Do Gay Virginians Have Cause to Give Thanks?

For gay and lesbian Virginians, the election results earlier this month must have seemed dismal. Not only did Maine voters overturn a state law granting marriage rights to homo sexual couples -- making Maine the 31st state to enact such a prohibition by referendum -- Virginians elected a governor and attorney general with fervently conservative leanings on social issues.

In his now-infamous thesis, Gov.-elect Bob McDonnell denounced "the perverted notion of liberty that each individual should be able to live out his sexual life in any way he chooses without interference from the state." (During the campaign, he effectively portrayed the thesis as ancient history.) Attorney General-elect Ken Cuccinnelli made his views plain during this fall's campaign, when he said this: "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."

Understandably, the gay community might be tempted to think November represented two giant steps backward for equality. But that might be taking too dark a view.

For one thing, McDonnell's election does not necessarily represent a radical change at the Executive Mansion. During the 2005 campaign, Gov. Tim Kaine said "gays and lesbians should be protected from discrimination." But Kaine -- like McDonnell, a devout Catholic -- also opposed same-sex marriage, civil unions, and adoption by gay couples.

Shortly after taking office, Kaine reiterated an executive order Gov. Mark Warner issued near the end of his term expanding the prohibition on discrimination in state employment to cover sexual orientation. McDonnell opposed it -- but on narrow constitutional grounds, arguing that such a policy change properly fell under the purview of the legislature. What's more, in a later (2007) opinion, McDonnell held that UVa could permit the same-sex partners of students and employees to join the school's gym.

This year, in response to questions from the gay-rights group Equality Virginia, McDonnell wrote that it was his "firm belief that government should not discriminate based on . . . sexual orientation." He also stipulated, concerning his opinion about Kaine's executive order, that "the issue is not the merits of the Governor's policy . . . ." Lawyerly evasion -- or a subtle hint?

Here are some other tea leaves worth pondering -- some of them courtesy of a friend with a strong interest in the issue:

Although both Creigh Deeds and Steve Shannon voted for Virginia's marriage amendment as it moved through the General Assembly, they both opposed its passage when it reached the referendum stage. Deeds actively sought Equality Virginia's support this year, and Shannon pounced on Cuccinelli's comments about homosexual behavior.

Contrast that with the tenor four years ago, when Henrico Del. Brad Marrs wrote a fundraising letter trying to make hay out of the fact that one of his opponent's campaign donors was homosexual. Marrs clearly thought that gay-bashing would redound to his advantage. The ploy blew up in his face, and Marrs lost his seat. Few Virginia politicians today would make the same mistake. Even Cuccinelli was careful to differentiate between homosexual acts and homosexual persons.

(Few, but not none: In Lynchburg, the GOP denounced Del. Shannon Valentine for taking campaign donations from Equality Virginia, terming the issue a "test of integrity." Valentine's Republican opponent, riding a wave of support from Liberty University, edged to victory.)

Now consider a different letter -- from David Lampo, of the Log Cabin Republican Club of Virginia, and other gay Republicans to the GLBT community last last month. While acknowledging that McDonnell is not exactly a champion of gay rights, it noted, inter alia, his UVa gym ruling and his support for legislation establishing hospital visitation rights for domestic partners.

"McDonnell has repeatedly and without equivocation said that government should not discriminate in employment or services based on sexual orientation. No other Republican candidate for statewide office has ever done that," the letter said. It predicted that, should he win, "McDonnell will be a Governor with whom the GLBT community can work."

We'll see -- and here's one way to put that thesis to the test.

Virginia law currently prevents private companies from offering group life insurance to same-sex partners. That's absurd. Republicans opposed to collectivized health care at the federal level all agree: The government shouldn't tell private companies what coverage they may and may not offer.

Although the state has removed similar restrictions on health insurance, bills to remove such restrictions on life-insurance policies have died in the General Assembly. Perhaps they could pass in the upcoming session -- if McDonnell lent his support.

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 .