission to demand equality.   The following are excerpts from Lambda Legal on the as yet un-filed lawsuits that are supposed to be coming in Virgina and other states:

We have chosen the states we have because, after in-depth analysis, we have concluded they have the best chances of yielding good results. In some parts of the country, a lawsuit may be ill-advised because existing appellate precedent may make it hard to win. It is not that we care less about certain states or think that people living in those states are less deserving of the same rights as everyone else. Instead, we are being strategic in trying to rack up wins and avoid losses.

We have seen time and again that filing cases in states where the odds are stacked against victory can create adverse precedent and interfere with momentum, making future cases harder to win. Positive momentum will help us reach nationwide success sooner, and that’s why we are concentrating on jurisdictions where we think the chances are best to win.

The impatience that people feel is very understandable - we feel impatient too! It is manifestly wrong that same-sex couples in 37 states are still denied a basic and fundamental freedom that others enjoy, and the harms from being excluded from the tangible and intangible rights and responsibilities of marriage are serious and manifold.

They are impatient too?  I think not.  Yes, I am being harsh, but when I represented Michael Moore who was fired from the Virginia Museum of Natural History for being gay, I did not receive ANY assistance form Lambda Legal.  That's right none whatsoever.  In fact, the only assistance I received was from an attorney in the D.C. office of the ACLU.  If you want to play God, then do something.  Don't just sit back in your liberal state in your ivory tower while the rest of us are left in a fourth class citizenship status.

VCU Backs Discriminatory Firing of Gay Coach

In what is beginning to feel like deja vue of the Moore v. Virginia Museum of Natural History case from a few years back where Michael Moore was fired for being gay, Virginia Commonwealth University ("VCU") is backing the firing of women’s volleyball coach James Finley (pictured above), claiming that the firing was not discriminatory. Both the Virginian Pilot and the Richmond Times Dispatch are carrying coverage of VCU's disturbing statement.  Candidly, I have seen first hand in the Moore case how Virginia agencies conduct their internal reviews of anti-gay actions by bigoted personnel and the contortions and gyrations that are engaged in to avoid a finding of discrimination are unbelievable.  Inconvenient and contradictory facts are ignored and, in my opinion, obvious lies are swept under the rug.  Anything and everything will be done to avoid a confirmation of anti-gay bigotry.  The situation is so bad that these internal reviews are akin to the Catholic Church hierarchy denying that a case of sexual abuse by priests exists absent a video tape of a child being raped by a priest on the church altar. Here are highlights from the Times Dispatch piece:

Virginia Commonwealth University has completed an internal investigation into the firing of women’s volleyball coach James Finley and determined that the action was founded.

“The Office of Institutional Equity’s exhaustive investigation confirmed that the employment decision was made in accordance with VCU policies and not as the result of any discriminatory action by our athletic director,” VCU President Michael Rao said in a statement emailed to university employees Thursday and then posted on the school’s web site.

Finley was fired in November after completing a 25-6 season. He claimed he was fired because he is openly gay, but VCU Athletic Director Ed McLaughlin denied that.

The internal investigation ends VCU’s look into the matter, and the school has already begun a search for a new coach.

I suspect that the only thing "exhaustive" about the investigation is the effort that went into concocting a story to back up VCU's athletic director's action.   Where does this leave Finley?  Under Virginia law, there are few options.  He can file a complaint under the state employee grievance procedure but truth be told, the Department of Human Resource Management from what I saw in the Moore case, DHRM will go to even greater lengths to avoid finding against a state agency even though it claims "does not advocate for employees or management, but, rather, provides impartial services to assist in the resolution of workplace disputes."  In my opinion, that statement is about as true as much of what came out of the old Soviet Politburo. 

Should Finley consider a state court lawsuit, there is nothing in Virginia statutory law that grants him a shred of meaningful protection.  As for mealy mouthed Executive Directive 1 (2010) signed by Bob "Taliban Bob" McDonnell after Ken "Kookinelli" Cuccinelli created an uproar when he advised Virginia's colleges and universities that the inclusion of sexual their non-discrimination policies was improper, an Executive Directive holds less weight that an Executive order such as the one involved in the Moore matter.  Thus, Executive Directive 1 (2010) is little more than window dressing signed by McDonnell to quell a political firestorm. 

This leaves Finley with a possible lawsuit in federal court under an equal protection or due process claim since ENDA continues to go nowhere in Congress.  Should that course be pursued, Finley will find himself in the 4th Circuit, perhaps the most conservative in the nation, and likely facing an uphill battle.  In sum, it is not a pretty picture, but such is life for LGBT Virginians who face constant religious based discrimination notwithstanding the laughable promise of freedom from religious discrimination under both the Virginia and U. S. Constitutions.  Hence why I recommend that gays considering a move to Virginia rethink the situation.

Virginia Commonwealth University Coach Fired for Being Gay

Many readers may be shocked by the title of this post, but hear in Virginia, LGBT citizens have absolutely zero state law employment protections and since Congress has never passed ENDA, there are no federal law protections either.  This was made abundantly clear by (1) Governor Bob McDonnell's refusal to sign an Executive Order adding sexual orientation to the Commonwealth of Virginia's employment non-discrimination policy, and (2) the refusal of the Virginia Supreme Court to consider an appeal by Michael Moore a state employee fired for being gay in Moore v. Virginia Museum of Natural History.  With virulently anti-gay Ken Cuccinelli the apparent GOP nominee for governor in the 2013 elections, a GOP win would likely guarantee that more anti-gay witch hunts would ensue throughout state agencies and universities.  GayRVA looks at the latest travesty at Virginia Commonwealth University ("VCU").  Here are highlights:

For eight years James Finley went to work for VCU’s women’s volleyball team. For eight years he poured his heart and soul into his team of women. And on Monday November 19th, James Finley was fired. Finley says the reasons for his contract termination are simple. It wasn’t his winning record. It wasn’t his personal commitment to the team. It wasn’t the move to a tougher competing conference his team earned under his guidance. According to Finley, it was because he was openly gay.

People picked the Rams to take 6th place. Instead they took 3rd, with a final record of 25-6 overall in the regular season- they got as far as the semi finals – a solid standing for a team in their first A10 championship.

On Nov. 19th, the Monday after they returned from the championships, Coach Finley had a message waiting for him from AD McLaughlin’s secretary. “They wanted a confidential meeting,” said Finley. He figured it was to discuss his contract renewal – most VCU coaches are on year-to-year contracts, and at the end of seasons, coaches and administration get together to discuss their future together.

But when Finley met with McLaughlin this time, the conversation was different. “He said they wanted to go in a different direction,” said Finley. The new direction did not include Finley as the head coach of his team. It did not include Finley on staff at all.

