As a gay man, I find the very concept of barring such anti-discrimination policies offensive. However, before we really get the bandwagon rolling, what say we ask a couple of questions:
1) What have past Virginia AG's advised cities, towns, and political subdivisions regarding non-discrimination policy generally and LGBT affecting law specifically? What was their reasoning? What is Cucinelli's?
2) Do, in fact, any provisions exist in Virginia statute or state constitutional provision that a competent attorney would be compelled to advise his client (the Universities and colleges) that such a policy (and thus they) are in violation of, or potentially might reasonably to be argued to be in violation of?
3) Given the increasing evidence that at least some portions of the "Global Warming" theory are based on spurious or manufactured evidence (without addressing in any way whether or not anthropogenic global warming valid as a theory or in any way a verifiable phenomenon), is it not the duty of a sitting AG when the question is raised about whether the science and research paid for on the public dime might be fraudulent, to then investigate such questions - and if a preponderance of evidence shows that fraud was committed on the public dime, is it then not the duty of said Attorney General to prosecute the perpetrator of the fraud and misuse of state funds to the full extent of the law?
(For the newbs, in most instances this would mean an affirmative answer to : Did Mann knowingly publish false or misleading results? If so, were state funds used in producing/creating/obtaining such false data?)
4) Aside from Cucinelli as a common factor does the University policy issue have anything to do with the rightness or wrongness of the investigation of Mann and his global warming work?
To address our first question,
we have but to look at Cucinelli's advisory letter itself
. He cites a number of relevant prior Virginia Attorney Generals opinions, yet notably fails to cite either constitutional or statutory provision - instead basing his reasoning on the theory that unless it is specifically permitted, that a University or other subordinate political division (from governor to rural village) may not extend or expand civil rights beyond those enumerated by the Virginia General Assembly, a body that as recently as a few weeks ago (and on 26 other occasions) has declined with varying degrees of vehemence to add sexual orientation or expression to the list of protected classes (i.e., list of things forbidden to discriminate based upon).
The actions or lack thereof of the Virginia General Assembly, notwithstanding the opinions of the current and several prior Attorney Generals of the State of Virginia, are simply irrelevant. Our fundamental legal tradition is not
"whatever is not specifically permitted, is forbidden" - rather, it is "whatever is not specifically forbidden, is permitted" which undermines a basic argument of Cucinelli and his predecessors.
Further, as demonstrated in a long line of prior cases, subordinate political divisions may extend MORE
civil rights protections, but never less than those extended by their respective superior bodies, subject to the provisions of the prior paragraph.
Since the Virginia General Assembly has, to the best of my knowledge, never barred subordinate bodies from extending such protections to allege such a bar is mistaken at best, and in my opinion, malicious bigotry at worst.
To address our second question
, I return to the reasoning addressed in the first. Any competent attorney would, given the opportunity, to cite clear statutory law would do so - as it would substantially strengthen their legal argument. I find the absence of such citation telling, to put it mildly and the "public policy" argument weak on the face of it. If public policy barred any action not specifically authorized by the Assembly, the various bodies and subordinate bodies would be paralyzed between legislative sessions and require constant legislative guidance.
Clearly, this is not the case. Cucinelli himself cites, in the fourth paragraph of his letter, the broad authority of Universities and Colleges to do "that which is needful" to provide for the education, safety, and welfare of students. Inarguably, allowing either favoritism towards or discrimination against faculty, students, or staff of the relevant institutions based upon their non-criminal sexual orientation or expression does not enhance the safety, welfare, or educational prospects of the students whose interests the various regents are responsible to protect.
Again, Cucinelli and his predecessors appear to stray from both common legal practice and logic when they advise their clients to refrain from enacting policies prohibiting discrimination based on lawful behavior and may, in fact, place their clients at risk of both federal and state litigation. Neither Cucinelli or his predecessors appear deserving of plaudits or rewards in their conduct in issuing such opinions. I would personally favor reprimands administered either the Virginia State Bar or the voters of the State of Virginia, or both to those still among the breathing.
Moving on to our third question
, if Cucinelli or his staff are presented with reasonable cause (and at that point, little more than curiosity is required) to suspect that state funds were used for fraudulent purposes or to perpetrate a fraud, they have an obligation
to investigate to the best of their ability whether such acts have taken place, and if in the face of the evidence produced by their investigation they then reasonably believe that such fraud occurred and that they have a reasonably chance of satisfying a court and jury of such, they then have an obligation to prosecute
unless they can reasonably argue that such a prosecution would be contrary to the interests of the State of Virginia. An investigation of Mann seems reasonable; only time and the eventual filing (or not) of charges will demonstrate whether such an investigation was justified, specifically if those charges are affirmed before a judge and jury resulting in conviction(s).
Addressing our final question
, whether or not the two issues are reasonably related as the poster implies, the answer is relatively obvious - No. The issues of LGBT Discrimination Policies and Scientific Fraud paid for with state funds are fundamentally separate from each other and the poster in question is simply engaging in an ad hominem attack - alleging that because Cucinelli did one thing that he and others (including myself) might find bad, that all things Cucinelli does are bad per se, and then goes on to engage in high-brow name-calling by referring to Cucinelli as a known espouser of conservative views.
Now, as a gay man and a conservative (Libertarian variant, small "l") myself, I suspect I and many others on Slashdot do not find "conservative" the epithet that the poster intends. The emotive ranting of those on the right or the left bears little resemblance to reason, and merits only scathing contempt - with extra helpings of vitriol when it descends into ad hominem and name calling. Happily, Slashdot posters are usually logic and fact based and avoid such foolishness. Regrettably, in this instance, a poster failed to evade that painfully obvious intellectual trap.
I am not an attorney, and do not under any circumstances pretend to be one. No person should rely on the above as legal advice, consulting a licensed attorney qualified to practice in the relevant state(s). The above represents only my opinion and not that of any other person or organization.