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View Diary: BREAKING - Gov. McDonnell separates from AG, issues order against discrimination (242 comments)

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  •  Thanks, Clark, I thought just the same, except.. (4+ / 0-)
    Recommended by:
    Xapulin, JVolvo, Clarknt67, svboston

    ...I read the decree as recited in the linked T-D piece and he never mentions sexual orientation anywhere.  He just says there must be no discimination of any kind and all personnel decisions must be based on qualifications and merit.  He's sidestepping it and intentionally being ambiguous.

    I initially thought, before I read the decree, that it's extraordinarily strange he's citing the U.S. Constitution equal protection clause when as far I've known (and yes, I'm a lawyer), sexual orientation has never been held covered by it.  But he's not actually saying that!

    A Republican blogger, at his blog "Too Conservative," posted on his blog a few days ago his own legal analysis (he's a 3rd-year law student) that state law explicitly gives institutions of higher education very broad authority over personnel and perhaps other internal matters.  He viewed that as a basis for Cuccinelli being wrong, and it was a credible argument.

    Of course as an experienced lawyer myself, it made me question, "what is he missing?  Often research like his ends up being half-ass, because there's more there he doesn't realize."  I figured either the blogger was missing something (e.g., case law limiting what that provision allows universities and colleges to do???), or Cuccinelli made an unsurprisingly (for him) stupid move by pushing a legal argument hoping no one would notice contrary legal authority.  Either was plausible.

    Now McDonnell comes in with a vague non-discrimination decree and also doesn't cite the state code provision granting broad authority to the colleges and universities.

    I'm tempted to research this stuff on my own, if and when I can make time!

    In a time of war, is that really the time to be asking whether we should be at war?...When it is over we should ask whether we should leave. -- Stephen Colbert

    by DCCyclone on Wed Mar 10, 2010 at 06:43:45 PM PST

    [ Parent ]

    •  And now a mea culpa, McDonnell DOES... (2+ / 0-)
      Recommended by:
      Xapulin, Virginia mom

      ...identify sexual orientation as a "protected class" in his decree.

      And, just as Clark said, McDonnell strangely cited the Equal Protection Clause.

      They're doin' some half-assed lawyering in both the A.G.'s office and the Governor's office in Richmond.

      I'm sad that these are my statewide elected officials.

      In a time of war, is that really the time to be asking whether we should be at war?...When it is over we should ask whether we should leave. -- Stephen Colbert

      by DCCyclone on Wed Mar 10, 2010 at 07:38:33 PM PST

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    •  But he IS saying that (2+ / 0-)
      Recommended by:
      Xapulin, svboston

      I initially thought, before I read the decree, that it's extraordinarily strange he's citing the U.S. Constitution equal protection clause when as far I've known (and yes, I'm a lawyer), sexual orientation has never been held covered by it.  But he's not actually saying that!

      Here:

      Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

      I guessing he's just a sloppy "lawyer," and doesn't know or care enough to research the facts of what he's talking about. It took me 10 minute to google up confirmation his claim was wrong, which I'm guessing is about ten more minutes than McDonnell's spent facting checking anything related to LGBT issues. (Why consult case law when the Bible's so much handier?)  

      @AlmightyGod Blasphemy is a victimless crime.

      by Scott Wooledge on Wed Mar 10, 2010 at 07:48:04 PM PST

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