Cucinnelli: Gays not covered by 14th amendment
In March, Virginia Attorney General Ken Cuccinelli proclaimed:
“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly…[Colleges should] take appropriate actions to bring their policies in conformance with the law and public policy of Virginia.”
On Friday, a bright high school student at Boys State asked:
“How is that not a violation of the equal protection clause of the 14th Amendment?”
Cuccinelli responded:
“Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment. There are judges who think these things ‘evolve,’ is the word they like to use.”
Judges like the U.S. Supreme Court, for example. Isn’t the Virginia Attorney General bound by Supreme Court precedent? Apparently not, according to Cuccinelli.
Join us on Facebook.
Follow us on Twitter.
June 29th, 2010 at 1:06 pm
First, you are confusing things a bit. Cuccinelli was asked his legal opinion on Virginia Law as it pertains to special protections for gays. As Virginia’s top lawyer, he offered his legal opinion. And he was correct on the matter of law.
Keep in mind his answer was a legal opinion, not a personal opinion. He was not asked to render a personal opinion. But some people decided that he must personally agree with the legal opinion or he would not have issued it.
We could make assumptions on his personal opinion, but they would only be assumptions. And they are irrelevant.
His opinion of the equal protection clause under the 14th amendment is entirely different. He was asked a hypothetical question with no underlying facts to consider. Just a blanket statement.
His statement that sexual orientation would never have been contemplated by the writers is an absolutely true statement. Sodomy or Buggery laws were on the books and homosexuality was considered a crime against nature at the time, just after the Civil War. It was not until the mid 20th century that these laws began changing. So, if you are saying that the writers of the 14th amendment considered protection of homosexuals under the equal protection clause, you are incorrect. It was a crime, in many places punishable by death, and never contemplated.
“There are judges who think these things ‘evolve,’ is the word they like to use.”
This is nothing more than saying that judges have ruled that the 14th amendment DOES apply to sexual orientation.
So, his answer was A) the writers of the amendment never considered sexual orientation to be covered by the equal protection clause, but B) some judges have ruled it does cover sexual orientation.
Those are the hard, cold facts without personal opinion and without judgment on Cuccinelli’s part – moral or otherwise.
It is a really good answer to unsettled law.
While some judges have ruled the 14th covers sexual orientation, others have ruled it does not.
Nowhere in Cuccinelli’s response that you presented does he say he does not believe the 14th amendment covers, or does not cover sexual orientation.
It is quite dishonest of you to state he claims otherwise.
And as a matter of law, it is incorrect to say the 14th amendment covers sexual orientation. There is plenty of case law by lower courts on both sides of the argument. So, until the Supreme Court rules that equal protection extends to sexual orientation – it does not.
The case of Lawrence v. Texas (1973) threw out Texas anti sodomy laws because they only applied to same sex couples. Theoretically, had Texas outlawed sodomy for ALL citizens, the law would have survived the challenge.
SCOTUS has only extended the equal protection clause to race and religion. They refused to give developmentally disabled persons protected status.
So, while it is true that sexual orientation cases have prevailed using the equal protection clause, they have also failed.
Which means that sexual orientation is neither covered nor denied by the 14th. In previous rulings the court has not expanded the protection beyond race and religion, it is unlikely that sexual orientation – a behavior – would become a protected class.
To be sure, one group may not be singled out for persecution without equally persecuting all. Sodomy for instance. But that cuts both ways. Neither should a group be singled out for special protection to the exclusion of others. That is also not equal protection.
This amendment was specifically geared to Reconstruction and passed to force southern states (mostly) to treat blacks the same as whites. It was extended to religion, but it does not single out one religion for special protection. It holds that all must be protected equally.
There is a reason the gay community has not pressed this issue under the 14th amendment at the Supreme Court level. The most likely outcome would be a ruling against them.
If the court ruled FOR sexual orientation as a special protected class, then the doors would be open for any group seeking special protection.
June 29th, 2010 at 3:43 pm
The “some judges” you refer to were the U.S. Supreme Court (Romer v. Evans, 1996).
June 29th, 2010 at 4:32 pm
No. That case was addressed in my first post, though not by name.
Colorado Amendment 2 singled out homosexual, bisexual and lesbians saying that that specific group could not be the benefactor of special legislation that protected that specific group.
You can’t do that. Now, had the Amendment prevented special protection from being enacted on ALL citizens, it would have passed muster.
