Kaine Order To Shield Gays Called Unlawful

By Michael D. Shear and Chris L. Jenkins
Washington Post Staff Writers
Saturday, February 25, 2006

RICHMOND, Feb. 24 -- Virginia's Republican attorney general said Friday that Gov. Timothy M. Kaine (D) had violated the state constitution by issuing an executive order banning discrimination against gay men and lesbians in the state workforce.

Kaine said he would ignore the six-page advisory opinion from Attorney General Robert F. McDonnell (R).

"I'm not going to tell my Cabinet secretaries and agency heads that they are now free to discriminate," he said.

In his opinion, requested by a state lawmaker, McDonnell said Kaine's executive order "is beyond the scope of executive authority and, therefore, unconstitutional." In an interview, McDonnell said the governor had usurped the legislature's right to make law.

"He is not free to set a policy on his own that is beyond the scope of that which has been authorized by the General Assembly," McDonnell said. He also said the Virginia Supreme Court has never recognized gay people as a protected class.

"The General Assembly has clearly set various policies about nondiscrimination on the basis of race, sex and national origin," McDonnell said. He added: "To the contrary, [lawmakers] have . . . rejected a statewide policy of nondiscrimination regarding sexual orientation."

McDonnell's opinion does not have the force of law, and the order remains in effect.

Kaine and his predecessor, Mark R. Warner (D), have argued that protecting gays from discrimination is widely accepted and that most Virginia lawmakers in both parties have signed pledges to not discriminate in their hiring.

But lawmakers have opposed extending that protection into state law.

A Senate committee defeated a measure this month that would have barred discrimination in state hiring based on sexual orientation. On Thursday, the House of Delegates and the Senate removed language from the budget submitted by Warner that included those protections.

"Homosexuals don't win in state legislatures. That's why they go around them," said Del. Robert G. Marshall (R-Prince William), who asked McDonnell for the opinion.

The dispute is the first public clash between Kaine and McDonnell, who, despite being from a different political party, serves as the top lawyer for the governor and the executive agencies. In Virginia, the positions are elected separately and often are held by political adversaries.

A constitutional law expert said Friday that Kaine might have the authority to issue such an order on certain hiring because he is the head of the state's executive branch. "The governor . . . has considerable responsibility for the people who serve in that branch," said Carl Tobias, a professor of constitutional law at the University of Richmond. "It seems to me that he should have substantial responsibility for that kind of hiring."

A representative for the state's largest gay rights group ascribed political motivations to McDonnell's decision.

"In one of his first official acts as attorney general, McDonnell has shown that . . . [he] will strain to reach legal conclusions that will please the most narrow-minded of the constituents to whom he must feel he owes last fall's slim margin of victory," Dyana Mason, executive director of Equality Virginia, said in a statement. She was referring to McDonnell's 360-vote victory in last year's election.

Groups opposed to extending additional rights to gays applauded McDonnell's opinion.

"The attorney general has rightly stated that the public policy of the commonwealth should be decided in the legislature," said Victoria Cobb, executive director of the Family Foundation. She added that in this session, "every legislative effort regarding elevating sexual orientation to a special class failed. Their only recourse is activist judges or backdoor political actions like the use of the executive order."

Kaine signed the executive order the day he was inaugurated. Days before leaving office, Warner amended an order to extend protections to gays.

Warner spokeswoman Ellen Qualls said, "The idea that the governor can't set a policy for state employees that the majority of legislators themselves have embraced makes no sense."

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