LGBT Social Movements Cause Obama Administration to Shift Policy on Gay Rights

Attorney General Eric Holder has concluded that Section 3 of the Defense of Marriage Act violates the Constitution. This is a complete reversal of DOJ's position regarding DOMA. Although President Obama campaigned on a promise to seek the repeal of DOMA, DOJ has defended the statute in recent litigation.

Even more important than his conclusion that Section 3 violates the Constitution, Holder also argues that courts should apply "heightened scrutiny" to classifications based on sexual orientation. This also represents a reversal from recent DOJ arguments. When courts apply heightened scrutiny, they are less deferential to governmental justifications for discrimination. This standard could potentially invalidate numerous laws that discriminate against gays and lesbians.

Social Movements

It is important to note the role that social movement activity has played in causing this shift in policy. LGBT groups have been the most vocal in their criticism of policy choices by the Obama administration. I previously have written on this subject.

Social movements are essential to social change. While many liberal organization -- particularly, traditional civil rights groups -- have never publicly criticized the Obama administration, LGBT group have demanded better results and swifter action in a host of areas. Apparently, their advocacy has paid off.

It remains unlikely that race-based civil rights groups will pressure the Obama administration to take more progressive stances on issues relevant to poor persons of color. So long as most persons of color remain highly supportive of Obama, these groups have will have no incentive to demand more substantive justice. Pity.

Virginia Governor Reverses Himself and Attorney General on Anti-Gay Discrimination

Virginia Governor Bob McDonnell has reversed himself and Attorney General Ken Cuccinelli on anti-gay discrimination. Last week, Cuccinelli sent a letter to public colleges and universities in Virginia demanding that they rescind policies the prohibit discrimination on the basis of sexual orientation. This letter led to public outcry.

Today, Governor McDonnell signed an executive directive that prohibits state workers from discriminating on the basis of sexual orientation in state agencies. The executive directive appears to reverse Cuccinelli's position.

Although McDonnell's two Democratic predecessors -- Mark Warner and Tim Kaine -- issued executive orders that prohibited sexual orientation discrimination by state workers, McDonnell, a Republican, initially balked at the idea and refused to do so. McDonnell, however, has changed course amidst a chorus of protests responding to Cuccinelli's letter. Apparently, political activism can still effectuate change.

UPDATE: Governor McDonnell signed an "executive directive," not an "executive order." Rachel Maddow has stated that an executive directive has no legal force (unlike an executive order). I have not found any Virginia authority to support this claim, although now many liberal bloggers have run with it as an accurate statement of Virginia law.

UPDATE II: The Washington Post reports that an executive directive has legal force, but it may not empower individuals to seek relief in courts. It is unclear, however, whether an executive order could authorize lawsuits for sexual orientation discrimination. Typically, legislation -- not executive action -- empowers people to sue. The Virginia legislature has declined to add sexual orientation to existing civil rights legislation. Therefore, an exectuvie order that included sexual orientation might not create a cause of action for a civil suit. Accordingly, the distinction between an executive order and executive directive is possibly just a matter of semantics -- not law.

Virginia Attorney General Wants State Colleges and University to Rescind GLBT-Inclusive Policies

Virginia Attorney General Ken Cucinelli, II appears determined to move the state backwards. Cucinelli has sent a letter to all of the public colleges and universities in Virginia urging them to rescind policies that prohibit discrimination on the basis of sexual orientation and gender identity.

Cucinelli argues that only the Virginia legislature can implement these policies, which it has not done. The issue, however, is probably one that a court would have two decide, if school officials reject Cucinelli's demand.

In 1996 decision Romer v. Evans, the Supreme Court invalidated a Colorado constitutional amendment that rescinded and banned the implementation of laws and policies that protected gays and lesbians from discrimination. Cucinelli's demand letter arguably violates the principle articulated in Romer. That decision, however, does not decide which state entity in Virginia has the authority to implement nondiscriminatory policies. So, there are some issues that require a deeper analysis.

Nonetheless, two things are definitely clear. First, revoking the policies would negatively impact the schools' national reputations and probably cause them to lose some of the brightest and most talented students and professors. Second, some accrediting bodies (e.g., the Association of American Law Schools) require that member schools implement nondiscrimination policies that include sexual orientation as a protected category. Thus, it is unclear whether the schools can repeal the policies and maintain good academic standing.