You are guilty of making leaps in judicial logic that simply are not there. The fact that the court ruled that it is against the equal protection clause to single out gays and specifically prevent any law offering them special protected status does not mean that gays are entitled to special protected status. In fact, that case bolsters the argument that gays CANNOT be singled out for either protected status, or denial of protected status.
While Romer was indeed a victory for gays (and I use gays for the entire class), it does not mean that gays are entitled to special status. They are simply protected from being singled out for special persecution. We are all equal.
And like I said, if the law also included heterosexuals, it would have evenly applied to all citizens and passed muster under the equal protection clause.
What is granted to one class of people MUST be granted to all. What is denied to one class MUST be denied to all.
The only exceptions have been for race and religion, although these are not really exceptions. They are simply classes that may not be singled out, and have been specifically listed by SCOTUS for clarity.
Again, equal protection MUST apply to ALL. It is simply unconstitutional to grant special protection to ONLY one group.
In the eyes of the law, we are all the same. If Colorado were to pass a law saying people with blue eyes could not be the benefactor of any special protections, you can see that is totally unfair. And if such a law were deemed unconstitutional by SCOTUS, it would not mean that blue eyed people get special protection.
The court has even ruled that developmentally disable people are not entitled to special protection, as that violates the equal protection clause.
By the way, I think SCOTUS got Romer right.
But to try to use the 14th amendment, which guarantees EQUAL PROTECTION to obtain SPECIAL (hint UNequal) protection for gays is really not in the realm of reality.
Whatever is passed MUST BE equal. And if gays were granted special protection in one state, and it were found to be constitutional, then the Colorado amendment would have been constitutional as well. Because that would mean one group could be singled out for special protection OR special persecution.
That is not what we want, nor was it the intent of the 14th.
June 29th, 2010 at 6:22 pm
We made a mistake when we proceeded down the path of creating special protected classes of citizens. What our political “leaders” should be doing is eliminating the special class status and restoring everyone to being equal under the law.
It is Un-American to force some business to hire a hairy knuckled cross dresser who wants to be called Margaret, just as it is wrong to force a business a particular favored minority group. In order for America to become strong again, all facets of our society must be based on MERIT.
While I may not agree with Mr. Cucinnelli’s motives, removing special classes of citizens is the right approach to take. Otherwise, we should expect to see a steady stream of ever more bizarre sub-groups of our population demanding special protected status.
BTW, White Men remain, along with transsexuals, the two segments of society (as it is currently divided into groups) to be without any special status either at the state or federal level.
June 29th, 2010 at 6:44 pm
This post bespeaks such ignorance of the law and the role of advocates (which the Virginia Attorney General is), that it’s really not worth your time or effort to explain it, Tom.
“Don’t try to teach a pig to dance. It wastes your time, and annoys the pig.”
June 29th, 2010 at 7:27 pm
Since “gays” aren’t asking for special rights in any circumstances whatsoever, obviously, as Romer shows, LGBT citizens are protected by the equal protection clause also. Romer literally ruled basically that any laws that discriminate towards LGBT citizens are not necessary government wise. And any sexual orientation laws do not single out “gays”. No marriage laws for same-sex couples single out “gays”, since heterosexual couples can get married. No adoption laws, we can go further, single out “gays” for special protections, things heterosexuals do not already have, or wont be covered by. It’s like the hate crime law that was enacted late last year, which expanded the law to include sexual orientation. In fact, just yesterday the Supreme Court ruled against a Christian group of a public college in California that was looking to discriminate against LGBT citizens and still be funded by the school, and they found that the school violated the discrimination policies of the school and discrimination policies in general. It’s true, equal protection protects all, not just one single group or trait. Sexual orientation is not a behavior, it’s an immutable, enduring trait and so therefore, as gay/lesbian citizens and couples are now legal citizens, they are required the same rights under the law, as heterosexuals have.
Cucinnelli is right that the founders didn’t think of homosexuality when creating the law, as homosexuality itself was illegal. But now that has changed, and how the law is applied changes accordingly.
June 30th, 2010 at 4:24 am
I guess I don’t see how Cucinelli goes from saying that gays are not a protected class under the Fourteenth Amendment to saying that state agencies and organizations are PROHIBITED from protecting gays against discrimination.
Let’s see, there is no requirement against discrimination, so you are required to discriminate?
It seems like a fairly significant logical leap, with no support in the law.
Why can’t these organizations make up their own minds, free from interference from the Attorney General?
