Advisory opinion motivated by ideology, not law or practice, says ACLU

Richmond , VA – The ACLU of Virginia today denounced an advisory opinion issued by Attorney General Robert McDonnell in which he concludes that the Governor’s executive order protecting gays and lesbians against discrimination in state employment is unconstitutional.
Executive Order No. 1 was revised by Governor Mark Warner in December 2005, adding sexual orientation to the list of protected classes under the state’s non-discrimination policy. Prior to Warner’s revision, Order No. 1 prohibited discrimination only on the basis of race, sex, color, national origin, religion, age, political affiliation, and disability.
Three weeks ago, in one of his first official acts, Governor Tim Kaine reissued Executive Order No. 1 using the same language as Warner.
McDonnell’s opinion, which was published earlier today, claims that Virginia governors may issue executive orders to ensure that existing state policies are properly implemented, but not to institute new policies. Because Virginia has no laws explicitly protecting gays and lesbians from discrimination, McDonnell argues, the Governor does not have the authority to create such protections.
“As the person in charge of all state personnel, the Governor has not only the authority but also the obligation to see to it that the state’s employment system is fair and just,” said ACLU of Virginia executive director Kent Willis.
“Most certainly the Governor may not violate state law with an executive order, but the very essence and tradition of such orders is to fill in the missing gaps where no state law exists.”
“What an inauspicious beginning for Robert McDonnell as Attorney General,” added Willis. “This would be like an Attorney General in 1960 saying that that an executive order against race discrimination was unconstitutional because there were no civil rights laws.”
Del. Robert Marshall, a longtime opponent of gay and lesbian rights, sought the opinion from the Attorney General.

Contact: Kent Willis, Executive Director, ACLU of Virginia, 804/644-8022

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