Overall reaction to Ken Cuccinelli’s recent letter to schools asking them to remove “sexual orientation” as a class protected from discrimination has been one of outrage.
One paper called it a “step backwards” for Virginia. James Callahan Jr., a former Republican state senator currently sitting on the Board of Visitors at George Mason University, even called his statement “reprehensible.”
The letter from Cuccinelli, attorney general of Virginia, asserts that public state colleges and universities are subject to the Code of Virginia, which does not recognize sexual orientation as a protected class. He argues that state schools have usurped Virginia law and do not have the authority to recognize these classifications.
The frustrating thing about his argument is that it’s legally sound and backed up with precedents set by past Supreme Court of Virginia decisions. Since the issue was first brought to the Virginia General Assembly in 1997, the legislature has voted against amending the human rights clause 25 times. That’s over two times a year.
Cuccinelli’s letter was not stating anything new, but rather affirming the state’s authority over its institutions of higher learning. Therefore, the claim that our state has taken a step backwards is wrong, since Virginia hasn’t taken any initial steps forward to begin with.
In his letter, he asks the reader to “consider this letter as the opinion and advice of the Office of the Attorney General.” As opinion, this letter carries no legal weight, and Cuccinelli knows it is unenforceable.
To win an election in Virginia, you must attract the most moderate voters. However, to win in the primary, you must maintain the support of your base. If Cuccinelli faces a primary challenge from the right, he could lose his party’s nomination and be unable to run for re-election as a Republican.
To avoid this dilemma, from time to time he will have to do things to appease his conservative base. This letter is one of them. He understands that the colleges won’t listen to his opinion, and he can do nothing to enforce this law. His intention was merely to make a gesture to conservatives.
Contrary to this firestorm of criticism, Cuccinelli’s letter is probably one of the best things to happen to Virginia’s gay community. In this most recent state legislative session, two bills, which defined sexual orientation and proposed to include it in the Human Rights Act of the Code of Virginia, were struck down. House bill HB 1287 was killed in committee and Senate bill SB 66 was voted down on the floor of the Virginia General Assembly.
Whether Cuccinelli meant to or not, his letter has brought this issue to the citizen’s attention. When the legislature can see the outrage over it, they will be under enormous pressure to pass the next bill prohibiting discrimination based on sexual orientation.
In a roundabout way, this letter has the potential to make everybody happy. In sending it, he can remain loyal to the conservative base. But it has also raised awareness over the injustice of the law (or lack thereof).
As awareness is raised, more people will pressure their legislators to include sexual orientation in the Code of Virginia’s Human Rights Act. If it is included, Virginia will have then made the first step forward on the issue of gay rights. Eventually, this will help to open the doors for the legalization of gay marriage and other issues relevant to the gay community.
If we want to send Cuccinelli a message of outrage and anger over his comments, we would have the most effect by writing to our local state legislators and asking them to pass a bill adding sexual orientation to the Human Rights Act.
If such a bill were to pass, Cuccinelli’s legal opinion will be made moot, the schools will be in adherence to the Code of Virginia and the gay community would be handed a potentially significant human rights victory.
A complete list of legislators and their e-mail addresses can be found online at http://legis.state.va.us/