While we’re at it, why can’t these organizations conduct research, free from interference from the Attorney General?
June 30th, 2010 at 4:46 am
J. Tyler Ballance: White men over age 40 or with any disability are members of “protected classes,” and everybody is protected from discrimination “on the basis of” religion, sex, etc.
June 30th, 2010 at 4:50 am
Prohibitions against discrimination do not grant “special rights,” they only grant equal rights.
Cuccinelli’s interpretation of anti-discrimination law is factually untrue. The law does not “prohibit a college or university from including ’sexual orientation’…as a protected class within its non-discrimination policy.” Federal and state law prohibits employment discrimination on the basis of race, color, religion, sex, age, national origin, disability, and genetic information. Nothing in the law precludes anyone from exceeding those legal requirements. In fact, many local government and private businesses in Virginia prohibit employment discrimination on the basis of sexual orientation, and it is not illegal to do so.
Cuccinelli’s statement that “public policy of Virginia” prohibits it is also factually untrue. As a matter of public policy (established by two Executive Orders), discrimination on the basis of sexual orientation had been officially prohibited in state employment for the prior eight consecutive years.
Cuccinelli’s radical legal theory that state law supersedes the federal health reform law and that his interpretation of the 14th Amendment of the Constitution overrules the U.S. Supreme Court went out of style when Virginia rejoined the Union.
June 30th, 2010 at 5:36 am
Spotter and Tyler. You are both missing an important point concerning Cuccinelli.
Cuccinelli was asked by several state universities if special protection was given to gays in light of Governor McDonnell’s doing away with the executive orders of Kaine and Warner that prohibited discrimination based on sexual orientation. The question he was asked and which he answered was if the state prohibited discrimination due to sexual orientation in light of the executive orders being canceled. His legal opinion was that the state offered no special protection. HE was not asked, nor did he answer any other question, including the 14th amendment question.
When asked if the 14th amendment gave special protection based on sexual orientation, he answered that, according to the Supreme Court, no. Lower courts may have said it does, but lower courts have said it does not. That happens all the time. A definitive answer from the Supreme Court has not been issued.
What the Supreme Court HAS said is that one group may not be singled out for special special treatment. This type of action treats one segment of the population differently from another. What that ruling (Romer v. Evans) does NOT say or imply is that special protections for one group (gays) IS constitutional. In fact, just the opposite is true. When Warner and Kaine issued executive orders prohibiting discrimination based on sexual orientation, had those orders been brought before the Supreme Court, they would have been forced to declare that order unconstitutional, based on the Romer decision. And if McDonnell issued an executive order either granting or denying special protection, that too would be unconstitutional.
So, the equal protection clause prevents singling out one group of citizens and applying rules or laws differently because of their status. Rules favoring or disfavoring such group are unconstitutional.
Both the Lawrence and Romer cases involved laws passed which singled out gays and prohibited actions or activities or rules on one specific group – gays. The basis for the unconstitutional finding was not the fact that the target group were gays, but that the target group was not the general population. Both laws would have passed the equal rights test if they applied to ALL citizens.
While it is true there has not been a direct test case to rule specifically on the constitutionality of special protection for gays, the two cases cited here have already spoken on the constitutionality of singling out gays for special rules. The answer is, you can’t do it. The fact that the laws in question were “against” gays is irrelevant. What IS unconstitutional is applying laws differently to different classes of people. Granting special protected status only to gays is just as unconstitutional as denying special protected status to gays.
Another example. Let’s say a law was passed to force employers to pay employees without a High School Diploma 40% more because statistics “prove” those who did not finish High School earn 40% less. The law is trying to make things equal and fair. The argument before the Supreme Court would be that under the equal protection clause, the law was necessary so that high school dropouts could be equal.
But this sets up high school dropouts to be a special class. That is already unconstitutional. No matter how noble or just the law, if it’s intent applies only to a special class, that has been ruled unconstitutional. (There is already a similar SCOTUS case involving developmentally disable people.)
The law is blind, if properly enacted. The court must strip away the emotional, yet irrelevant aspects of a case. The fact that the group in question is gay, learning disabled or high school dropouts, and whether the law allows or denies special protection to said group is irrelevant. Once the irrelevant portions are stripped away, what is left is the question “Is is constitutional to single out a segment of society for different treatment under the equal protection clause of the 14th amendment?”.
In each and every case, the answer has been that singling out ANY group for different treatment violates the equal protection clause.
