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.