On Wednesday, Virginia Governor Bob McDonnell issued an executive directive telling state employees that they can be reprimanded or fired if they engage in discrimination on the basis of sexual orientation. This is a warning, but does not have the force of an executive order, which he might have employed.

The directive follows closely on the heels of an uproar caused by a letter sent by Attorney General Ken Cuccinelli, warning Virginia’s public universities that they could not adopt policies that prohibit discrimination on the basis of sexual orientation. Cuccinelli’s reasoning was that the General Assembly has not approved such a ban.

A.E. Dick Howard, professor of law at the University of Virginia and the author of the modern Virginia constitution, notes "This is a signal to state agencies and employees that [McDonnell] will take the position that discrimination on the basis of sexual orientation violates the federal constitution, that it violates the equal protection clause and that it would be grounds for sanction and perhaps dismissal .... But he's clearly avoiding issuing a document which adds to the corpus of substantive law."

McDonnell had already issued an executive order on discrimination in February that pointedly did not include reference to sexual orientation. McDonnell and Cuccinelli argued at that time that the categories to be protected must be defined by legislation. It is accepted that the General Assembly will not pass such legislation--Republicans have consistently blocked efforts to include this category, seeing it as a strong step toward legalization of same-sex marriage.

Following Wednesday's edict, Cuccinelli wrote that "I expect Virginia’s state employees to follow all state and federal anti-discrimination laws and will enforce Virginia’s laws to the fullest extent." Since the directive is not a law, the statement is unclear, and indicates a division between the AG and the Governor.

McDonnell is widely acknowledged to be a leading 'new face' on the national Republican scene, and while his directive will be seen as dangerously moderate by strong social conservatives, it sustains the image he portrayed throughout the election campaign as a pragmatic conservative. Cuccinelli is open about his extreme views on social issues, and will provide McDonnell the opportunity to appear moderate by comparison.

A specific benefit of his new stance may be the selection of Virginia by Northrop-Grumman Corp. for the new location of its national headquarters. They have said that the search has narrowed to a small number of sites in Northern Virginia and Maryland, and are quite sensitive to maintaining a high ranking as a 'good place to work.' On their corporate website they point out that [Northrop-Grumman] "received a score of 100% from the Human Rights Campaign for meeting key criteria in creating a work friendly environment for GLBT employees..... We believe that creating a work force and a workplace that values diversity and fosters inclusion is pivotal to promoting innovation and increasing productivity and profitability."

(Dave Sagarin, March 12, 2010)