June 30th, 2010 at 6:02 am
James Young said:
“This post bespeaks such ignorance of the law and the role of advocates (which the Virginia Attorney General is), that it’s really not worth your time or effort to explain it, Tom.”
As an attorney, James, you understand these issues. I am not an attorney, but spent 7 years involved in a civil case and, in order to save money, I did all of the research and Shepardizing. I read thousands of cases and researched case law. The opposing attorneys were lying scumbags and the judge was lazy, so he accepted anything the opposing attorneys offered as truth unless we proved it false.
We had rulings go against us that almost made my head explode. But I learned that the law has it’s own rules, and it’s own logic.
David and some of the others posting here obviously are not capable – or not willing – to look at this issue without an emotional taint. “flyboy” is so off base legally I agree, people like that are not worth responding to. He has so many incorrect views on the law and seems absolutely unwilling to consider any version of reality but his own. My lengthy responses set his absurd comments right.
Now, I really believe that flyboy, and perhaps David (and others) really have no interest in what these rulings actually say. I feel their interest is not in understanding the court rulings, but are simply interested in bashing Cuccinelli and this post was simply an excuse.
June 30th, 2010 at 7:23 am
I have addressed the issues of federal and state anti-discrimination law and public policy previously.
Virginia Attorney General Cuccinelli went well beyond providing his “legal opinion was that the state offered no special protection” (which everyone is already aware of). He actually said the law “prohibits” a college or university from instituting such a non-discrimination policy, which is patently false. Nothing in Virginia law “prohibits” colleges and universities from expanding their anti-discrimination policies.
Tom White seems to be claiming that any law prohibiting discrimination on the basis of sexual orientation would be unconstitutional.
If it was true, as he says, that “the equal protection clause prevents singling out one group of citizens and applying rules or laws differently because of their status. Rules favoring or disfavoring such group are unconstitutional,” then any “protected class” would be unconstitutional and the Supreme Court would have struck down all anti-discrimination laws. The Supreme Court has repeatedly upheld anti-discrimination laws. Protection against employment discrimination (whether on the basis of race, sex, religion, or sexual orientation) is not a “special privilege,” it is “equal protection under the law.”
J. Tyler Ballance says: “We made a mistake when we proceeded down the path of creating special protected classes of citizens.” That would place him in opposition to the Civil Rights Act, ADEA and ADA.
Specifically, regarding the applicability of Romer v. Evans (1996):
Also “repealed, and now forbidden, are ‘various provisions prohibiting discrimination based on sexual orientation at state colleges.’ Plaintiffs included government employees challenging the rescission of existing government anti-discrimination policies, arguing that it would “subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation.”
That certainly resembles the current situation. Virginia colleges and universities instituted policies banning employment discrimination based on sexual orientation years ago, and Cuccinelli ordered them to be rescinded.
In Romer v. Evans, the U.S. Supreme Court ruled (6-3) that rescinding Colarado’s anti-discrimination policies violated the 14th Amendment’s equal protection clause:
Non-discrimination in employment is not a “special privilege,” it is “equal protection under the law.”
June 30th, 2010 at 10:11 am
David, I suppose you just are unable to grasp this concept of law.
The premise “If something is wrong, then it’s opposite must be right” does not apply.
When you say:
“Not being discriminated against is not a special privilege, it is equal protection under the law.” You are correct. But under the 14th amendment, it is not wrong because discrimination is wrong. It is wrong because it identifies one class of people as an exception to equal protection. The facts surrounding the case are irrelevant. The court cannot consider whether a law is discriminatory under the 14th. The only fact is that one group was held separate from another. Not equal.
Gays may not be singled out by a law that applies some requirements on them to do, or not do something. If the law applies to ALL, the it is OK under the 14th.
The Texas sodomy law applied only to males. It was unconstitutional because it made a special case out of gay sex. Had it applied to all, it would be constitutional under equal protection.
Same in Colorado. If they redo the law so that it prohibits special protection of everyone, that would be OK.
These rulings have nothing to do with sexual orientation or discrimination. The cases were strictly decided based on one class having separate rules.
So, if a state decided to pass a law that prohibits discrimination of straight people seeking employment at gay bars, under equal protection, it is unconstitutional. Now that does not mean gay bars can refuse to hire straights.
By the same token, if a law is passed that prohibits discrimination in hiring because of one’s sexual orientation, that is also unconstitutional under the 14th because it singles out one class of people. But that does not mean you can discriminate.
