Hinkle: There's Nothing Funny About This Cucci Coup

As anyone who read his 20-year-old thesis at Regent University knows, it's not easy to get to the right of Virginia Gov. Bob McDonnell, particularly on social issues. But Attorney General Ken Cuccinelli is giving it his best shot.

Having taken a jab at the EPA's recent finding on carbon dioxide, he is now windmilling into the issue of gay rights. Cuccinelli recently sent a letter to the state's colleges and universities directing them to rescind their policies forbidding discrimination on the basis of sexual orientation. The schools lack the proper authority to enact such policies, he says.

This seems to imply colleges are forbidden to do anything they are not explicitly required or authorized to do. Which is odd. Colleges do a great many things not specifically spelled out in the Code of Virginia or the state Constitution.

For example, neither of those documents directs colleges and universities to maintain football teams. Neither of them even authorizes football teams. Schools apparently have been running renegade athletic programs for decades now, without so much as a by-your-leave. Can we expect a cease-and-desist letter from Cuccinelli to UVa, Virginia Tech, et al. directing them to padlock their stadiums and shut down their pigskin programs? Don't sit on a hot stove waiting.

In fact, the State Code gives boards of visitors wide latitude over how to run their demesnes.

For instance, the language regarding the College of William and Mary stipulates that "the Board . . . shall make all needful rules and regulations concerning the colleges, and generally direct the affairs of the colleges."

Here's the language for UVa:

"The board shall . . . appoint a president . . . who shall have supreme administrative direction under the authority of the board over all the schools, colleges, and branches of the University wherever located . . . .They may . . . generally, in respect to the government and management of the University, make such regulations as they may deem expedient, not being contrary to law."

And here's the language governing Christopher Newport University:

"The board shall . . . make all needful rules and regulations concerning the University; . . . and generally direct the affairs of the University."

None of that means colleges and universities can violate state or federal law, or the state or federal constitution. They cannot, as Virginia Tech recently tried to do, stomp all over the First Amendment rights of student publications in order to impose politically correct standards of public discourse. They can't ignore the Freedom of Information Act, or raise money by selling heroin. But surely they can do some things they are not told to do.

What's more, as Rebecca Glenberg of the Virginia ACLU notes, a raft of court cases from Romer v. Evans onward makes it illegal to discriminate on the basis of sexual orientation. So policies directing university personnel to abide by federal precedent would seem prudent.

Cuccinelli can make a plausible-sounding case as to why none of the above holds water. His letter to the colleges cites a 1982 opinion by then-Attorney General Gerald Baliles that Fairfax lacked the authority to "enlarge upon the definitions of the protected class of persons." Cuccinelli isn't simply making things up out of thin air. Still, it is very easy to come up with rationalizations to justify one's biases, and to think of reasons as to why rebuttals to those rationalizations don't withstand scrutiny. (I do it myself all the time.)

In Cuccinelli's case, the biases are visceral and vehement. Asked last fall about discrimination on the basis of sexual orientation, he replied: "My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They're intrinsically wrong. And I think in a natural-law-based country it's appropriate to have policies that reflect that . . . .They don't comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society."

OK, we get it: Gay sex is icky. Lots of folks feel that way -- although plenty of them are able to recognize that as long as they aren't being asked to join in, it's none of their affair, and as long as the participants are consenting adults, it's none of the state's business, either. Small-government conservatives, for instance, tend to take precisely that approach. Or should.

True, Cuccinelli hasn't exactly suggested gays and lesbians ought to be rounded up in detention camps. But launching a first strike against policies meant to protect them from discrimination does suggest they belong to an inferior subgroup. Even Bob McDonnell, whose thesis railed against "fornicators," didn't go that far.

Cuccinelli certainly isn't required to share the policy preferences of his governor or his predecessor, whatever they might happen to be. By picking this fight, the AG is showing (as if there were much doubt) he is his own man, and he will stick fast to his principles regardless of what others think. That's an admirable trait -- one sorely lacking in many office-holders who are little more than human wind-socks. What a shame he couldn't exercise his resolve in pursuit of a more noble crusade.

The spirit of liberty is the spirit which is not too sure that it is right.

--Judge Learned Hand.

Contact A. Barton Hinkle at (804) 649-6627 or bhinkle@timesdispatch.com.