Va. gov counters state attorney general’s advice that colleges can’t bar gay discrimination

Va. gov counters state atty. gen.’s advice on gays

RICHMOND, Va. — Gov. Bob McDonnell directed state agencies not to discriminate against gay people in employment practices Wednesday, essentially overriding the Virginia attorney general’s advice to public colleges.

The governor issued the written directive as about 200 gay-rights activists swarmed the Capitol to protest Attorney General Kenneth Cuccinelli’s letter last week telling public colleges they cannot prohibit discrimination based on sexual orientation without specific authorization from the General Assembly.

The Virginia Human Rights Act bars discrimination based on race, gender, disability and other factors, but the legislature has repeatedly refused to add sexual orientation to the law.

Nevertheless, McDonnell’s directive says state agencies cannot discriminate against gay people.

“Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution,” he wrote. For that reason, “discrimination against any class of persons without a rational basis is prohibited.”

Cuccinelli had advised public colleges to rescind or change any anti-discrimination policies protecting gays. McDonnell spokesman Tucker Martin said colleges now can keep their policies as long as they are “consistent with the principles of the directive.”

After the governor issued his directive, Cuccinelli said in a brief written statement that he applauds McDonnell “for the tone he is setting” and that he expects state employees “to follow all state and federal anti-discrimination laws.” Cuccinelli was not available for further comment, a spokesman said.

Jon Blair, chief executive officer of the gay-rights group Equality Virginia, called McDonnell’s directive “a major positive step forward” but lamented that it applies only to employment and does not offer any protection to students.

McDonnell told reporters he felt compelled to issue the policy statement because of the widespread concern that followed Cuccinelli’s letter.

“I felt it was necessary to make sure that every Virginian, every state employee know that we will not tolerate discrimination,” he said. He said the directive “makes it absolutely clear for every manager, every Cabinet member, every employee in the executive branch that I will not tolerate discrimination on any basis in the state of Virginia.”

However, the policy outlined by McDonnell leaves unchanged an executive order he issued earlier in his term pertaining to equal opportunity in all facets of state government, including employment and purchasing. That order limits protection to the classes of people included in the Virginia Human Rights act and leaves out gays, who had been included in the executive orders issued by the last two governors, both Democrats.

According to the governor’s office, a directive formally states the governor’s standard of conduct for the executive branch of state government. An executive order has the force of law.

“While the separation of powers doctrine precludes the Governor from changing the Virginia Human Rights Act via Executive Order, he wants to be clear that discrimination in state employment will not be tolerated,” McDonnell’s chief of staff, Martin L. Kent, wrote in a letter to state employees explaining the new directive.

The furor over Cuccinelli’s letter has been building since it became public Friday. About 1,000 students at Richmond’s Virginia Commonwealth University attended a protest rally Wednesday, and about 200 of them later marched through downtown to the Capitol to talk to legislators.

“We’re not a state that needs to breed bigotry,” said student Van Jones, 20, of Richmond.

Critics of Cuccinelli’s letter, including members of the state’s House of Delegates, have warned that colleges that rescind protections for gays could lose accreditation of certain programs, and that it could discourage businesses from locating in Virginia.

“Do you want to let Ken Cuccinelli’s anti-gay crusade risk thousands of good-paying jobs in Virginia?” Del. David Englin, D-Alexandria, said on the House floor Wednesday.

The House’s most outspoken social conservative, Del. Robert G. Marshall, responded with a five-minute anti-gay speech that suggested criticism of Cuccinelli was motivated by anti-Catholic bias. Marshall, R-Prince William, is a Roman Catholic, as is McDonnell.

Marshall also invoked one-time Soviet spy Whittaker Chambers — who later fingered Americans as communists during the Red Scare of the 1940s — for overcoming what Marshall called “a difficulty with homosexual attraction.”

Associated Press Writers Bob Lewis and Steve Szkotak contributed to this report.