[T]here were several red flags that popped up throughout the season leading up to this moment.

“From the beginning he interacted with other coaches, staffs, other teams. He participated [with them], and  with ours he didn’t…  At booster events, he avoided me whenever I was there. [I'd be] having a conversation with him and he’d walk away when I was trying to talk to him. I’d say ‘Hi’ and he’d look up at me, and put his head back down and not acknowledge me.”

Finley didn’t think much of the issue as the season passed, but on Oct. 5th, when Pat Stauffer, a 30-year-veteran of VCU athletics and an open lesbian, was demoted from Senior Women’s Administrator to  Sr. Associate AD for Sports Administration. It was too much for Finley, it was another red flag.

Since his meeting with McLaughlin, Finley has taken action within the university system to solve his problem. He met with VCU’s VP of Diversity this week. He was told diversity was one of VCU’s core values, and that an investigation was started to examine his dismissal and his charge of discrimination. When asked what he wanted, Finley said “I’d like to have my job back.”

Virginia lacks sexual orientation in its list of protected classes for employment. However, VCU does include it in their anti-discrimination policy. Finley believes this policy was violated.

John Sternlicht, Finley’s husband and a lawyer, admits it’s very hard to prove discrimination in most cases – you have to look at the entire circumstance to understand what has happened. He believes his husband’s situation, with the lack of normal treatment and the demotion of the other LGBT employee, is evidence enough. “You have to have enough evidence to get your case to a jury or your case is thrown out,” said Sternlicht, “and this would be enough to get to a jury.”

The language McLaughlin used also caused Boyd and her teammates some concern.

“He said ‘We want someone to better represent the school,’ and coach had never done anything to misrepresent the school – he’s always very appropriate and nice to people, even when people are rude to him. I’ve never seen him in my 5 years misrepresent the school in any way.”

Boyd agrees with Finley and does not think this issue comes from the college’s higher-ups. “Our school is very diverse, I wouldn’t really expect this… I don’t think it’s VCU, I think it’s on the administrative side. I don’t want to throw the AD under the bus, but we never had an issue until he got here.”

And if a law suit ensues, who will represent VCU?  You guessed it, Ken Cuccinelli.  Anyone in their right mind should not want to move to Virginia.  And as I have noted many times before, were circumstances different, I'd move from Virginia in a heart beat.  Under Bob McDonnell and the Christofascists at The Family Foundation, an FOTF and FRC affiliate, Virginia is best suited for knuckle dragging Neanderthals.

RNC Chairman Signals GOP's Support for ENDA on Meet the Press

OMG!!!  The heads must have been exploding amongst the professional Christian and professional gay hating crowd today.  The blow back will be amazing to watch.  What am I talking about?  On Meet the Press Republican National Committee Reince Priebus said that gays are entitled to equal rights in regard to, say, discrimination in the workplace.  True, poll after poll has shown that significant majorities of Americans support employment non-discrimination protections for LGBT citizens.  Hell, even when I was on a call in television program in Martinsville, Virgina (about as far as one can get from the center of the gay friendly universe) back when I represented Michael Ware Moore in his lawsuit against the Virginia Museum of Natural History ("VMNH"), every caller supported Moore and thought that VMNH should pay damages to Moore for firing him because he was Gay.  As Pam Spaulding notes, Bryan Fischer and Tony Perkins must be having apoplexy.  Here's a part of the dialogue:

DAVID GREGORY: But do you believe that gays and lesbians in America deserve equal rights?

REINCE PRIEBUS: I think they deserve equal rights in regard to, say, discrimination in the workplace, issues such as, as Mitt Romney has pointed out numerous times, hospital visitations. I mean I think that for the sake of dignity and respect, sure. But if you’re defining marriage as a civil right, then no. I don’t believe that people who are same sex should be able to married under our laws.

On the issue of gay marriage, ,Priebus proved as much of a knuckle dragging Neanderthal and prostitute to the Christianist crowd as is to be expected from the GOP which is now, in my view, a de facto religious party.  Here's a clip from Meet the Press:

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What Loving v. Virginia Says About Today

The U. S. Supreme Court decision in Loving v. Virginia in 1967 was a major smack down for both the Commonwealth of Virginia and the Virginia Supreme Court which had upheld the state's ban on interracial marriage. Unfortunately, neither the Commonwealth nor the Virginia Supreme Court deems to have learned anything from the 1968 ruling that continues to be a blight on the Commonwealth's reputation. Having argued before the Virginia Supreme Court in Moore v. Virginia Museum of Natural History (Moore was fired by the state museum for being gay), the Virginia Supreme Court seems just as hostile to the rights of minorities today as in was in the 1960's. Indeed, it is probably safe to say that LGBT equality under the civil laws in Virginia will not be forthcoming until the U. S. Supreme Court of the U.S. Congress forces Virginia to end anti-gay discrimination. A story in The Advocate that looks at an HBO documentary that focuses on Loving v. Virginia - and what that court decision says about anti-gay bigotry today. Here are some highlights:

HBO’s new documentary The Loving Story tackles a historic legal case with a timely message about marriage equality — one used to justify an elections director's decision to resign in North Carolina.

The parallels between the landmark 1967 Supreme Court case Loving v. Virginia and the fight for marriage equality today are undeniable. Forced to flee their home state of Virginia and live in exile in Washington, D.C . — or risk being arrested again for having violated the state’s Racial Integrity Act of 1924 — Mildred and Richard Loving, a mixed-race couple, took the only route they could find to get back home: through the courts.

“They were in a community [in Virginia] that not only tolerated their marriage but really fostered it,” attests filmmaker Nancy Buirski, a straight woman who is well aware that many LGBT couples and families live in communities whose mores may not be aligned with those of their states. “It reminds you what it means for the state to step in and tell us what to do with our personal freedoms.”

When Sherre Toler resigned in early January as director of elections in North Carolina's Harnett County, she cited the case as her reason for taking a stand and what she'd learned from her own interracial relationship, saying she couldn't preside over marriage equality being put up for a vote via an upcoming ballot initiative.

Over the course of the narration-free film, she [Buirski] lets the Lovings and their lawyers speak for themselves. Buirski accomplished this through footage she found that was shot at the time and lay untouched in a closet for more than 40 years.

The footage makes the Lovings’ struggle feel almost present-day — with perhaps one exception: Being made to live outside of Virginia sounds like a not-bad punishment, right? But, as Buirski points out, it was a different time.

“It was a very special place for them,” she says of the Lovings’ community in Virginia, which they were eventually allowed to return to. “They were not trying to be heroes, they were not activists. I feel strongly that we need to honor people like that.”