What the 14th amendment DOES say is that any law must apply to ALL. You may not pick and choose no matter what.
So, when you look at some of our anti-discriminatory laws on the books, such as laws against age discrimination, how can that be constitutional under the 14th? It is because it does not give over 40’s special status, it simply says they must be treated the same as everyone else.
Now, in Romer, the law went beyond equal protection and denied minority status, quotas, protected status and claims of discrimination ONLY TO GAYS! This is one of the most blatant denials of equal protection I have ever seen.
So, what protections does the GLBT community have under the 14th? Answer: the same rights as applied to all. Evenly.
At some point, I assume a case will reach the Supreme Court where a law grants special protection based on Sexual Orientation. We already know that the court has spoken on granting special status to single out gays as an exception to everyone else for something negative to gays. The court has said it was this “singling out” that was the problem. Not the fact that the action was negative to gays. That does not enter into the decision.
One must also deduct that singling out gays for something favorable towards them would be equally unconstitutional, as the court does not consider the face that the law is favorable or unfavorable to the party. Just that they were singled out.
So, does the 14th amendment protect gays from being singled out to receive treatment that discriminates based on their behavior? Yes. the Texas case.
Does the 14th protect gays from being singled out to be specifically denied certain protections? Absolutely. The Colorado Amendment. But keep in mind that this ruling does not address the specific protections that were denied, nor does it grant those protections because it was overturned.
And the big question, does the 14th offer special protection to gays, or forbid discrimination based on sexual orientation? Absent any specific ruling, it does not. In order to offer protection under the 14th, a special class would have to be created and allowed to have different rules from others. The settled law on the 14th would seem to prohibit such a special class.
And what if the Supreme Court decided to allow Sexual Orientation as a special exception under the 14th? Is that a precedent and precursor to pave the way for discrimination for any class imaginable? A special Tattooed class? Would I be forced to hire a receptionist who has a swastika tattooed on her forehead? A mute to answer my phones? A mentally disabled person to do my bookkeeping? Or would a daycare center be forced to hire a member of Nambla? Or child predators, (an immutable, enduring trait, right)?
That is the door that would be opened. I don’t see that happening under the 14th.
Now, for the record, I do not discriminate based on sexual orientation, and will not do business with anyone that does. I believe in personal freedom and personal responsibility. One’s choice of sexual partners is as irrelevant to me as what TV shows you watch or what you had for dinner. I am simply not interested. We are all equal under the law, and we all have a right to be treated the same.
If a business refuses to hire someone because the are gay, let the world know. That is what blogs are for. I personally believe homosexuality to be morally wrong, but I will defend anyone’s right to practice such behavior.
We are guaranteed life, liberty and the pursuit of happiness. As long as your rights do not deny me my rights, we are cool. If pursuing someone of the same sex makes you happy, by all means. My moral beliefs are in place for one purpose – to guide my life. Not yours. You have the right to your own beliefs and morals.
The intent of my comments are not to express agreement or disagreement with issues of sexual orientation, merely to offer my perspective on the laws as they apply.
I also hope that you can understand that as far as Ken Cuccinelli’s opinions on this issue, the engineer in him allows a personal detachment from his legal opinions and his personal beliefs, or opinions. When he says the 14th amendment offers no specific protection for gays as a class, that is true. The 14th protects us all from being treated differently.
And one thing to keep in mind with Ken, if you ask him for a legal opinion, he answers that question without regards to his personal opinion. Engineer, remember.
If you want to know his personal feelings or beliefs on an issue, ask him. It drives me nuts to see all these lefty blogs take a legal opinion Ken releases and somehow think it is his personal agenda, or beliefs.
I have spent hours talking to Ken Cuccinelli. He is unlike any politician or lawyer I have ever met. He is honest and there is not a deceptive bone in his body, in my opinion. When he says something, there is no spin, just fact. I think that may be what gets him in trouble. If he learned to BS and spin, like most politicians, he could talk for hours and not say a thing, like most of his peers. It is his “matter of fact” honesty that is the problem. You assume he has a hidden agenda. He does not. There is nothing covert about him.
Make no mistake, he believes the constitution means EXACTLY what it says and his agenda is 180 degrees away from you progressives. But he will tell you straight up what he is doing and why.
