By Rosalind S. Helderman
Sunday, January 31, 2010; 10:55 PM
RICHMOND -- Newly inaugurated Virginia Gov. Robert F. McDonnell has not issued an executive order barring discrimination in the state workforce, breaking a 36-year practice by governors of both parties of making a formal statement on the issue one of their first acts in office.
McDonnell (R) was clear during his campaign for governor that he thought his two Democratic predecessors had overstepped the bounds of their executive authority when they included discrimination on the basis of sexual orientation in their orders on the issue and that he would not renew their acts.
But McDonnell has never suggested that he opposed statements about discrimination on grounds that include race, religion and sex. In a 2006 opinion he issued as Virginia's attorney general, he specifically said he found such orders constitutional.
Going back to Mills E. Godwin Jr., who left office in 1978, Virginia governors have issued a statement prohibiting discrimination on those grounds as their first or second executive order. It was order No. 2 for the state's last two Republican governors, George Allen and James S. Gilmore III.
Federal law prohibits discrimination on those grounds, and McDonnell's office said last week that he will not tolerate bias in his administration. But a spokeswoman said he is still considering whether to issue what would be a symbolic executive order on the issue.
"It has always been the Governor's position and policy not to discriminate -- period," spokeswoman Stacey Johnson said in a statement. "On Jan. 16, he took an oath of office to uphold and enforce state and federal laws -- which include protections against discrimination."
"We are currently in the process of reviewing all remaining executive orders," she added.
McDonnell has signed two orders, both shortly after taking the oath of office. The first created an economic development commission, and the second established a task force on governmental reform. Both were designed to show that he was leaping immediately into the challenge of healing the state's economy and closing its budget shortfall.
The discrimination order poses a difficult choice for McDonnell, a social conservative who tried to play down controversial cultural politics during his campaign in favor of economic issues.
Issuing an order without language on sexual orientation would highlight its absence. Del. Adam P. Ebbin (D-Alexandria), the legislature's only openly gay member, said recently that he would prefer to see no order rather than one that fails to mention sexual orientation. Such an order would be divisive, he said.
But issuing no order at all would be a clear departure from past practice in a state with a complicated and emotionally charged history with racial discrimination.
The first governor to sign an order on the topic in 1973 was Republican A. Linwood Holton Jr., who held the executive office during the turmoil of school integration. Holton said last week that he thought his order, issued in his final year as governor, was an important symbol that Virginia was turning its back on its segregated past.
"It was a very significant statement," he said. "It represented a reversal of a long history in Virginia."
Holton, who is former governor Timothy M. Kaine's father-in-law and endorsed McDonnell's Democratic opponent for governor, declined to comment on McDonnell's actions.
McDonnell's actions are being followed closely by members of the General Assembly, where Democrats have proposed legislation to ban discrimination, including on the basis of sexual orientation.
Sen. A. Donald McEachin (D-Richmond), sponsor of one measure, said he hopes to have McDonnell's support, given that the governor has said repeatedly that extending legal protections to sexual orientation, which is not covered by federal statute, is a policy issue that must be addressed by the legislature. Ebbin has introduced a similar bill in the House.
The bill has narrowly cleared its first legislative hurdle, surviving an 8 to 7 committee vote in the Democratic-controlled Senate.
McDonnell's office sidestepped questions last week about his position on the bill.
Among its opponents is the conservative Family Foundation, which has been a major supporter of McDonnell's and twice named him its legislator of the year while he was in the House of Delegates.
Chris Freund, a spokesman for the group, said there is no evidence that gay state employees face workplace discrimination.
"It's a solution in search of a problem," he said. "Why do we need a law when no one has presented a problem?"
Freund said he would not oppose a law or order dealing with discrimination on other grounds because it would merely restate requirements found in federal law.
McEachin said state employees do still face discrimination.
"I don't believe discrimination is a thing of the past," he said. "And if it is, what harm would a law do?"
The full Senate will take up McEachin's measure this week, but it will almost certainly die in the GOP-led House of Delegates, which has voted against similar measures.