McDonnell rules Kaine out of order on gay-discrimination ban

Bob McDonnell

By Christina nuckols
The Virginian-Pilot

RICHMOND - A gubernatorial ban on discrimination against gay applicants for state government jobs is unconstitutional, according to a ruling Friday by Attorney General Bob McDonnell.

Former Gov. Mark Warner and Gov. Timothy M. Kaine exceeded their authority when they signed executive orders adding sexual orientation to the state's nondiscrimination policy, McDonnell wrote in a seven-page legal opinion.

The attorney general noted that lawmakers earlier this month voted to kill a bill backed by Kaine that would have made his executive order a state law.

"He can't just say, 'To heck with the General Assembly. I'm going to sign an order,' " McDonnell said in an interview.

A spokesman for Kaine noted that McDonnell's ruling is advisory, and that the attorney general cannot force the governor to rescind his order.

"The governor is flabbergasted that the attorney general would opine that the governor cannot instruct his management team not to discriminate," said Kevin Hall.

Hall said Kaine believes his decision to expand employment protections to gay and lesbian workers is "not only morally right but legally proper." The spokesman emphasized that the executive order covers only agencies under Kaine's direct supervision.

"We're not presuming that this is the policy of the judicial branch or the legislative branch, although it certainly ought to be," Hall said.

Employment discrimination in state government was first prohibited in Virginia through an executive order in 1973 issued by former Gov. Linwood Holton, Kaine's father-in-law. Warner extended protections against discrimination to gay workers in December, a month before his term ended.

Kaine reiterated that policy by signing an identical order within minutes after he was inaugurated Jan. 14.

Friday's ruling was requested by Del. Robert Marshall, R-Prince William, an outspoken advocate of a proposed constitutional amendment prohibiting same-sex marriage. Marshall said he filed the request in December, after Warner's original executive order and before McDonnell took office.

Marshall said he viewed Warner's order as a threat to the legislature's authority to dictate public policy.

"The homosexual interest groups do not win victories when they go through the legislature," Marshall said. "They win them in courts and they win them by going through the governor of Virginia."

The issue represents the first significant policy clash between the new governor and attorney general, who have been in office 40 days. For now, the matter is merely a political dispute, but it could result in a legal imbroglio if the executive order became the subject of a lawsuit.

McDonnell, a Virginia Beach Republican, said his ruling would prevent him from representing Kaine in that scenario.

The attorney general said his ruling was based on his reading of executive and legislative powers, and not an indication that he supports discrimination against gays and lesbians.

McDonnell said he is still reviewing written employment policies for his staff, but he said he will not discriminate against gay job applicants.

"The only thing I want to know is how good a lawyer someone is going to be," he said. "I have no intention of discriminating on that basis."

Dyana Mason, executive director of the gay rights group Equality Virginia, said the ruling "sends a really discouraging message to those wishing to serve in state government."

Mason's group surveys elected officials in Virginia on their hiring practices. According to the group, 60 of 100 delegates and 24 of 40 senators have pledged not to discriminate against gays when hiring legislative staffers. U.S. Sens. John Warner and George Allen have similar policies.