By Rosalind S. Helderman
Washington Post Staff Writer
Friday, March 12, 2010; B04
RICHMOND -- By issuing a directive prohibiting discrimination in the state workforce, Virginia Gov. Robert F. McDonnell this week sought middle ground on gay rights, opting for the pragmatic approach that characterized his campaign for office.
The executive directive telling state employees that they can be reprimanded or fired if they engage in discrimination on the basis of sexual orientation probably bolstered McDonnell's support in the higher education and business communities.
University and business leaders had been pressuring McDonnell (R) to squelch a national uproar over advice by Virginia Attorney General Ken Cuccinelli (R) to public colleges that they could not legally prohibit discrimination on the basis of sexual orientation, and they greeted McDonnell's announcement with enthusiasm.
McDonnell's action Wednesday received statements of support from several university presidents, including John Casteen of the University of Virginia, who said it represented a combination of "wisdom and bravery."
But McDonnell might have alienated social conservatives in his own party who see the directive as an endorsement of the idea that there is no sin in homosexuality, while failing to satisfy gay rights advocates, who note that it provides no legal protections for college students or employees.
"This is a balancing act -- he's got to worry about the tea party and the true believers, but he has to be acceptable to political independents," said Bob Witeck, a communications consultant who works with corporations on workplace issues and marketing strategies.
Executive directives are rare and new in Virginia. They were first issued during the administration of Gov. Mark R. Warner (D) as a way to lend weight to letters from the governor's office. Unlike executive orders, they are not legally binding.
McDonnell had already issued an executive order on discrimination in February that did not include reference to sexual orientation. Like Cuccinelli, he says that only the General Assembly can extend legal protections to gays. His position on legislation that would write protections into the code is ambiguous. He said this week that he would "consider" signing such a measure if it passed.
McDonnell maintained Wednesday that only the Assembly can give employees the ability to seek relief in state courts. But in his directive, McDonnell wrote that he thinks discrimination against gays is illegal under the U.S. Constitution, which courts have held prohibits discrimination on irrational grounds. And he said that state employees will face sanctions if they are found to have shown bias.
"This is a signal to state agencies and employees that he will take the position that discrimination on the basis of sexual orientation violates the federal constitution, that it violates the equal protection clause and that it would be grounds for sanction and perhaps dismissal," said A.E. Dick Howard, a professor of law at the University of Virginia and the author of the modern Virginia constitution. "But he's clearly avoiding issuing a document which adds to the corpus of substantive law."
For that reason, several gay rights advocates and some Democrats said Thursday that the directive accomplished little.
"What's really important to me is McDonnell took the easy way out," said Sarah Warbelow, state legislative director for the Human Rights Campaign. "It's meaningless. Directives do not carry the force of law."
Del. David L. Englin (D-Alexandria) called it the product of "national ambition and political necessity" for a governor who has been mentioned as a potential presidential or vice presidential candidate.
At the same time, the interpretation that discrimination against gays is irrational and violates the Constitution has angered some conservatives.
"I think this action is incredibly disappointing, to the point of being shocking," said Michael P. Farris, the chancellor of Patrick Henry College, a private Christian college in Loudoun County. "The deeper message it sends is that people who think homosexuality is a sin are wrong. They are irrational."
Farris, a lawyer and constitutional scholar who ran for lieutenant governor in 1993, said he thinks McDonnell's policy statement will be used in courts to help challenge Virginia's constitutional amendment banning gay marriage, which McDonnell supported. "I don't think the people advising him were doing anything other than reading polls," Farris said.