State AGs v. state governors

Mon Apr 12 11:56:49 PDT 2010

            Well, there is more than one way for there to be a conflict, it seems to me.  The AG did say that public universities may not include sexual orientation as a prohibited basis in their antidiscrimination policies, http://www.washingtonpost.com/wp-srv/metro/Cuccinelli.pdf.  As I understand it, the governor's statement was that all state entities, including public universities, may not discriminate on the basis of sexual orientation, which presumably means that they should include sexual orientation as a prohibited basis in their antidiscrimination policies.  That strikes me as a conflict, though perhaps I'm mistaken.

            Eugene

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Nelson Lund
Sent: Monday, April 12, 2010 11:49 AM
Cc: CONLAWPROFS professors
Subject: Re: A musing

I do not believe that the A/G said that agencies are "supposed to discriminate on the basis of sexual orientation in hiring." If he did say that, I'm happy to be corrected.

Nelson Lund
George Mason

Ilya Somin wrote:

"Reversed" is perhaps a poor choice of words. Still, the bottom line is that the governor stated that his policy was that state agencies are not supposed to discriminate on the basis of sexual orientation in hiring, which conflicts with the AG's earlier letter.

Ilya Somin

Associate Professor of Law

Editor, Supreme Court Economic Review

George Mason University School of Law

3301 Fairfax Dr.

Arlington, VA 22201

ph: 703-993-8069

fax: 703-993-8202

e-mail: isomin at gmu.edu<mailto:isomin at gmu.edu>

Website: http://mason.gmu.edu/~isomin/

SSRN Page: http://ssrn.com/author=333339

________________________________

The A/G wrote an advice letter to several client agencies, which was based on what the A/G believes the law is. It was not a formal legal opinion, and the decision of at least one agency to make the letter public did not make it one. The advice was not "reversed" by the Governor, and I don't believe it could be.

Nelson Lund
George Mason

Ilya Somin wrote:

Actually, it was the state AG and not the governor who issued an opinion to that effect. A few days later, however, the governor reversed the AG and issued a statement saying that discrimination based on sexual orientation is forbidden throughout the state workforce (presumably including us and other state universities):

http://www.the-employment-lawyers.com/2010/03/12/virginia-governor-sexual-orientation-discrimination-will-not-be-tolerated/

http://www2.timesdispatch.com/rtd/news/state_regional/state_regional_govtpolitics/article/governor_urged_to_issue_anti-discrimination_bill/329477/

Ilya Somin

Associate Professor of Law

Editor, Supreme Court Economic Review

George Mason University School of Law

3301 Fairfax Dr.

Arlington, VA 22201

ph: 703-993-8069

fax: 703-993-8202

e-mail: isomin at gmu.edu<mailto:isomin at gmu.edu>

Website: http://mason.gmu.edu/~isomin/<http://mason.gmu.edu/%7Eisomin/>

SSRN Page: http://ssrn.com/author=333339

----- Original Message -----

From: "Curtis, Michael K." <curtismk at wfu.edu><mailto:curtismk at wfu.edu>

Date: Sunday, April 11, 2010 3:36 pm

Subject: RE: A musing

Sometimes (from my perspective) things go backward too.  I am not sure

exactly what happened in Va. re an executive order banning

discrimination in state employment based on sexual orientation,

but it

seems the Gov. and AG have effectively nullified it and the AG has

saidthat state universities cannot have policies against

discriminationbased on sexual orientation.  If anyone knows the

legal details, I would

be interested in a better understanding.

Michael Curtis

-----Original Message-----

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>

[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert

SheridanSent: Sunday, April 11, 2010 11:38 AM

To: CONLAWPROFS professors

Subject: A musing

Okay, why does Conlaw seem so difficult and strange?

We take it for granted that certain things are bad and should be

illegal, such as 14th (and 5th for federal) Amendment equal

protection

violations in light of the premise in the Declaration, admittedly

not

law but somehow more important, that all men are created equal.

So why

did it take so long to eliminate the exceptions for blacks, women,

gays

and so many others?  In hindsight, years later, the injustice

seems so

clear, doesn't it?

To take the most recent controversy first, Lawrence v. Texas, why

was it

so difficult to recognize equal rights for gays?  Why was it so

hard to

recognize equal rights for blacks?  And any disfavored minority as

to

whom the majority enjoyed, if that's the proper word, the power

and the

right to discriminate against, to lord it over, so much that the

practice was taken for granted, almost as a God-given natural

right not

subject to question, until questioned sufficiently?

