While the American religious right continues to thump an empty drum beat that marriage is about reproduction instead of love, the rest of the world moves forward. Today, the Republic of Ireland has become the first nation on Earth to amend its constitution by vote of its people, to grant the right to marry to all its citizens, regardless of whom they love, or the physical gender of that person.
Scouts for Equality is reporting that Boy Scouts of America’s president, Robert Gates, is calling on his organization to drop its ban on gay adults within scouting. Specifically, noting the trend within both courts and legislatures to prohibit anti-gay discrimination, former CIA-director Gates, said, “The Status Quo in Our Movement’s Membership Standards Cannot Be Sustained.” This represents a major shift in policy at the top of the BSA, as Gates himself had declared in 2013 that he would not bring the issue up again for at least two years. But, in an address to scouting leaders he made today, Gates declared that further delay in adapting BSA’s policy to the current state of the law risked being forced to do so by court order, something he said could undermine the organization.
This seemed inevitable, given the national trend. But, in the age of the internet, when the full text of a statement is available with a click, the most remarkable part of Gates’s proclamation may not be the fact that the Boy Scouts are on the verge of adopting equality, but the reason they are doing so. Referring explicitly to their religious freedom, President Gates pointed out that 70% of Scout troops are sponsored by churches. He called on the BSA to, “at all costs,” preserve those churches’ freedom to, “establish leadership standards consistent with their faith.” At first read, that sounds like his call to drop the ban would be of little real significance, as he might simply be moving the source of the ban from the BSA, which is not a religious institution, to those sponsoring churches, which might be able to continue the ban under the free-exercise clause of the First Amendment. However, reading on, there is this minor bombshell:
As a movement, we find ourselves with a policy more than a few of our church sponsors reject – thus placing scouting between a boy and his church.
Always, the BSA has relied on its commitment to godliness in defense of its ban. The very first thing a Scout swears he will do by his oath is his, “duty to God.” Now, finally, the BSA realizes the ban isn’t something it must impose in order for a Scout to keep to his oath; it is something they must abolish, because of his oath.
Some folks may not realize the importance of this announcement, because they will focus on the abolition of the ban, presuming that the reason was a kowtow to public pressure, or fear of litigation. But its importance arises from the fact that Gates realized that the BSA’s most basic principle, recognition of a scout’s duty to God, would collide with many scouts’ own religious beliefs if the ban were to be continued. This means Gates’s announcement is not a declaration of defeat, nor of surrender. It is one of continued commitment to his organization’s own ideals.
The fact that it was churches showing the way of equality to the Boy Scouts of America, rather than barring the BSA from it, is nothing short of miraculous.
Delegate Bob Marshall (R-13) has one of the worst cases of lawyer-envy in Virginia history. He can’t stop himself from citing legal precedent in failed attempts to support his opposition to equality. This time, he’s upset that school boards all over the state are realizing that Title IX requires them to accommodate transgender students, and some of them are doing so. In an effort to stop it, he has sent out a long e-mail that, among other things, mistates Dillon’s Rule, which limits the powers of local governments. According to Marshall:
The Dillon rule says that no locality has any authority not granted to them by the General Assembly.
This is simply not true. As the United States Supreme Court actually puts it, Dillon’s Rule sets forth three different sources of authority for local government:
Those granted in express words;
Those necessarily or fairly implied in or incident to the powers expressly granted; and
Those essential to the declared objects and purposes of the local government, not simply convenient, but indispensable.
That last one is key, here. Every state government in the United States declares its objects and purposes in its constitution (pause for a moment, and think about what the word “constitution” means, and you’ll understand where I’m going with this). For that matter, every state government in the United States is also bound to objects and purposes declared in the constitution of the United States. Among other things, that’s why government officers at every level, including county boards of supervisors, school boards, and state delegates (this means you, Mr. Marshall) all swear in their oaths of office to uphold and defend the constitution of the United States and the constitution of Virginia. Doing so is not “simply convenient.” It is indispensable. Local government could no more ignore its duty to, say, provide for the due process of law, than it could ignore its duty to provide for public education. Those things are required of local government by the constitutions of the United States and of Virginia.
Likewise, the constitution of the United States imposes this duty on every state:
No State shall…deny to any person within its jurisdiction the equal protection of the laws.
Marshall wants to violate that duty by denying equal protection to transgender Virginians. To make that seem legal, he tells this lie:
[T]he Virginia Supreme Court in 2000 [Supreme Court of Virginia ARLINGTON COUNTY, et al. vs. Andrew WHITE, at al. Record NQ. 991374, April 21, 2000. 707, 528 S.E.2d 706 (2000)] affirmed the 1997 formal opinion I received from Attorney General Richard Cullen that Arlington could not add “domestic partners” to the classes of recipients eligible for health insurance coverage provided by Arlington County.
