McDonnell Walks Away From the Culture Wars

Gov. McDonnell's executive directive barring state discrimination against gays wisely kept his administration's focus where it should be: on restoring Virginia's economy.

Bob McDonnell's executive directive, which barred state discrimination against homosexuals, was meant mostly to shut up his attorney general, Ken Cuccinelli. The Cuccinellis of the world are increasingly finding themselves in a position like the lone Japanese soldier discovered in the 1970s, still waiting to fight for the Emperor's glory. The passion is there for a few dedicated believers, but the world has moved on.

McDonnell is no dummy. It defies logic to think that he does not, viscerally, side with his attorney general on the matter. McDonnell is a conservative Christian, attended Pat Robertson's university, and strongly opposes same-sex marriage. But the law and the culture, even in Virginia, are not on his side. He knows what his constituents want from him. His campaign trounced Creigh Deeds by nearly twenty points because it touted him as a "jobs governor." Jobs governors don't fight culture wars over homosexuality.

But what of the purported bombshell? McDonnell's reasoning in issuing the executive directive was that the 14th Amendment bars discrimination against homosexuals in matters of state. As Andrew Sullivan and others have pointed out: Isn't this the popular argument for the Supreme Court to legalize same-sex marriage?

This is instinctively compelling, but it seems to run into a brick wall upon further examination. Taking an entirely literal approach, marriage in forty-five states is between one man and one woman. It is not, legally speaking, between one heterosexual man and one heterosexual woman. A gay man and a straight woman can legally marry each other (and, I should add with a touch of irony, they frequently do). Marriage may culturally be based upon sexual orientation, but legally, that factor is irrelevant. This distinguishes it from employment discrimination, which is entirely dependent upon it.

Such a literal reading of the law probably won't carry water with most judges nowadays, who are interested in looking at the social ramifications of laws -- and are ever-weary of 'being on the wrong side of history.' But that's a separate question from its logical validity. (And, I should add: if your interpretation of the Constitution aligns perfectly with your personal political views, you're probably going about it the wrong way.)

Regardless, I don't think McDonnell was putting much thought into it. He seems more interested in putting out the fire and moving on -- which is exactly what is supposed to happen. Indeed, this is what the famous Federalist 10 told us should happen: the self-interest of the office-holder would mitigate the effects of faction, working for the 'common good.' In this case, that good is economic. The jobs governor is in charge, not the culture warrior in the attorney general's office. And that's a very good thing.