The election of Governor Bob McDonnell and Attorney General Ken Cuccinelli have made Virginia a pretty hostile place to be gay. Which is a feat for a state that was not exactly pro-gay to begin with. Gov. McDonnell kicked it off by removing discrimination protection in employment for state agencies, and AG Cuccinelli has taken things a step further by informing state colleges and universities that they are violating state law if the enact such policies on their own. The ACLU of VA is already challenging him on it (on grounds that I find terribly interesting because if they are right, they’d be invalidating both Cuccinelli and McDonnell’s actions and possibly effectively establishing a federal anti-discrimination policy for sexual orientation in the public sector), but I find Cuccinelli’s move to be extraordinarily disturbing.
Unlike McDonnell who simply regressed to no particular policy at all regarding sexual orientation, Cuccinelli is contending that NOT discriminating is a violation of state law. I’m intentionally ignoring here the distinction between written policy and observed but not written policy, but I’m doing to to make the point of why Cuccinelli’s action is so much more disturbing than McDonnell’s. I’m not suggesting that Cuccinelli’s letter could be enforced in this manner (if it’s enforceable at all which is questionable), but bear with me while I follow it to it’s theoretical end. One cannot legally prohibit NOT discriminating without simultaneously legally mandating discrimination. They are two sides of the same coin. If I can’t choose NOT to discriminate, then the only choice I have left is TO discriminate. If we ignore the distinction between written and simply followed policy, we’re left with a letter from the Attorney General that effectively makes it illegal for a state school to hire a gay person.
As I mentioned, obviously a school might choose not to discriminate despite the absence of a written policy, but I think prohibiting them from writing down the policies is a pretty clear shot at eliminating the policies altogether. The whole notion of setting up the law to explicitly prohibit the employment of certain groups of people strikes me as not simply “conservative” but a not so small step in the direction of social experimentation on the scale of eugenics.