More information on the resignation of Sherre Toler can be found here in the Virginian Pilot. Pam's House Blend also has detailed coverage here.

Obama DOJ Argues Against Motion To Dismiss DOMA Challenge

In a move long over due, on Friday the Obama Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife. Golinski correctly maintains that DOMA is unconstitutional - something that the human resources department of the federal court for which Golinski works agreed with. The filing by the DOJ is a direct confrontation to a filing by counsel for the House Bipartisan Legal Advisory Group's Republican members which asked that Golinki's lawsuit be dismissed. In its brief, the DOJ admitted the federal government's "significant and regrettable role" in discrimination in America against gays and lesbians. The full brief can be found here. Chris Geidner with Metro Weekly has a great article on the DOJ action which I recommend be read in its entirety. No doubt Tony Perkins, Marcus Bachmann and his lunatic wife, and other mentally disturbed Christofascists will be hyperventilating and the spittle will be flying fast and furiously. Here are some story highlights:
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[T]he Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.
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DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians. The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7 ('DOMA'), unconstitutionally discriminates."
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The filing signed by Christopher Hall, a trial attorney with DOJ, responds to the June 3 filing by the lawyers for the House Bipartisan Legal Advisory Group's Republican members asking the federal court in San Francisco to dismiss Golinski's lawsuit. That June 3 filing was the first in which Paul Clement -- the outside lawyer hired by the Republican leaders to defend the Defense of Marriage Act in court -- presented a substantive defense of the law.
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Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder's decision that Section 3 of DOMA -- the federal definition of marriage -- is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional.
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Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."
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The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by courts when deciding what level of scrutiny should be applied to laws classifying groups -- including immutability; political powerlessness; and whether the classification bears any relation to, as the brief puts it, "legitimate policy objectives or ability to perform or contribute to society."
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DOJ's lawyers conclude that heightened scrutiny applies and argue how, under that heightened scrutiny, Section 3 of DOMA should be found to be unconstitutional. Heightened scrutiny, the brief details, would require that Section 3 is substantially related to an important government objective. DOJ states: "Section 3 fails this analysis."
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In addition to the DOJ filing, Golinski earlier today filed a motion for summary judgment, arguing that there are no factual disputes in her case that require a trial and that the court can and should decide the case in her favor on the legal issues alone.
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It's amazing for once to see the government arguing what I have argued over and over again, including in the Moore v. Virginia Museum of Natural History case which fell on deaf ears at the Virginia Supreme Court.

Southwest Virginia.Wants to Change Its Image

I have mixed emotions about a story in the Richmond Times Dispatch that looks at efforts in Southwest Virginia to change the region's image and attract "entrepreneurs and high-tech businesses." The goal is meritorious and I feel for many in the region who suffer from the harsh economic realities that many municipalities face. The one aspect that those trying to recast the region's image doesn't seem to address is the social and cultural backwardness of the region and its intolerance towards those who are deemed "other." Yes, the region is physically beautiful and there are many good people in the region. But, when a region is anti-black, anti-gay, anti-immigrant and far right Christianist in its mindset, attracting progressive business is going to be difficult. Here are some story highlights:
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Heartwood officials say Southwest Virginia will change the nation's negative perception of Appalachia. "Give us three years," said Chuck Riedhammer, the marketing director with a $1 million budget to promote the new facility, a regional artisan center set up as a gateway to Southwest Virginia's arts and culture.
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Our No. 1 objective isn't even tourism," said Todd Christensen, executive director of the Southwest Virginia Cultural Heritage Commission, which is overseeing the project. "Our number one objective is to develop a quality of life that's going to attract entrepreneurs and high-tech businesses to the region."
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Heartwood is designed to bring all of the region's cultural assets under one roof. The theme of what's included, from artisans and musicians to local foods and outdoor recreation sites, has become almost a mantra: "authentic, distinctive, alive."
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Tamra Talmadge, spokeswoman for the Virginia Tourism Corporation, said Heartwood packages the generations-old culture in a new form at a time when tourists, particularly of the millennial generation, are craving authenticity.
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I continue to believe that Southwest Virginia's biggest problem is the strangle hold that the Christianists have on the region. Having visited Martinsville back when I was representing Michael Moore in his lawsuit against the Virginia Museum of Natural History, as an LGBT individual, suicide would seem a positive option rather than living long term in the area. I suspect innovative and progressive business would view the region in a similar negative perspective.

Religious Based Discrimination and the Moore v. Virginia Museum of Natural History Case

The Washington Blade has a story on the Michael Moore v. Virginia Museum of Natural History case wherein the Supreme Court of Virginia refused to hear Moore's appeal. For those not familiar with the case, Moore was fired by the Museum after its executive director discovered that Moore was gay and even the investigation by the Virginia Department of Human Resource Management found that Moore's sexual orientation was a factor in his firing. The case is important because it shows that currently LGBT Virginians have no employment non-discrimination protections - even when they are state employees. It is likewise important because the Supreme Court of Virginia lacked the courage to even write an opinion laying out its reasoning - I believe because once it began to do so, it would have been impossible to avoid getting into the real underlying bigotry against LGBT citizens: religion.

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While it is true as Greg Nevins of Lambda Legal points out that some courts in other jurisdictions have found for gay plaintiffs under the Equal Protection Clause of the U.S. Constitution - an argument that was made extensively in Moore's briefs - the Supreme Court of Virginia lacked the courage even on this issue to take the step of recognizing the rights of gay Virginians much as it lacked courage in Loving v. Commonwealth when it upheld Virginia's ban on interracial marriage in 1966, only to be reversed a year later by the United States Supreme Court.

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From my research, only two recent appellate court decision have touched on the source of anti-gay discrimination. One such case is Lawrence v. Texas, 539 U.S. 558 (2003). In that case, in striking down the Texas sodomy statute – and indirectly Virginia’s own statute as well – the Court stated in relevant part as follows:
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The condemnation [of homosexuals] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
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The other case is Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), where the Iowa Supreme Court recognized that the underlying animus against homosexuals is religious based. Specifically, the Iowa Supreme Court stated in relevant part as follows:
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State government can have no religious views, either directly or indirectly, expressed through its legislation. . . . This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.
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Protection against discrimination based on religious belief - or non belief - are already on the books in every state. Sadly, until courts across the board are willing to tackle this reality of religious based discrimination against LGBT citizens head on, we can expect more cop outs like that of the Supreme Court of Virginia in the Moore case. Here are highlights from the Blade story:

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The Virginia Supreme Court has denied a gay man’s effort to obtain restitution after he allegedly was forced to resign from his job at a state museum because of his sexual orientation.
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In a two-paragraph notice issued May 17, the state’s high court said it wouldn’t hear the case of Michael Moore v. Virginia Museum of Natural History because there’s nothing in the situation the justice system could rectify.
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Claire Guthrie Gastanaga, general counsel for Equality Virginia, said the failure of the Virginia Supreme Court to take up the case shows the need for the passage of state legislation that would help protect LGBT Virginians against workplace discrimination.
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“The bottom line is this decision just demonstrates what we’ve held for years — that LGBT employees don’t have any meaningful law to seek redress for discrimination, and frankly, they don’t have any cause of action under the old executive order, either,” she said.
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When he took office this year, Republican Gov. Bob McDonnell didn’t renew the executive order for workplace protection against gays and instead replaced it with a less forceful executive directive.
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Gastanaga said if there weren’t any meaningful protections under Kaine’s order, “there really, really isn’t any protection now” under McDonnell’s directive.