You don’t subscribe to the founders concept of a limited Federal government, I get that. You want to bend and twist the Constitution to fit your far left beliefs. I get that, too. You “have it in” for Cuccinelli because he scares the hell out of you, and he has planted himself firmly on the side of states rights and the Constitution. I really get that.
But the fact remains, the Supreme Court deals in settled law. They view the 14th as settled and as long as the makeup of the court stays as it is, Cuccinelli will win most of the cases he has filed.
I have attempted to give you some hard, cold facts. I ask that you take your emotions out of the mix and look at the law in the same light the Supreme Court will. And does. If you want to believe the 14th amendment has created a special protected class for sexual orientation, go ahead. You are absolutely wrong, but go ahead.
What I have written is without spin and without any agenda.
June 30th, 2010 at 10:35 am
In fact, 21 states and more than 140 cities and counties (including some in Virginia) have already enacted laws prohibiting employment discrimination on the basis of sexual orientation. The proposed national ENDA law incorporates language similar to that of Title VII of the Civil Rights Act of 1964, which has consistently been upheld by the courts.
When you look at some of our anti-discriminatory laws on the books, such as laws against sexual orientation discrimination, how can that be constitutional under the 14th? It is because it does not give gays special status, it simply says they must be treated the same as everyone else.
Prohibiting discrimination on the basis of sexual orientation merely requires employers to treat all job applicants and employees equally, regardless of whether they are gay or straight. It does not “single out” one class of people for favorable treatment or “special privileges.” It only requires equal protection under the law, exactly like all the other anti-discrimination laws.
June 30th, 2010 at 12:44 pm
Tom White “I personally believe homosexuality is morally wrong.”
When someone says this statement, and falsely believes sexual orientation is moral or immoral, then you know you are talking to someone with a biased position, and unwilling to look at facts.
People like Tom actually think equal rights for same-sex oriented individuals is special rights. They actually don’t think gay/lesbian people deserve equal rights. That’s the premise of what is being said, by both Tom and Ken, whose opinions of gay/lesbian people is definitely known.
David is perfectly right in his assessment of the 14th amendment. In fact:
http://www.episcopalcafe.com/lead/sexuality/scotus_gays_and_lesbians_are_a.html
There is SCOTUS precedent showing sexual orientation is a protected class, a ruling just on Monday further illustrating that to be true.
June 30th, 2010 at 1:08 pm
David; I think you are still missing the point. Your post title states – Cucinnelli: Gays not covered by 14th amendment.
Gays are NOT singled out as a special class in any SCOTUS case based on the 14th amendment. Period. Can’t happen.
You are intentionally misleading people with such a title. Gays are not covered by the 14th amendment as a special class.
Everyone is covered by the 14th amendment.
The Cuccinelli statement said:
“public policy of the Commonwealth of Virginia prohibit a college or university from including ’sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly”
“as a protected class” is the operative phrase. Cuccinelli is clearly speaking to the creation of a protected class, prohibited by the 14th.
Your statement:
It does not “single out” one class of people for favorable treatment or “special privileges.”
is a different argument altogether.
Cuccinelli’s statement does not preclude the inclusion of “sexual orientation” in a school’s policy. It is his opinion that is is not permissible under Va. policy to create a “special class”. He also believes the 14th amendment prohibits granting special status to any group.
The phrase “sexual orientation” when used as an inclusive term for ALL people will pass muster under the Constitution’s 14th. What will not pass muster is the enumeration of a specific class of those protected. If the law or rule states “sexual orientation” and it applies to every person, it is fine under the 14th. If it defines “sexual orientation” as “lesbian, gay, bisexual and transgender faculty, students, administrators and staff” to the exclusion of all other sexual orientations, it is unconstitutional.
The current non-discrimination policy of VCU, for instance, sets up and enumerates “lesbian, gay, bisexual and transgender faculty, students, administrators and staff” as the specific target of the policy. This is clearly unconstitutional under the 14th. Straight people are omitted, as are various other sexual orientation classifications. If VCU were to strike that line, and leave it at sexual orientation – period – it would be fine. But most of these go the extra mile and make it unconstitutional by specifying the members of the class.
Your statement that they are NOT setting up a special class is simply not true in the real world. VCU has definitely specified the protected class.
http://www.news.vcu.edu/news/VCU_Board_of_Visitors_Reaffirms_Nondiscrimination_Policy
If Cuccinelli were to take this to court, I have no doubt he would win. But the volume of the whining from the left has been sufficient that your temper tantrums now preclude the AG from taking this to the Supreme Court.
