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.

Write Nancy Pelosi on ENDA

Cleve Jones, a pioneering equal rights activist featured in the film "MILK," creator of the AIDS Memorial Quilt, and Senior Advisor to the Courage Campaign, has drafted an open letter to House Speaker Nancy Pelosi urging her to bring ENDA forward for action in the House of Representatives. In a majority of states it remains perfectly legal for LGBT employees to be fired because of their sexual orientation/religious beliefs. I had the honor of attending a private screening of the movie "Milk" in December of 2008 where Cleve was a panelist and the man is indeed inspiring and I support his efforts on this issue. Now, Get Equal has a web page that allows you to add your signature to Cleve's letter. Here are highlights from his letter:
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This profound statement [passage of health care reform] about the power of politics to change the lives of everyday people touched me deeply. And it reminded me of the opportunity we have right now to transform the lives of Americans again -- the Employment Non-Discrimination Act.
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As shocking as it may be to believe in the year 2010, in 29 states a lesbian, gay or bisexual person can be fired simply because of their sexual orientation and in 38 states a transgender person can be fired because of their gender identity. That's why the Employment Non-Discrimination Act is so vitally important.
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Once passed, ENDA would provide to all Americans basic protections against workplace discrimination on the basis of sexual orientation or gender identity. As my friends at Pride at Work describe it, ENDA is "based on the labor principle that every worker should be judged solely on his or her merits as a worker" and is similar in nature to other federal civil rights laws like Title VII of the Civil Rights Act of 1964.
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We've seen the passion you've brought to the challenge of passing health care reform. Now more than ever, we need your passion and skill to achieve the passage of ENDA.
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As you know, many Americans in the LGBT community -- especially young people -- are increasingly frustrated and cynical about the pace of progress in Washington. We want you to show them that cynicism is not the response at this time. They need to believe in the process, Madame Speaker, and you can restore their faith in this process by moving expeditiously to bring ENDA to a vote on the floor of the House of Representatives.
I know your values, Madame Speaker, and I know that you strongly support ENDA. Now I want these young people to know what is in your heart.

With the knowledge that health care reform has been achieved and that enough votes now exist in the House today to pass ENDA, will you work with Rep. George Miller, Chair of the House Committee on Education and Labor, to ensure that ENDA is passed out of committee and brought to the floor of the house immediately?
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To add your signature to the letter, please go to Get Equal's web page here and take action. I already have done so.

Cuccinelli Receives Widespread Condemnation

In the wake of his letter to the public colleges and universities in Virginia directing them to strip gays and lesbians of employment protection policies, the reaction has been loud and one of universal condemnation - except of course for the Christo-fascists at The Family Foundation, Daddy Dobson's racist, anti-immigrant and anti-gay affiliate based in Richmond which applauded Cuccinelli's action. As I noted yesterday, one can only wonder what else Cuccinelli wants to eliminate in Virginia. Abortion is certainly one item on his hit list as is divorce and birth control in all likelihood. I have been chided by some for using the word "Taliban" in connection with Bob McDonnell and Cuccinelli, but I believe it is apt insofar as it underscores their desire to force all Virginians to live by their extremist personal religious dogmas. The vileness of Cuccinelli's action really struck me last night at dinner at a local club surrounded by an all gay and lesbian clientele - under Cuccunelli's view, every one of us is less than full human and a deserving target of discrimination. One can only believe that Cuccinelli's action will embolden some homophobes who see his letter as a green light to do harm to LGBT citizens. The following are highlights from a statement I received via e-mail from the Virginia Senate Democratic Caucus late yesterday:

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“Virginia is the proud home to world class colleges and universities who can determine appropriate discrimination policies for themselves,” said Senator Mary Margaret Whipple (D-Arlington), chair of the Virginia Senate Democratic Caucus. “Our schools and our state should welcome the best and brightest from all over the world without discriminating based on race, gender, sexual orientation, or any other characteristics.”
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“The Attorney General’s actions are unconscionable. It's this kind of misguided behavior that can cost Virginia high-paying jobs with companies that value diversity,” said Senate Majority Leader Dick Saslaw (D-Fairfax).
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“Many of us thought this was the course Ken Cuccinnelli would choose as Attorney General, and I am sad to say we were correct,” said Senator A. Donald McEachin (D-Henrico). “Attorney General Cuccinelli and Governor McDonnell are putting McDonnell’s troubling graduate school thesis into practice.”
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“Attorney General Cuccinelli is turning the clock back on civil rights in Virginia,” said Senator John Edwards (D-Roanoke). “His advice to Virginia’s colleges and universities has no basis in the law.”
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According to Metro Weekly, one Virginia Tech dean is not cowed by Cuccinelli. Here are highlights:
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Dr. Karen DePauw, the vice president and dean for graduate education at Virginia Tech, said on Friday that regardless of the letter, ''We will continue to have an open and inclusive environment for the grad school, I am confident of that.
''I cannot speak for the whole university because I have not seen the letter and we haven't had a chance to talk about it,'' she said. ''As vice president and dean for graduate education, I anticipate and am hopeful that we will have a thorough discussion before we take any final action.''

*LGBT Virginians are citizens of the United States who deserve equal protection under the law and freedom from religious based discrimination because they do not live their lives in accordance with certain Christianist beliefs. A number of U.S. District Courts have held that discrimination based on sexual orientation is illegal under the U.S. Constitution and it's time for the Virginia Supreme Court to put an end to such discrimination. It has that opportunity with a case now pending before it at this very moment.

Shouldn't the Laws Protect GLBT Americans Who Haven't Been Victims of Violence?

Do not misunderstand. I am thrilled that the federal government has finally signed a hate crimes bill into law that affords GLBT citizens the same hate crimes protections that others - inckluding our enemies among the Christian Right - have enjoyed for years. Sadly, however, the new protections only kick in once one has been the victim of anti-gay violence. In the majority of states, we can still be fired at will, subjected to discrimination in housing and a host of other areas of daily life, and our relationships are ignored or denied any legal status. The Washington Post has a column that looks at this sad reality and ask the question of why can't Congress act to protect us BEFORE we have been hurt and brutalized. It is a valid question and one that makes the recently passed hate crimes legislation appear to be a less than major victory in relative terms. Will this new federal legislation break the log jam and induce Congress to act on ENDA and the repeal of DOMA and DADT? Only time will tell. Meanwhile, the USA slips further down the list of progressive countries. Here are some column highlights:

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When President Obama signed the Hate Crimes Prevention Act into law Wednesday, human rights advocates across the country won a decent, but insufficient, victory. At face value, the bill is but a reluctant acknowledgment that Americans assaulted because of their sexual orientation are indeed victims of bigotry. Adding insult to injury, the measure had to be attached to a defense spending bill just to pass. Is this the best Congress can muster when it comes to advancing gay rights?
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Such legislation will not bring back to life Matthew Shepard or James Byrd Jr., the slain men for whom the act is named. Nor will it make Jack Price -- the gay New Yorker beaten nearly to death this month -- any less battered. The law morbidly protects gays only after they have been attacked; any consideration for their safety and human rights before such an occurrence still seems a congressional afterthought.
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Put another way, our nation's dead and hospitalized homosexuals, bisexuals and transgendered people are receiving after-the-fact sympathies, while the healthy gays and lesbians among us are expected to suffer from the same root discrimination. Are rights advocates expected to remain patient, even happy, about such progress?
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It is wrong to ask gay Americans to wait until every future war is won, every societal ill is treated and every business is booming before being granted equal protection under law; it is equally disturbing to think that today, one must be a victim of a hate crime before receiving such consideration. Is it too much to ask for more, sooner rather than later?

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I agree with the column's author completely and I hope all readers in the USA will contact their members of Congress and demand that ENDA and the repeal of DOMA and DADT move forward NOW - not sometime in the future when "convenient."