Virginia Supreme Court to Gays - You Have No Employment Protections

The results are in from the Virginia Supreme Court in the Moore v. Virginia Museum of Natural History case. Ducking any discussion of the issues, the Court issued a few sentence letter indicating that Michael Moore's appeal was rejected and that the Court found "no reversible error" in the lower court ruling. For those unfamiliar with the case, the lower court had ruled that Gov. Tim Kaine's Executive Order 1 (2006) was basically worthless and provided Moore - who was fired by the Museum because he is gay - with no cause of action for his wrongful firing. Moreover, the lower court totally ignored arguments concerning the violation of Moore's rights as a citizen under the United States Constitution.

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Since Executive Orders carry more weight than Executive Directives, the Virginia Supreme Court's de facto affirming of the lower court ruling means that Gov. Bob McDonnell's Executive Directive 1 (2010) - issued to quell a political firestorm back in March - is less than worthless. As a result, state employees and students at Virginia's colleges and universities should assume that they have zero protections under McDonnell's Executive Directive and/or college and university non-discrimination policies.

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The message to the larger gay community is that our lives, careers and livelihoods have less value than those of heterosexual Virginians and that religious based discrimination and bigotry is perfectly acceptable notwithstanding the language of the Virginia Constitution or the Virginia Statute for Religion authored by Thomas Jefferson himeself. As for the violation of the federal constitutional rights, the Virginia Supreme Court apparently could care less about the federal constitutional rights of LGBT Virginians.

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Absent a written opinion explaining its action we will never know for certain what truly motivated the Virgina Supreme Court justices. However, with 29 states still permitting gays to be fired based on their sexual orientation and failure to conform with conservative Christian religious beliefs, the Court might have easily been following the thinking found in Loving v. Commonwealth, 206 Va. 924, 147 S.E.2d 78 (1966), wherein the Court stated as follows:
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A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate.
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Today, more than ten years since that decision was handed down by this court, a number of states still have miscegenation statutes and yet there has been no new decision reflecting adversely upon the validity of such statutes. We find no sound judicial reason, therefore, to depart from our holding in the Naim case. According that decision all of the weight to which it is entitled under the doctrine of Stare decisis, we hold it to be binding upon us here and rule that Code, §§ [206 Va. 930] 20--58 and 20--59, under which the defendants were convicted and sentenced, are not violative of the Constitution of Virginia or the Constitution of the United States.
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Fortunately, the United States Supreme Court thought differently and in its decision in Loving v. Virginia one year later it flatly reversed the Virginia Supreme Court's ruling and in the process ending the legality of all laws outlawing interracial marriage in the United States.
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Some things indeed don't change in Virginia - at least not without federal legislation or federal court action. And the message to be taken away by LGBT Virginians? Until ENDA or federal legislation is enacted by Congress the choice is to either (1) remain in Virginia as a second class citizen or (2) leave Virginia. And for those contemplating a move to Virginia? I recommend: don't do it.
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In closing, I stumbled upon an irony just today: the Danville News is bemoaning the fact that in the latest Policom economic strength rankings, Danville ranked 363 out of 366 metropolitan areas. Danville, which is in desperate need of new industry and new businesses, is a mere 30 miles from Martinsville, Virginia. That's right, the home of the homophobic Virginia Museum of Natural History. Does anyone - including the Virginia Supreme Court - honestly think modern, progressive businesses will want to relocate to a backward area like Danville in a state where religious based bigotry is completely tolerated? Somehow I think not.

Main Stream Media Finally Mentions Michel Moore Case

Since I first became involved in LGBT activism, I have been disappointed time and time again in the main stream media's intentional failure to cover issues involving gay rights and/or exposing the lies and hypocrisy of our Christianist enemies. The problem is particularly acute in Virginia. My first exposure to this phenomenon was in 2003 when I worked with Wayne Besen to expose national ex-gay poster boy Michael Johnston as a fraud. Johnston was from the Hampton Roads area, had been a protege of Jerry Falwell, and was featured in a national ad campaign by a who's who of the Christian right, yet no newspaper in Virginia, including the local Virginian Pilot or the Daily Press chose to do any coverage of the fact that Johnston was a fraud and that he had been sleeping around with men in the Hampton Roads area using a false name and trying to infect his victims with HIV (Johnston has been HIV positive for years). Indeed, at times one would think our local news media is on the payroll of Pat Robertson given the selective treatment given to the lies and failings of Christianists. The Michael Moore v. Virginia Museum of Natural History has been in the works for over three (3) years, yet until now, only the gay media has mentioned the case. This log jam finally ended on Friday when the Washington Post looked at the case. Here are some highlights from the Post's coverage:

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Whenever Gov. Bob McDonnell discusses the issue of discrimination protections in the state workforce, one thing he is always quick to mention with pride is that there have been very few allegations of discrimination on any grounds in the state workforce in recent years. And he is probably right -- such allegations may be rare. But they are not unheard of.
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Take, for instance, the case of Michael Moore (not the filmmaker). This Moore contends he was forced to resign from his position as at the Virginia Museum of Natural History in Martinsville in 2006 because he is gay. The Virginia Supreme Court heard an oral petition from his attorney to review his case just this week.
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the facts of Moore's experience, as well as some of the legal arguments that have been made in the case by the attorney general's office, first under McDonnell and then under Bill Mims, would be interesting to those who have been closely following the discrimination issue.
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For one thing, Virginia's Department of Human Resource Management found in January 2009 that Moore's sexual orientation was indeed a factor in the ending of his employment. But it found that other issues related to his job performance also played a role, and therefore he was not due back his job. You can read more about the department's finding on page 25 of this appendix to the suit.
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Interestingly, the attorney general's office has consistently argued that the Executive Order former Gov. Tim Kaine (D) signed in 2006, which barred discrimination on the grounds of sexual orientation, did not give Moore a "cause of action" to sue in court.
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That's intriguing, since the reason McDonnell gave for not reissuing Kaine's executive order was that it had indeed provided employees a "cause of action" to sue over discrimination on the basis of sexual orientation. He said that kind of legal protection could only be extended by the General Assembly. But McDonnell has argued that he could issue a nonbinding "executive directive" offering gays workplace protections because that course of action would not provide them access to courts.
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In the nonbinding executive directive McDonnell issued on the topic after controversy erupted when sitting Attorney General Ken Cuccinelli told colleges and universities that they did not have the authority to include sexual orientation in their nondiscrimination policies, McDonnell indicated that he believed gays were federally protected against discrimination by the 14th amendment of the U.S. constitution. But in Belue's March filing, on behalf of the attorney general's office, he rejected exactly that argument from Moore, writing that the Equal Protection Clause is "irrelevant to the category of sexual orientation" and "overruled ... in public employment" by a 2008 Supreme Court case.
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The Virginian Pilot, Daily Press and Richmond Times Dispatch have the same information as the Washington Post but in typical Virginia practice have chosen to not report on the case. Obviously, without media coverage, Bob McDonnell can continue to tell Virginians that anti-gay discrimination is not a problem.

Moore v. Virginia Museum of Natural History - Update

I survived oral argument before the Virginia Supreme Court this afternoon and according to the boyfriend, my client (pictured at right), his father and a friend of his who were all in attendance, I did a good job. Since it is the first time I have ever made an oral argument to a state supreme court, to be honest, I have no frame of reference for comparison. I hit all of the points I wanted to make and brought in Gov. Bob McDonnell's apparent of heart and belated concurrence with our 14th Amendment equal protection argument in the form of Executive Directive 1 (2010). Ironically, the Richmond Times Dispatch's main editorial this morning was of all things on Virginia's need to extend non-discrimination protections to ALL citizens, including LGBT citizens. Along with U.S. Supreme Court caselaw, I referenced both the morning Times Dispatch editorial and yesterday's Roanoke Times column urging colleges and universities to continue non-discrmination policies that include sexual orientation as reasons why the justices need to resolve the issue statewide once and for all by deciding the Moore case. Now we play the waiting game. Here are highlights from this morning's editorial (Editor's Note: the Richmond Times Dispatch is one of the most conservative papers in Virginia):
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[I]f such laws [non-discriminations laws] are to remain on the books, then the absence of sexuality as a category remains instructive -- and troubling. . . . although we have expressed our reservations regarding hate crimes legislation generally, we find the deliberate exclusion of violence against homosexuals deeply disturbing. The message rings out loud and clear.
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We trust McDonnell's commitment to non-discrimination in state government. We would expect no less from any governor. We also believe it is time for Virginia either to repeal its non-discrimination laws -- or to make them truly comprehensive. As the first option seems unlikely, it is time to act on the second.
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As unfortunately seems to be the norm for many gay rights cases, today's oral arguments drew almost no attention from the mainstream media. Only WRVA-1140 covered the story and interviewed both Michael Moore and myself after the oral argument. Unlike most reporters I have experienced, Jay Hart, the news reporter/anchor we spoke with had actually looked at the briefs in the matter. His audio report on the hearing is here. The following are highlights from the radio stations news web page:
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Richmond, VA (1140wrva.com) - Michael Moore was fired from the Virginia Museum of Natural History back in 2006, and he hopes the state supreme court will listen to him. He and his attorney Michael Hamar had a hearing in which Hamar had 10 minutes to verbally argue... along with his brief... why the court needs to hear the case. He points out although his client was probationary at the time he was fired, a U.S. Supreme Court case says that does not mean he can be denied an appeal when his constitutional rights are violated.
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Moore has moved to Florida and took the flight up to hear the brief argument. He says what happened to him has given him the impetus to get ready to go to law school. He says he called some 15 attorneys, looking for one to take his case, and didn't find one until he contacted Hamar. The Norfolk lawyer says many attorneys will not touch a gay rights case.
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He argued to the 3-justice panel that newspaper editorials are talking about a need for a law and case law, and he pointed out a university official urging an ignoring of state attorney general Ken Cuccinelli's legal opinion that state universities and colleges cannot protect gay students and employees.
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He [Moore] claims the museum's director at the time had said in a meeting three months before firing Moore that he objected on religious grounds to working with a homosexual employee. Moore claims at an August meeting, the director said he would "take care of it" in spite of advice he could not do it. No word on when the justices will decide on hearing the case.

Blogging Hiatus - Moore v. Virginia Museum of Natural History

From this morning through tomorrow evening, I will be taking a hiatus from blogging. Tomorrow at 1:00 PM, the Supreme Court of Virginia will hold oral arguments on the case of Michael Moore v. Virginia Museum of Natural History. Moore (at left) is a former employee of the Virginia Museum of Natural History who was terminated in November, 2006, for being gay. The Williams Institute has references to the case here as a case where a gay employee was terminated because of his sexual orientation by a public entity in Virginia.
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Amazingly, yours truly - who is neither a litigation attorney nor an appellate case attorney - finds himself scheduled to present the oral argument on Moore's behalf tomorrow. The boyfriend and I will drive to Richmond tonight and meet Michael Moore and we will return after the oral argument tomorrow. The state's pleadings clearly state that:
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Sexual orientation is not a protected class under either state or federal law. . . . The only source of protection for this classification is provided by the Governor's Executive Order #1 which, by itself, does not provide a cause of action.

In total contrast, Governor McDonnell's Executive Directive 1 (2010) makes the following statement in relevant part:

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.

The disconnection between these two legal positions cannot get much more apparent. Moreover, briefs on Moore's behalf have made among other arguments the exact one now embraced in Executive Directive 1 (2010). I have no idea how all this will end up, but will obviously be a nervous wreck until after the argument is over tomorrow afternoon.

Taliban Bob McDonnell Shows Anti-Gay Bias Again

One can only hope that the folks at Northrop Grumman were listening to Bob McDonnell lie during his radio address today - Taliban Bob says no employment non-discrimination protections for gays are needed in Virginia "based on the numbers he's seen." I guess McDonnell pulled the "numbers" out of his ass or else he parroted whatever was handed to him by Victoria Cobb at The Family Foundation.

