|
Virginia
Attorney General Robert McDonnell recently issued an
opinion that Gov. Timothy Kaine had no authority to
issue an executive order barring state agencies from
discriminating between people because of sexual
orientation. Setting policy is a legislative act, he
says, something a governor can’t do. Kaine says
McDonnell is all wet, because as governor he can
direct how agencies conduct their business.
McDonnell
also takes issue with the wording of “equal
opportunity in all facets of state government.” An
executive order can’t apply to the judicial and
legislative branches, he says.
Hold
on, guys. Although “state government” is not
defined, the only sensible way to interpret it is
for it to apply to whatever agencies a governor’s
executive order can apply to, namely agencies in the
executive branch of government.
The
truth is, the Virginia argument is moot. In 1996 the
U.S. Supreme Court in Romer v. Evans (517 US 620)
struck down a Colorado constitutional provision that
barred government from including sexual orientation
in anti-discrimination policies.
In
Romer, the court said government generally may not
single out people by their sexual orientation to
discriminate against them, that such policies deny
individuals equal protection under law: “Central
both to the idea of the rule of law and to our own
Constitution's guarantee of equal protection is the
principle that government and each of its parts
remain open on impartial terms to all who seek its
assistance.”
Government
can discriminate between classes of people only if
there is a rational relationship to a legitimate
state interest, the court said. Is there any reason
for government to disfavor people in employment for
state jobs or other dealings with the state because
of their sexual orientation? Would it serve any
governmental purpose? No.
McDonnell
stressed that the Virginia legislature has not
included sexual orientation in various
anti-discrimination laws that apply to
everyone. However, the legislature has
not passed a law saying state agencies may
discriminate. Because of Romer, the only way
agencies can discriminate is to have a reason that
it furthers a public interest.
If
they don't have such a reason, if they don't have a
policy meeting those standards, then their default
policy must be to not discriminate. Executive order
or no executive order, Romer limits how
government may discriminate because of sexual
orientation. State agencies may not discriminate
until first the General Assembly proactively decides
that they may and comes up with an acceptable
reason.
Has
that happened? No. Kaine's order correctly
interprets the law.
Although Kaine is
correct and no doubt has good intentions, there
could be unintended consequences. Does his order
give government the right to be nosy? In directing
that agencies shouldn't make employment and
procurement decisions based on sexual orientation,
does he burden agencies with collecting data so they
can show that they're not discriminating on that
basis? Sexual orientation isn't on government job
application forms…yet. Will it be added now?
Kaine
no doubt has good intentions, but there could be
unintended consequences. Does his order give
government the right to be nosy? In directing that
agencies shouldn’t make employment and procurement
decisions based on sexual orientation, does he
burden agencies with collecting data so they can
show that they’re not discriminating on that
basis? Sexual orientation isn’t on government job
application forms… yet. Will it be added now?
This
sexual orientation snit in Virginia is not the first
in the country. In 2003 the Arizona Supreme Court
refused to hear a complaint from a group of
legislators alleging that Gov. Janet Napolitano
overstepped her authority in issuing an
anti-discrimination policy that included sexual
orientation. The court thus left the policy intact,
and in place.
In
Iowa a district court judge ruled in 2000 that Gov.
Tom Vilsack did not have authority to add to
categories of state employees already protected from
discrimination under state law. He, with some
nimbleness, reissued his executive order, pledging
opposition to discrimination but without naming
specific classes of people.
Is there some way both
Kaine and McDonnell can declare victory and go
home?
There
is. Kaine could clarify that his order was issued as
“guidance.” Mere “guidance” should easily
pass muster with the attorney general.
At
the same time Kaine should stop agencies from
collecting personal sexual-orientation data before
they start putting it in the databanks.
Where
does that leave us Virginians? When anyone asks
about your intimate, personal private life, tell
them: “Ain’t none of your business!” It never
has been.
Copyright
VA Lawyers Weekly, 2006. Used with Permission.
--
March 20, 2006
|