Responses to a Christianist

On Friday I ended up having a debate so to speak with someone who I suspect may have been a former acquaintance in the Republican Party from my closeted past. By the comments the person made I suspect that they are one of the far right, Christian fundamentalist element that has now come to control the GOP and who are unwittingly driving the party towards irrelevance as moderates and non-religious extremists continue to flee the party in droves - may own family is a case in point since it has gone from being nearly 100% Republican to 100% Democrat. We did not change our political views, but the GOP did as it became a de facto party where religious beliefs trump all other concerns. During the course of our exchanges, it became clear that this individual is incapable of letting go of his/her religious indoctrination. It was particularly ironic that I was accused of focusing on everything gay when it is the Christianist who define LGBT Americans by their sexual orientation to the exclusion of all else. Here are some samples of our discourse:

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Anonymous: Why is everything about being gay and didn't you once consider yourself a Republican? Was it ALL an act?

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Michael-in-Norfolk: It's not "all about being gay." However, it is a major issue since as a gay Virginian, I do not have the legal protections that other minorities have, I can be fired at will, I get discriminated against in court as a litigant because I am gay, and my relationship with my life partner gets no legal recognition. Give me and other gays full equality under the civil laws and employment laws and I'd have much less to discuss on this blog.

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In answer to your questions: (1) Having bought into my religious "brainwashing" if you will, trying to be straight was an act of trying to be what church and society told me I was supposed to be. For many years I tried to convince myself that I wasn't really gay even though in my heart I suspect I always knew the truth but just could not accept it. (2) I was a Republican and considered myself as such. But the GOP then and the GOP now are utterly different creatures. I left the GOP as it was being taken over by Christianists who have a goal -in my view - of subverting the U.S. Constitution (and state constitutions as well) to impose an intolerant version of Christianity on all citizens.

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Anonymous: We can all be fired at will. That is part of living in Virginia. What I don't understand is why you are so angry at Christians. As Christians we are taught to love the sinner but hate the sin and the Bible teaches that gay relationships are sin. Can you honestly say that you are happier now than you were when you were married, living with your children and respected in your law practice? I believe that God does not want you to have this lifestyle because He knows how hurtful it is. You sound hurt. You also sound very angry at God. Why do you have to bash people like Randy Forbes? While I dont happen to like him as a person, I do respect what he is doing in Washington and hope that he is successful in his fight to keep dems from removing God from everything. I hope you can find some peace in your heart and pray that God will remove some of the bitterness that you have inside.

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Michael-in-Norfolk: Actually, not all of us can be fired at will in Virginia - at least not if the firing is based on age, race, religion, national origin, marital status, ancestry, or disability. Gays on the other hand are sitting ducks. I am angry at the FALSE Christians who preach hate and division such as Pat Robertson, James Dobson, Tony Perkins, Victoria Cobb, et al. My Lutheran parish for example is very Christian in the correct sense: helping the poor, accepting minorities and gays, feeding the homeless, etc., without constant condemnation of others. I have no complaint with such true Christians.

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Anonymous, the very fact that you use the term "lifestyle" shows that you are clueless and/or religiously brainwashed. Sexual orientation is NOT a lifestyle choice - it's like breathing and is part of what one is. Like it or not I have ALWAYS been gay from my preteen years onward. True, one can try to pretend it's not really true as I did, but you are only fooling yourself and very likely making yourself and those around you miserable. ALL legitimate medical and mental health experts confirm that sexual orientation CANNOT be changed. James Dobson and others who claim one can change are liars - and they know they are liars but do not care because of political and/or monetary reasons.

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Am I happier now? Yes, I am. Finally accepting one's self for who/what you are is beyond price. Moreover, I have a wonderful guy in my life who loves me and loves my children. My children reciprocate the affection with him. In fact, he cares for me more than I suspect my wife ever did.

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The Democrats are not trying to remove God from anything - they are merely opposing the imposition of the Christian Right's God on everyone else be they Jews, Hundu, Muslims, etc.

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Lastly, I am still respected in my law practice and my clients range from Hindu and Muslims to Jehovah's Witnesses. They care about my competence as an attorney, not who I go home to at the end of the day.

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Once I came out of the closet, my name was dragged through the mud in Republican circles in Virginia Beach even though I had done much to help the local party in prior years serving both on City Committee and as a precinct captain among other things. One would have thought that overnight I had become a child molester or something equally heinous jus because I was gay. I am not defined by my sexuality, yet it is people like Anonymous who cannot see beyond the fact that I am gay. And worse yet, that I am OK with it - in fact, I am gay and proud. It's something that is truly beyond their comprehension.