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Call me Bob. I can tell you about the regular calls I receive from LGBT Virginians who have lost their jobs because of who they are and the fact that they did not conform to the bigoted religious beliefs of their employers or supervisors. Or McDonnell can ask my client Michael Moore. Or McDonnell can call me about the law firm that forced me out after I came out of the closet. Bob McDonnell needs to get his head out of his ass (or out of Victoria Cobb's and/or Pat Robertson's ass). Or maybe McDonnell is going to instruct Virginia's resident village idiot, Ken "Cooch" Cuccinelli to start enforcing state and federal constitutional equal protections that he says exist for gays and not just for Christianists and teabaggers? I doubt it. Here are highlights from the Richmond Times Dispatch in respect to McDonnell's disingenuous (and false) blather:

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Based on numbers he’s seen, Gov. Bob McDonnell said today he’s not sure the state needs a law protecting people against bias based on sexual orientation. Asked on his monthly radio appearance on WRVA if he would sign such a bill, the governor said, “I don’t know that we need it based on the numbers that I’ve seen.“
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“There really isn’t any rampant discrimination on any basis in Virginia,“ he said. “If you’re going to have a law, it needs to actually address a real problem.“

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Excuse me while I go vomit.

Cuccinelli Flips McDonnell the Finger - and Contradicts AG's Office in Moore Case

I have stated on a number of occasions that in my opinion Virginia Attorney General Ken Cuccinelli is certifiably insane. He is utterly unable to disconnect his religious extremist fantasies from objective reality and hopefully will, sooner or later, do something so off the wall that he finds himself impeached and thrown out of office. In an effort to stop worldwide mockery of the Commonwealth of Virginia (including Jon Stewart's "Gaywatch - the Virginia Addition"), Gov. Bob McDonnell signed Executive Directory 1 (2010) which included statements 100% contrary to both his own prior opinions and statements not to mention Cuccinelli's March 4, 2010 missive to public colleges and universities. One would think that Cuccinelli would have gotten the message after his "public spanking" as one news report described it, but that would be a mistake. Instead, Cuccinelli on his own initiative or on the directions of The Family Foundation reaffirmed his anti-gay policy to colleges and universities. While I do not trust Bob McDonnelll whatsoever, he is not certifiably crazy and it may turn out to be Cuccinelli who is the one ultimately spells the death knell for McDonnell's ambitions for higher office. Here are highlights from the Washington Post on Cuccinelli's continued lunacy:
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Virginia Attorney General Ken Cuccinelli II said Friday that it remains his legal advice that the state's public colleges and universities should remove language dealing with sexual orientation from campus anti-discrimination policies.
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Cuccinelli (R) said he continues to believe that the institutions are limited in their ability to adopt such policies without authority from the General Assembly. The legislature has repeatedly declined to put legal protections for gay men and lesbians into Virginia code. "What I said in my March 4 letter was accurate advice under Virginia law, and it still stands," Cuccinelli said in brief comments to reporters . . .
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Cuccinelli said he does not contest one of the McDonnell directive's central legal conclusions: that discrimination on the grounds of sexual orientation violates the U.S. Constitution, which courts have found protects individuals against irrational bias.
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Jon Blair, executive director of the gay rights advocacy group Equality Virginia asked McDonnell on Friday to appoint a special counsel to enforce his directive. Blair said Cuccinelli's position on the issue makes him and his staff unable to offer legal services on the issue. In a letter to the governor, Blair thanked McDonnell for his directive, which he called a "real step forward," but asked that governor go beyond what Blair termed its "largely symbolic promise" by pushing for legal protections in Virginia code.
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Given that Cuccinelli concedes McDonnell's point on the U. S. Constitution barring discrimination based on sexual orientation, it will be most interesting to see what the AG's office argues on March 31, 2010, in Moore v. Virginia Museum of Natural History. That concession is 108 degrees opposite of the AG's office's stance in its briefs and other filings in the Moore case. Does this statement by Cuccinelli mean his office is going to retract its statements in Moore? Obviously, he cannot have it both ways.

In to the Vortex - Moore v. Virginia Museum of natural History

With all of the political maneuvering by Virginia Governor Bob McDonnell in the wake of Attorney General Ken Cuccinelli's directive to Virginia public colleges and universities to rescind non-discrimination policies that included sexual orientation as an enumerated class - including the Governor's Executive Directive 1 (2010) issued yesterday - would think the situation could not get more convoluted and confusing. Yet, now the Supreme Court of Virginia will hold oral arguments on the case of Michael Moore v. Virginia Museum of Natural History on March 31, 2010. Moore was an employee of the Virginia Museum of Natural History who was terminated in November, 2006, for being gay. The Williams Institute has references to the case here as an case where an gay employee was terminated because of his sexual orientation by a public entity in Virginia. The irony is that yours truly, who is neither a litigation attorney nor an appellate case attorney, now finds himself schedule to to present oral argument on March 31, 2010 before the Supreme Court of Virginia on March 31, 2010. Little did I know when I agreed to assist Michael Moore (pictured above) back in late 2006 because he could find no other attorney in Virginia to help him that circumstances would lead to this point.
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The case has been fully briefed - the Virginia Attorney General's briefs make statements diametrically opposed to statement is Gov. Bob McDonnell's Executive Directive 1 (2010) - and it is hard to tell what the Virginia Supreme Court will rule in the matter. If the Court adopts the Attorney General's arguments in the case, it will confirm that McDonnell's Executive Directive 1 (2010) is a meaningless political stunt. If the Court accepts the arguments in the briefs submitted on behalf of Moore, employment discrimination - at least when involving state agencies and departments - based upon sexual orientation/religious belief will be struck down as illegal under the U.S. Constitution. I am clueless as to how the Virginia Supreme Court will rule, but if the Court rules against Moore, it will likely cut the Governor's latest move off at the knee caps and endanger the prospects of Northrop Grumman moving its headquarters of Virginia. If the Court rules for Moore, Pat Robertson, The Family Foundation and other Christian Right puppeteers of Gov. McDonnell and Attorney General Cuccinelli will be having apoplexy.

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Truth be told, Virginia has a major problem in terms of negative PR and should the Court rule against Moore, chances of Northrop Grumman - not to mention other corporations that afford equal rights and protections to LGBT employees - coming to Virginia may be toast. Candidly, I never envisioned myself involved in a case that could have such severe consequences on the entire Commonwealth of Virginia, not to mention my client. I guess one never knows what fate may lay at one's feet.

Possible Radio Interview

It seems thatat last some are realizing that a case involving employment discrimination based on sexual orientation is actually pending in the Virginia Courts - i.e., Moore V. Virginia Myseum of Natural History. I received an e-mail from a Richmond radio station seeking an interview. Here are highlights:
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Dear Mr. Hamar:
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It's my understanding you represented a gentleman by the name of Michael Moore who was dismissed by the supervisor at the Virginia Museum of Natural History in Martinsville Circuit Court. Obviously, as an attorney who's experienced the situation first-hand, I would honor the opportunity to speak with your for a radio news story on the situation... even under what was then Governor Kaine's executive order. I think you'll have a lot to say about a need to codify anti-discrimination based on sexual orientation.
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News Anchor/Reporter
WRVA Radio/Virginia News Network
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What is interesting in this case is that the Attorney General's office is making arguments directly opposed to statements made in McDonnell's Executive Directive 1 (2010). I hate interviews and hope this one will be on the air so that my statements do not get revised bu reporters less knowledgable on the issues. I will keep readers posted.

