Intersection of Law and Policy

by Greg Nevins
Supervising Senior Staff Attorney

Lambda Legal can't fight every battle or react to every misinterpretation of the law uttered by someone hostile to LGBT rights.

So the question of what to do came up when, on March 4, newly-elected Virginia Attorney General Kenneth T. Cuccinelli, II wrote to officials heading Virginia's public universities, urging them to rescind their policies against discrimination based on sexual orientation.

On one hand, we could have sat back, knowing that the attorney general's seriously flawed opinion wouldn't change the Equal Protection Clause of the United States Constitution, which protects gay men and lesbians from sexual orientation discrimination. We also might have wondered whether it was our place to come to the intellectual aid of someone who is supposed to be protecting the state's legal interests, and who instead is giving public officials bad advice that could lead to legal expense and liability.

But we felt we should weigh in, to refute the notion that the law permitted antigay discrimination on Virginia's public campuses. Virginia students, faculty, and staff don't want a cause of action so much as they want not to face discrimination in the first place. Moreover, while a good lawyer could explain to any state actor the established principle that the government can't engage in irrational antigay discrimination, there often is no substitute for a clear policy written in black and white.

Thus, on March 8, we issued an open letter to Attorney General Cuccinelli, copied to the university officials, explaining the flaws in his legal analysis.

Interestingly, after making our case to the Attorney General about the error of his ways, Lambda Legal quickly found the current governor and a former governor – both former attorneys general – echoing our points. Cuccinelli's offensive was apparently too much even for Governor Robert McDonnell. In 2006, when then-Governor Tim Kaine issued an executive order against antigay discrimination, McDonnell, then attorney general, opined that it was unconstitutional. However, on March 10, less than a week after Cuccinelli's missive, McDonnell emphatically pointed out in a directive to all state employees that "The Equal Protection Clause of the United States Constitution prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one's sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution."

That same day, former Governor Gerald Baliles, also a former Attorney General, endorsed our position that public universities have broad powers to enact policies such as the antidiscrimination policies under attack. General Cuccinelli's opinion relied on a Baliles opinion regarding the limited powers of cities and counties. But Baliles reiterated Lambda Legal's point that whatever powers municipalities do or don't have is irrelevant to the power of universities to enact policies, given the broad grant of authority from the Legislature to universities.

At the end of the day, this was a classic example of unintended (and in some ways fortunate) consequences. Many Virginians despaired in January when Governor McDonnell rescinded the provision in the two previous governors' executive orders banning sexual orientation discrimination in state employment. But the Cuccinelli opinion forced Governor McDonnell to acknowledge what his prior actions had not – that whether or not an executive order protects gay and lesbian Virginians from discrimination, the federal constitution does.