June 2, 2010 | by Chris Johnson
Va. high court rejects gay man’s appeal

The Virginia Supreme Court has denied a gay man’s effort to obtain restitution after he allegedly was forced to resign from his job at a state museum because of his sexual orientation.

In a two-paragraph notice issued May 17, the state’s high court said it wouldn’t hear the case of Michael Moore v. Virginia Museum of Natural History because there’s nothing in the situation the justice system could rectify.

“Upon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of opinion there is no reversible error in the judgment complained of,” the notice states. “Accordingly, the court refuses the petition for appeal.”

The notice says that Justice Williams Mims took no part in considering the case.

Last month’s petition denial is the result of a process that began when Moore allegedly was forced to resign his position as public relations associate at the Virginia Museum of Natural History in Martinsville, Va., in November 2006 because of his sexual orientation.

On appeal to Virginia’s high court, Moore also contended his dismissal violated his rights under the U.S. Constitution providing for freedom of religion and equal protection.

Moore, who has since moved to Lakeland, Fla., and is now preparing for law school, said the court decision was disappointing but not unexpected.

“We’ve been dealt blows all along, so I was kind of pessimistic going into it,” he said. “Them having to decide either for me or against me would have just required sweeping change. It should have been the reason they made a decision and they didn’t, so I’m disappointed actually.”

Moore said he plans to appeal the decision to the U.S. Supreme Court based on violation of rights in the U.S. Constitution. He noted that he has 90 days from when Virginia’s high court issued its notice to appeal the case.

In his case, Moore has said his supervisor discovered he was gay and asked him shortly thereafter to resign, even though he was rewarded with satisfactory marks after completing a performance review.

Following his firing, Moore filed a complaint first within the state government and later with the courts based on an executive order from former Gov. Tim Kaine (D) prohibiting job bias against gay employees in the state and public workforce.

But the administration wasn’t able to find restitution for Moore, and the courts have said the executive order didn’t provide a legal basis by which the courts could take action.

Claire Guthrie Gastanaga, general counsel for Equality Virginia, said the failure of the Virginia Supreme Court to take up the case shows the need for the passage of state legislation that would help protect LGBT Virginians against workplace discrimination.

“The bottom line is this decision just demonstrates what we’ve held for years — that LGBT employees don’t have any meaningful law to seek redress for discrimination, and frankly, they don’t have any cause of action under the old executive order, either,” she said.

When he took office this year, Republican Gov. Bob McDonnell didn’t renew the executive order for workplace protection against gays and instead replaced it with a less forceful executive directive.

Gastanaga said if there weren’t any meaningful protections under Kaine’s order, “there really, really isn’t any protection now” under McDonnell’s directive.

Greg Nevins, supervising senior staff attorney for Lambda Legal, called the Virginia Supreme Court case decision “a disappointing result” and said the reasoning for the court’s rejection “isn’t completely clear.”

Still, he said LGBT people have some workplace protections because the U.S. Constitution grants them some rights.

“It doesn’t mean that public employees in Virginia don’t have recourse for discrimination,” he said. “The Equal Protection Clause of the U.S. Constitution does protect state workers from arbitrary discrimination that’s based on sexual orientation.”

Nevins said many courts have found that the Equal Protection Clause protects LGBT people against discrimination in the public workplace, although a U.S. district court in Virginia hasn’t made such a ruling.

“A whole bunch of different courts around the country have said it,” he said. “I don’t really think it’s controversial.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

8 Comments
  • Sweet justice.

  • The Governor and the AG should be confronted by this case as an example that sexual orientation protection is needed and is not “special rights.” God, I hate this f_cking state.

  • One of the things you have to realize about living here in Virginia is the inherent backwardness. There are far too many conservative Republicans in Virginia and they are bent on continuing their discrimination well into the next century. As the rest of the country moves forward, (with the exceptions of a few other backward states) Virginia is marching backwards in time. Just look at our religious-right Governor and loonie tunes Attorney general.

  • The only thing that keeps Virginia from being a 100% podunk state is Northern VA. And that is not saying much.

  • Are you surprised? When I was in law school, on those rare occasions when we studied Virginia cases at all, we did so primarily to see how backward and arbitrary a state court system could be. To learn the law, we studied cases from other states and the federal court system.

  • ONCE AGAIN VIRGINIA LIVES UP TO IT’S STATE MOTTO:

    “VIRGINIA, THE STATE OF HATE!”

  • What a sad thing that this can still happen in this country. I was fired from a managerial job in 1983 when my (new) boss invited me to have dinner with his family and a “young woman” he thought I’d be interested in. I turned him down flat, a few days later, he told me my work was not up to par and I would be let go. When I offered to improve my performance, he wouldn’t hear of it. That’s when I realized what was really happening.
    It took ten years in Maryland and then the powerful assistance of then-governor Glendenning to get our non-discrimination act. Virginia gays will just have to keep fighting unless we get a Federal ENDA. That may be the only hope for many states.

  • Where’s ENDA dammit! If it was the law, this case wouldn’t be an issue!

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