Virginian Pilot Slams McDonnell on Gay Rights Failure

Unlike Bob McDonnell and Ken Cuccinelli, some people in the Commonwealth worry about the sensibilities other than the Christo-fascists at The Family Foundation, Pat Robertson's CBN studios, and the wingnuts at Liberty University. Some of those people are on the editorial board of the Virginian Pilot - hardly my idea of a stellar newspaper, but with a large circulation by Virginia standards - and they are displeased with Mr. McDonnell and are fearful of what his theocratic regime may do to Virginia. Most business leaders are not Christian Right extremists (I'll address one exception, potential 2nd District Congressional GOP candidate, Scott Rigell in a later post) and college and university faculty most definitely typically are not. As a result, a Bible centered administration is likely to be regarded as down right frightening. Particularly, if one is gay or gay friendly. Sadly, Bob McDonnell cannot see beyond the script handed to him by The Family Foundation. Here are highlights from the Pilot's main editorial give McDonnell a dressing down:
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McDonnell has adopted an equal opportunity policy that prohibits "discrimination for any reason." It doesn't actually say gay workers are included in those protections, but everyone knows that's what the governor means because he said so. However, the policy covers only about 30 people.
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But those policies don't cover the vast majority of Virginia's 103,000 state employees. They don't prevent a forensic lab technician from being rejected if she asks about domestic partnership benefits during a job interview. They don't protect a museum employee from being assigned menial tasks because of his sexual orientation.
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McDonnell refused to sign an executive order guaranteeing workplace protections to gay state employees. . . . His passive posture on job discrimination would be troubling enough if he were leaving the fate of state workers in the hands of hundreds of individual agency heads. But it's an embarrassment for McDonnell to look on helplessly as Attorney General Ken Cuccinelli bullies colleges and universities that have retained workplace protections in place for at least eight years.
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This is not only an issue of fairness; it's also relevant to McDonnell's core mission of job creation. Universities often are important players in economic development packages. James Guyette, president and chief executive officer of Rolls-Royce North America Inc., cited a research partnership with the University of Virginia as a key reason his company selected Prince George County over locations in seven other states for an aircraft engine plant three years ago. If Cuccinelli succeeds in chasing talented academics who happen to be gay out of Virginia, their loss will reverberate beyond any one campus.
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McDonnell must decide whether it's more important to pacify his political base or to run an effective state government and attract jobs to Virginia. If a nondiscrimination policy is good for his gubernatorial staff, it should be good for all state workers.

Bob McDonnell is More Honest Than Tim Kaine

Like many, I am unhappy with Virginia Governor Bob McDonnell's decision to exclude sexual orientation non-discrimination protections from his new executive order that replaces predecessor orders signed by former governors Mark Warner (now in the U. S. Senate) and Tim Kaine (now DNC chair). I believe that the Virginia General Assembly needs to trump McDonnell and pass legislation that would give gay state employees true employment non-discrimination protections. Until that day occurs, an Executive Order signed by the Governor may give the appearance of protection, but I had the experience to see first hand just how ineffectual Kaine's Executive Order 1 (2006) was in practice and how former Governor Kaine made no serious effort to back the Executive Order's enforcement. The following is a press release authorized by my client, Michael Moore:

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PRESS RELEASE
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There has been much discussion in the media concerning Virginia Governor Bob McDonnell’s exclusion of sexual orientation from his new Executive Order which supersedes Executive Order 1 (2006) signed by former Governor Tim Kaine at the beginning of Kaine’s administration. Unfortunately, what is missing from the discourse is the ineffectiveness of Executive Order 1 (2006) and former Governor Kaine’s apparent utter failure to stand behind his own executive order. In the case of Moore v. Virginia Museum of Natural History now pending before the Supreme Court of Virginia, Michael Moore, who was fired by the Virginia Museum of Natural History located in Martinsville, Virginia, because he is gay sought protection under Executive Order 1 (2006). Throughout the administrative complaint process under Executive Order 1 (2006), Governor Kaine’s office was kept regularly up to date. Yet, despite the “Three Stooges” like nature of process as handled by the Virginia Department of Human Resource Management (“DRHM”), Governor Kaine did nothing to seek adherence to his executive order - even though the head of the Department of Natural Resources which oversees the Museum was Kaine’s own appointee.
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On appeal from the determination of DHRM which found improper discrimination against Moore based on his sexual orientation, but up held Moore’s dismissal on the basis of other false and fabricated allegations by Museum staff (which were inconsistent on their face), the Circuit Court of the City of Martinsville found that Executive Order 1 (2006) gave Moore no cause of action and the Court, which ignored constitutional issues, dismissed Moore’s appeal. The Virginia Court of Appeals side stepped the case and now the matter sits before the Supreme Court of Virginia waiting for oral argument. Had Kaine actually stood behind Executive Order 1 (2006) and demanded accountability from his appointees, the case could have been easily resolved. In reality, Executive Order 1 (2006) was an empty political gesture. While Governor McDonnell’s attitude towards LGBT Virginians is deplorable, McDonnell is at least honest about his agenda. Governor Kaine merely gave LGBT Virginian’s a false hope that their civil rights might actually be protected.

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For further information contact Michael B. Hamar- (757) 622-2008; mike@hamarlaw.com
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Now Tim Kaine is DNC Chair and in that position he is showing a similar reluctance to take any real stand for LGBT Democrats. Is it any surprise that Congressional Democrats are waffling on the repeal of Don't Ask Don't Tell even though a majority of Americans believe the anti-gay ban needs to go? Talk and actions merely for show are cheap. With Kaine at the helm of the DNC it's no wonder that Obama feels he can continue to throw LGBT Americans under the bus.