But when you say the goal is simply equality, not a special class, that is clearly a lie.
For an example of a policy that includes sexual orientation in a constitutional way, look to University of Richmond. Here is an example of a discrimination policy done right.
http://undergraduatecatalog.richmond.edu/general/non-discrimination.html
June 30th, 2010 at 1:32 pm
flyboy;
You seem to believe that it is fine to disrespect my beliefs and proceed to belittle me as if you know me. I said everyone has the right to the pursuit of happiness. If being gay floats your boat, go for it.
I specifically said I do not project my morality on others. It is mine and mine alone. I have not attacked you personally, presumed to know your beliefs, or condemned anyone for being gay, or anything else. I have hired lesbians at my business, though I can’t say I have hired a gay. I own an office type business and honestly, in this field, have only had one or two males apply. None made it to the interview stage.
When I say I believe homosexuality is immoral, that is what I believe. I am not judging or condemning, I was brought up in the church, even considered becoming a minister, and that is simply a core belief. I also believe gambling to be immoral, as well as drinking alcohol. Yet I try to get to Vegas once a year, and if you want to find me, I will be drinking a Rum and Coke at a Blackjack table.
I also believe drugs are immoral, yet I went to VCU in the 70’s and played in long haired rock bands. You may draw conclusions on my conduct then, and would probably not guess half of what I did. And I absolutely believed it was immoral.
Now, there are a number of things I believe are immoral that I have never done, like the aforementioned homosexuality and cheating on my wife of 27 years.
But I do believe your personal attacks on me are uncalled for. You may disagree with what I write, but those statements are very intolerant. Something you mistakenly accuse me of being.
Reasonable people can disagree, but there is never a call for personal attacks.
June 30th, 2010 at 2:57 pm
According to Tom, “The premise ‘If something is wrong, then it’s opposite must be right’ does not apply.”
Exactly. So just because the law does not necessarily create “special” rights for gay people, there is nothing to PROHIBIT state or local governments or organizations such as universities from recognizing the EQUAL rights of gay people.
Thanks, David Campbell, for an intelligent and accurate discussion of the current state of the law.
June 30th, 2010 at 5:21 pm
Tom White: Thank you for participating in the discussion.
You are certainly free to “believe that homosexuality is immoral.” It is admirable that, despite that belief, you are tolerant enough that you “do not discriminate based on sexual orientation, and will not do business with anyone that does.”
Unfortunately, many others do “project their morality on others” and discriminate on that basis. That is why laws are needed to prohibit employment discrimination and to ensure equal protection under the law.
June 30th, 2010 at 5:22 pm
Spotter: Thank you for the complement. I haven’t been getting too many of those around here lately. You always have a home here.
July 1st, 2010 at 8:22 am
[...] our Attoney General Ken Cuccinelli doesn’t believe LGBT people are citizens covered by the 14th Amendment, and would probably sue if Congress tried to tell Virginia to [...]
July 1st, 2010 at 1:49 pm
I recently noted that up in Maine an employee of Denny’s is suing the company for violating Maine’s anti-discrimination law because the restaurant’s manager told him he must use the men’s restroom and not the women’s. He still has all of the plumbing of a male but thinks that because he dresses like a woman he is entitled to use the women’s restroom. The manager had been receiving complaints from patrons; evidently the employee didn’t do a very good job of portraying himself as a woman because others using the restroom could tell he was a man.
While I could support much of what ENDA seeks to accomplish I am against the protections it would give to cross dressers. If it would be illegal for an employer to insist trans gender men must use the men’s restroom (please note I am not talking about trans sexuals) then I believe such people would in fact receive special and unwarranted protection.
Perhaps up in Maine they can settle things by passing a law that requires three separate restrooms. On the left is the men’s, on the right the women’s, in the middle would be the one with the question mark on the door for the trans genders.
July 2nd, 2010 at 6:41 am
Why the obsession with pottys? Don’t the restrooms have private stalls?
July 14th, 2010 at 6:37 pm
David,
OK, then why do we have separate restrooms at all? Perhaps you do not see a need for the separation but if so I would imagine you are in the extreme minority in society on that. No I know of no study that supports this, it is only my impression, but I would be willing to make a small wager that if such a study was conducted the results would show my impression to be correct.
Also I think it is less of an obsession then it is social etiquette and the Denny’s employee is insisting he be allowed to defy etiquette.