In the case of discrimination against gays, those objecting to the

practice were either gay or deemed liberal.  Until lately,

referring to

Ted Olson and David Boies's representation in opposition to

California's

Prop. 8 anti-gay (marriage) initiative, few straight, relatively

conservative activists came out publicly in favor of gay rights.

To do

so was to be deemed a probable 'liberal,' a most politically

incorrect,

inconvenient label in many quarters.

Fifty years ago, coming out against discrimination against blacks

was

considered 'liberal' in the Hubert Humphrey sense.  Today we don't

think

opposition to discrimination against blacks to be 'liberal' but

mainstream and the discrimination plain wrong as well as illegal

and

immoral.  What happened?  Where did the shift occur?

Justice John Paul Stevens, in reference to his announcement the

other

day that he'll retire come end of term, has been quoted as saying

that

he thinks of himself as a conservative (appointed by Pres. Ford, a

Republican) and that each of his former colleagues has been

replaced by

someone more conservative.  Thus the Court has shifted to the

right, not

him.  Has Justice Stevens really become more 'liberal' as his

service

wore long?  First he favored the death penalty and then he

opposed.  Did

this make him liberal?  Or did his long service give him new eyes

to see

through ideology that no longer seemed real, or to work?  Is that

liberal?  Conservative?  Realistic?  It seems as though he'd

learned

what not to believe, my working definition of 'wisdom,' until

something

better occurs.

Now the talk is all of nominating a suitable candidate in

replacement of

Justice Stevens.  Does Pres. Obama look for a liberal?  Aren't

those

pretty scarce, these days?  Isn't an admitted liberal an automatic

disqualification for the position, a guaranteed filibuster?

What's the next closest thing to a disqualified liberal?  A

qualified

libertarian?  That is, a conservative who is so far right that

s/he's

coming around the other side?

The distinguishing feature of Stevens, imho, is his alleged growth

into

a person who has learned what not to believe.  Perhaps this makes

it

clearer for him to see certain things that now cause others, but

not

himself, to see him as a liberal when he is anything but.  He

opposed

indefinite secret detention of 'enemy combatants' at Guantanamo,

insisting that American notions of fairness and decency required

access

to federal court and a fair hearing.  Is this 'liberal?'  Or

protective

of deep conservative values on which the country was built, as it

was

equal protection if one is willing to overlook the notion that the

Founders didn't really believe in equal protection the way we do

today.

So, now back to the question of what makes Conlaw so difficult and

strange compared to some of the other, more routine legal

subjects.  In

order to escape the trap of continuing to engage in an unfair

process,

such as violations of equal protection or substantive due process,

one

must reach outside the vicious circle of the practice per se and

pull a

rabbit out of a hat, seemingly by magic.  By this I mean resorting

to

John Marshall's Big Axe, the power to show that the right  to

continue

the egregious practice no longer exists as a matter of

Constitutional

Law.  This is the hard, strange part, getting out of a long

accepted

practice by reaching deep into Conlaw for the solution, or to

continue

the cuttng analogy, for the blade to cut the Gordian knot of

seemingly

unending past practice.  It almost seems magical.  Are the

magicians who

accomplish such feats liberal?  Is Justice Scalia a liberal when

he

upholds jury power, upholds the right to confrontation not only

physically but in opposition to important hearsay use, as in

Crawford v.

Washington?

Perhaps our labels leave something to be desired as political

characterizations.  For Obama to nominate a liberal is to go

looking for

a fight with the political Right.  To look for a conservative is a

worse

fight, with his own base.  Perhaps he should look for a person who

has

shown some inclination not to believe a good deal of the

conventional

wisdom of either camp, liberal or conservative, someone willing to

figure things out anew for him/her/our sakes in light of basic

values.

Anyone else is bound to seem disappointing, would you disagree?

Perhaps it takes a long time for a justice to achieve the

confidence to

see things anew.  I'm thinking of Justice Harry Blackmun and his

refusal

to tinker any longer with the mechanism of death.  His authorship

of Roe

was not all that 'liberal' at the time.  He may have been

upholding

doctor's rights more than women's.  What about Earl Warren?  He'd

led a

long active legal and political life before becoming Chief Justice

and

leading the Brown v. Board decision in 1954.  Was he a liberal?

He was

a Republican who'd been an aggressive prosecutor and California

governor

(and attorney general) who had advocated in favor of the

American/Japanese internments on the West Coast after Pearl

Harbor.  He

was conservative then.  Impeach Earl Warren!  Too liberal when he

got on

the Court?  Or had he learned what not to believe, that separate

was

equal, and applied conservative values to debunk that?

Please, someone willing to question unquestioned beliefs.  Perhaps

this

disqualifies young ideologues, unlikely to change.  Perhaps I'm wrong.

rs

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