McDonnell Has Not Banned Bias in Virginia's Workforce

Not surprisingly, to date Virginia's new governor, Bob "Taliban Bob" McDonnell (at left) has not signed an executive order explicitly banning employment discrimination in Virginia government agency work force. McDonnell is the first governor in 36 years to fail to sign such an executive order as one of the first actions upon taking office. Obviously, this does not bode well for Virginia's public employees, particularly LGBT Virginians. In Michael Moore v. Virginia Museum of Natural History, McDonnell as Attorney General consistently maintained that sexual orientation is not a protected class and Ken Cuccinelli, the new Attorney General is even more homophobic than McDonnell. The irony is in all of this is that anti-gay discrimination is actual religious based discrimination which should already be illegal under Virginia and federal statutes and constitutions. Of course, McDonnell and Cuccinelli are Christianists and have in the past demonstrated that in their view only far right Christians have religious freedom while the rest of us are supposed to live under their imposed religious beliefs. Jefferson must indeed be rolling over in his grave across the valley from where I sit as I write this post. Like it or not, McDonnell is going to be forced to show his bigotry or take action that will inflame the gay-haters of the GOP base, many of whom in my view are also racists. Here are some highlights from the Washington Post:

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RICHMOND -- Newly inaugurated Virginia Gov. Robert F. McDonnell (R) has not yet issued an executive order barring discrimination in the state workforce, breaking a 36-year tradition by governors of both parties of making a formal statement on the issue one of their first acts in office.
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McDonnell was clear during his campaign for governor that he believed his two Democratic predecessors had overstepped the bounds of their executive authority when they included discrimination on the basis of sexual orientation in their orders on the issue and that he would not renew their acts.
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Virginia governors back to Mills E. Godwin Jr., who left office in 1978, have issued a statement prohibiting discrimination on those grounds as either their first or second executive order -- it was order No. 2 for both of the state's last two Republican governors, George F. Allen and James S. Gilmore III.
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Federal law prohibits discrimination on those grounds [race, religion and sex] and McDonnell's office said this week that he will not tolerate bias in his administration. However, a spokeswoman said he is still reviewing whether to formally issue what would be a symbolic executive order on the issue.
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The discrimination order poses a difficult choice for McDonnell, a social conservative who tried to play down controversial cultural politics during his campaign in favor of economic issues. Issuing an order without the language on sexual orientation would highlight its absence. Del. Adam P. Ebbin (D-Alexandria), the legislature's only openly gay member, said recently he'd prefer to see no order than one he would perceive as divisive that failed to mention sexual orientation. But issuing no order at all would be a clear departure from past practice in a state with a complicated and emotional history with racial discrimination.
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McDonnell's actions are being followed closely by members of the General Assembly, where Democrats have proposed legislation to ban discrimination, including on the basis of sexual orientation. Sen. A. Donald McEachin (D-Richmond), sponsor of the measure, said he hopes to receive McDonnell's support, given that the new governor has said repeatedly that he believed extending legal protections to sexual orientation, which is not covered by federal statute, is a policy issue that must be addressed by the legislature. The bill has narrowly cleared its first legislative hurdle, surviving a Democratically controlled committee on an 8 to 7 vote.
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McDonnell's office this week sidestepped questions about his position on the bill. Among its opponents is the conservative Family Foundation, which has been a major supporter of McDonnell's and twice awarded him its legislator of the year award while he was serving in the House of Delegates. Chris Freund, a spokesman for the group, said there is no evidence that gay state employees currently face workplace discrimination.
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McEachin said he believes state employees do still face discrimination. "I don't believe discrimination is a thing of the past," he said. "And if it is, what harm would a law do?" The full Senate will take up the measure next week but it will almost certainly die in the GOP-led House of Delegates, which has voted against similar measures.

Does Tim Kaine Care Anything About Gay Rights?

I and others have written about the recent Virginia Court decision involving Michael Moore, a former resident of Martinsville, Virginia, who was forced to resign from the Virginia Museum of Natural History because he is gay. As Pam Spaulding notes, Virginia has no anti-discrimination law, just Governor Tim Kaine's (who is also the DNC chair) 2006 executive order. I became involved in the case because Moore literally could find no other attorney to assist him after calling over a dozen attorneys. While Lambda Legal had provided him with the names of "cooperating attorneys," it had no interest in getting involved in the case. Likewise, the ACLU and HRC had no interest in getting involved in the case at the outset of the case, an issue I will return to later. In the aftermath of the ruling of the Martinsville Circuit Court, Kaine's office made the following comments to the Washington Blade:

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Gordon Hickey, a Kaine spokesperson, said the governor “feels very strongly” about non-discrimination in the state workforce, but that the executive order would be enforced within the executive branch of government as opposed to the court system.“The executive order remains in place, and it will be enforced as an internal policy,” he said. “If anybody is found to have been fired or discriminated against based on sexual orientation, they can be dealt with through personnel procedures of the state.”

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The statement, of course bears no resemblance to what we witnessed even though Moore filed a complain in accordance with the state's personnel procedures. Indeed, Kaine's office wanted nothing to do with the matter and the subordinate agency that handled the "investigation" was utterly incompetent in my view and seemed more dedicated to protecting the offending state agency than protecting Moore as an employee under the Executive Order. In short, in my opinion, Kaine doesn't give a flip about LGBT issues except for posturing to gain LGBT votes and campaign contributions. I suspect that he signed Executive Order 1 (2006) to fulfill a promise to LGBT organizations in his effort to get elected as Governor. That he is now DNC chair ought to severely disturb LGBT Americans given his disinterest in enforcing his own Executive Order.

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The second issue that this case brings up is the utter lack of support that the majority of LGBT citizens receive from organizations that proclaim themselves to be the protectors of LGBT Americans. When initially contacted, HRC had no absolutely no interest in getting involved because it did not want to upset its "good relationship" with Mr. Kaine. Other than e-mailing me a couple of cases, Lambda Legal was likewise missing in action and only re-contacted me after the Circuit Court ruling. The ACLU was a Jonny come lately in the matter, but at least assisted on drafting the legal memorandum in support of Moore's appeal petition to the Circuit Court pursuant to the state's personnel procedures. The Task Force never responded whatsoever.

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Unfortunately, Moore's experience does not seem to be unique in terms of being left to his own devices when victimized by anti-gay discrimination and bigotry. As one of a small number of out gay attorneys in Virginia, I know as a fact that vast areas of the state have no gay or gay friendly attorneys to potentially take on cases on behalf of LGBT Virginians. I also believe that Virginia is not alone in terms of the lack of available counsel to take on LGBT related cases. Yes, Lambda Legal and the ACLU have limited resources and need to select cases carefully. But something truly needs to be done to provide legal resources to LGBT citizens in areas where there are no gay friendly attorneys or where would be counsel are intimidated against taking on LGBT clients in cases where gay rights are involved.

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Personally, I wonder whether than spending money to go to Washington, D.C., soirees and cocktail parties, perhaps HRC and NGLTF ought to allocate more of their funds to litigation support for LGBT plaintiffs where equality and due process issues are involved. They certainly need to be asking some hard questions to Tim Kaine who seems to have adopted Barack Obama's habit of making statements of support but not following through with meaningful action.