While the Virginia supremes did issue that ruling, the lie is that this means equal protection is not mandated for transgender Virginians. Marshall’s citation goes to “domestic partners,” which is not a protected class of citizens. As we are seeing more recently, being transgender is fast becoming a recognized class entitled to constitutional protection. (More recently, the Virginia supremes showed that they are aware that legal analysis under the Equal Protection clause and under Dillon’s Rule are two thoroughly different things. See ADVANCED TOWING COMPANY, LLC, et al. v. FAIRFAX COUNTY BOARD OF SUPERVISORS, 694 S.E.2d 621 2010.) In other words, Marshall’s citation is irrelevant.
Marshall also goes on at some length about how some Attorneys General opined that local governments in Virginia did not have the authority to do what they are (and have been) doing, claiming this proves that current AG Mark Herring’s recent opinion that they do have that authority is invalid. But he’s picking and choosing his facts. While Marshall complains that Gloucester and Stafford counties tried to deliver equality, and that Fairfax county plans to follow suit, he ignores the fact that, five years ago, Loudoun county did the same thing (albeit in the county workplace, not the schools). I remember that pretty well, because I wrote the new policy that we adopted, on a 6-2-1 vote. Here’s the important bit: Marshall went nuts and expressed the same opinion he’s expressing now, that what we did by abiding our oaths of office and upholding the constitution was illegal. Like now, he claimed that the opinions of Virginia Attroneys General, such as Ken Cuccinelli, were on his side. Well, Mr. Marshall can have Ken Cuccinelli. We went with the constitution.
But, here’s a little-known fact from that era: when I heard that AG Cuccinelli opposed what we did, I wrote to him. I said that, if he objected and felt that the rights of the Commonwealth had been offended by what my board had done, I saw it as appropriate that he, as the Commonwealth’s lawyer, should take my board to court and sue to undo our vote. I told him that I would be pleased to defend my board myself in such a case. AG Cuccinelli declined to take me up on it. In fact, he never answered me at all.
Bob Marshall thinks what Mr. Cuccinelli said in the past speaks more forcefully than what Mr. Herring is saying today. To my mind though, it will always be what Mr. Cuccinelli didn’t say in the past (that he thought he could win this issue against me in court) that speaks most forcefully of all.
While others are doing their best to ruin the lives of nine-year-olds, some folks are trying to help them grow up safely and with compassion. One of those is Fairfax school board member Ryan McElveen:
He’s the force behind the push to extend Fairfax schools’ existing anti-discrimination policy (which already protects everyone equally from discrimination based on sexual orientation) so that it protects everyone equally from discrimination based on gender identity. What he’s doing is not only laudable, it’s a reminder that, while we wait for our General Assembly to grow up and join the rest of us, there is more to government than what goes on in Richmond (an acute point, given what some of our delegates have had to say about this particular issue). We may not be able to pass any old law we want to at the county level (and a good thing, that), but the constitution still applies, even in a Dillon state like ours. Along those lines, I sent Ryan the note below:
Dear Mr. McElveen,
Five years ago, when I was a member of the Loudoun county board of
supervisors, I proposed an addition to the county's policy documents that
would forbid discrimination by county personnel based on sexual orientation
or gender identity. My proposal passed on a 6-2-1 vote.
Before passage, the proposal provoked the same tiresome "bathroom"
arguments, and a number of related nonsensical objections, that always
arise when equality for members of the LGBT community looms. However,
despite dire predictions that fairness in the workplace would lead to
predatory creeps terrorizing patrons of The Ladies Room, I believe the
reported number of such incidents continues to stand at zero.
I hope your proposal to extend equality in Fairfax schools to transgender
staff and students will pass. Please ignore the intrusions from Delegate
Marshall and Delegate LaRock. Mr. Marshall has no Fairfax precincts. He
used to have some Loudoun precincts, before redistricting, so, to some
extent, his presence in the house of delegates is our fault. Mr. LaRock,
with most of his constituents living in Loudoun today, is undeniably our
responsibility. I know them both and can tell you their brand of Tea will
not sell well in most of Fairfax.
AG Herring has weighed in and declared what you have proposed to be
constitutional in Virginia. For what it is worth, I agree. When we passed
our non-discrimination policy here, the sitting AG held the opposite
opinion. However, what all opponents have overlooked is that, even in a
Dillon state like ours, power to enforce the United States constitution is
inherent in every office of government, while the option to violate the
United States constitution is not available to any office of government. In
my view, that alone authorized the guarantee of equal protection that my
board passed, and yours seeks to enlarge.
Please keep up the fight. Reason is winning, because of people like you.
He replied the next day, saying he does expect the measure to pass. Final vote will be May 7. Looking forward to another step towards adulthood, not only for our kids in school, but for their government, as well.