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Gov.
Timothy Kaine and several editorial writers owe
Attorney General Robert McDonnell an apology for
making for their exceptionally harsh and unjustified
attacks on him. McDonnell’s sin: publishing a
legal opinion saying that Kaine exceeded his
authority in issuing an executive order that changed
the Commonwealth’s nondiscrimination policy to
include sexual orientation as a protected status.
Attacks of this kind raise the temperature without
shedding light on the legal issue involved.
Any
attorney general is entitled to a presumption that
he is interpreting the law in good faith as he sees
it. Instead, Kaine and the editorial writers in
question launched into attacks on McDonnell’s
motives and legal acumen, while mischaracterizing
his legal opinion.
A
careful look at the McDonnell opinion and his
detractors’ arguments (such as they are)
demonstrates whose analysis is “flimsy,” to
borrow Kaine’s language. McDonnell proceeded from
the unassailable proposition that the General
Assembly, not the Governor, has the constitutional
authority to make laws and establish the policies of
the Commonwealth.
The
Virginia Constitution gives the Governor the
responsibility and authority to see that the laws
are faithfully executed. The Supreme Court has said
that the Governor exercises no implied power, but
only those granted him by the Constitution and
statutes. The Governor may not issue an executive
order that creates a legal right or imposes a duty
beyond what the Constitution and statutes have
declared.
A
state statute confers on the Governor the power to
set the policies of the executive branch. I know
that statute well because I drafted it in 1975. It
merely gives the Governor the authority to resolve
conflicts among agencies and to issue administrative
directives that implement the language of the
Constitution and laws of the Commonwealth and the
United States — not to make new laws or policies,
no matter how laudable they might be.
Kaine’s
executive order adds sexual orientation to a list of
categories that are assured special legal
protection. The General Assembly has repeatedly
declined to extend such special protection to sexual
orientation.
As
a lawyer, Kaine should know that the Virginia
Supreme Court ruled in 1977 that local school boards
have no authority to enter into collective
bargaining agreements where the General Assembly had
repeatedly refused to enact a statute granting such
power. The issue of whether sexual orientation
should be given protected status under the law has
been a matter of debate for some time, but the
General Assembly has consistently declined to extend
protected status to cover it.
Instead
of purporting to create a new right and to establish
new state policy, Kaine’s executive order could
have been narrowly worded to limit its reach to the
manner in which executive agencies handle
recruitment and hiring on a day-to-day basis to
minimize the likelihood that discrimination based on
sexual orientation would occur. The method he chose,
however, was obviously confrontational. It was not
limited to the executive branch, but covered “all
facets of state government.” It also was not
limited to state employees, but extended to state
procurement contracts with outside vendors.
According
to numerous polls, most Virginians oppose the notion
of having to accept the marriages of same-sex
partners performed in another state. Kaine’s
executive order, if allowed to stand, will weaken
the position of the Commonwealth in future
litigation if it opposes the recognition of a
same-sex marriage performed in another state.
Whether
Virginia continues the policy of not granting
protected legal status to homosexuals and not
recognizing same-sex marriages should be left to
members of the General Assembly. That’s all that
McDonnell’s opinion says, regardless of how Kaine
and those editorial writers try to distort it.
–
March 20, 2006
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