McDonnell counters Cuccinelli's advice on gays

Gov. Bob McDonnell is strengthening largely symbolic anti-bias protections for gay state employees, attempting to douse a political firestorm set when his attorney general decreed such safeguards don't exist.

McDonnell, who previously had resisted legal protections for gay state employees, declared yesterday that as head of the government work force, he will not tolerate bias on the basis of sexual orientation and he threatened to fire offenders.

McDonnell was compelled to action after Attorney General Ken Cuccinelli told tax-supported colleges and universities last week that they have no legal foundation for protecting gay students and employees from discrimination.

Cuccinelli's position echoed a 2006 opinion by McDonnell that declared unconstitutional part of an anti-bias order by Gov. Timothy M. Kaine.

The controversy -- it ignited protests online and on campuses as well as in the General Assembly -- threatened to tarnish McDonnell's fledgling administration; made the state an object of ridicule on "The Daily Show with Jon Stewart"; and could complicate efforts to lure defense giant Northrop Grumman, which has gay-friendly employee policies, to relocate to Fairfax County from Los Angeles.

"It has caused too much fear and too much uncertainty in the business community and the higher-education establishment and among young people in the commonwealth -- and I simply won't stand for that," McDonnell told reporters.

The McDonnell decree does not establish a legal standard under which a gay employee could act against alleged bias; instead, it is an employment policy issued by the individual designated by the Constitution of Virginia as the government's chief personnel officer: the governor.

University of Virginia constitutional scholar A.E. Dick Howard said McDonnell's pronouncement is important because while "it doesn't create new law, [it] gives employees additional recourse under existing law."

The "executive directive," which invokes the U.S. Constitution and the Virginia Human Rights Act, does not carry the legal weight of an executive order, one of which McDonnell issued early in his term extending safeguards to the state work force against prejudice on the basis of race, religion, gender and age -- but not sexual orientation.

That distinction is consistent with McDonnell's 2006 opinion in which he struck down components of a Kaine executive order protecting gay employees. Kaine's order mirrored that of his predecessor, fellow Democrat Mark R. Warner.

Cuccinelli's opinion, which relied on McDonnell's and those of other attorneys general, said colleges and universities cannot prohibit discrimination against gays because the General Assembly has not authorized them to do so.

Cuccinelli, elected on the coattails of fellow Republican McDonnell, yesterday applauded the governor "for the tone that he is setting for the commonwealth of Virginia," but he did not say whether he agrees with McDonnell's thinking.

"I expect Virginia's state employees to follow all state and federal anti-discrimination laws and will enforce Virginia's laws to the fullest extent," Cuccinelli said.

McDonnell's directive capped a frantic day during which Democrats and Republicans attempted to tack anti-discrimination language to deal-sweetening legislation sought by the governor as part of the Northrop Grumman courtship.

In the House, Speaker William J. Howell, R-Stafford, said there was no basis for the provision by Del. Adam P. Ebbin, D-Alexandria, the General Assembly's only openly gay member. Similar language, by Senate Republican Leader Thomas K. Norment Jr. of James City, is pending in the Senate.

Republicans, who killed in the House a measure by Sen. A. Donald McEachin, D-Henrico, to provide safeguards in law, said that if McDonnell had sent down legislation adding sexual orientation as a protected class, it would have failed.

"They're so terrified of the Family Foundation that they don't go to the bathroom without consulting them first," Senate Majority Leader Richard L. Saslaw, D-Fairfax, said of the conservative grass-roots organization that has defended Cuccinelli.

But Steve Waters, a Republican operative closely aligned with the party's conservatives, said of the McDonnell statement: "There is trouble in the Republican house when the attorney general seems to side with the grass roots of the Republican Party and the governor and lieutenant governor seem to be straying away."

Lt. Gov. Bill Bolling, who hopes to succeed McDonnell as governor in 2014, issued a statement strongly supporting McDonnell's action.

On the House floor, Dels. Joseph D. Morrissey, D-Henrico, and David L. Englin, D-Alexandria, called on McDonnell to propose legislation before the General Assembly adjourns Saturday.

The gay-rights group Equality Virginia praised McDonnell's directive but said that because it is not backed by law, it doesn't go far enough.

The gubernatorial decree "is silent regarding discrimination based on gender identity and does not afford any protection to students at our state colleges and universities, so it is clear that there is much work still to be done."

However, the president of the College of William and Mary, W. Taylor Reveley III, welcomed the McDonnell directive: "We are reassured by the governor's words. We never believed that the commonwealth of Virginia wanted discrimination on its campuses."

University of Virginia President John T. Casteen III praised the directive's "eloquence and clarity," adding: "This had become an uncommonly troubling issue, one that cuts to the core of our common claims to the most fundamental kinds of personal security under the rule of law."

The lobbying arm of the state's information-technology industry, the Northern Virginia Technology Council, signaled relief over the McDonnell statement.

But the technology council, which endorsed McDonnell for governor, said Cuccinelli's "action could damage Virginia's stature" as a business-friendly state, one in which the caliber of its higher-education system is a selling point with corporate prospects.