"Making Sense of Immigration" .. Homework for the 2011 General Assembly Session

The fall 2010 issue of Virginia Issues and Answers: A Public Policy Forum published by Virginia Tech is now on the “newsstands” and online. In the issue are two perspectives on state policy issues related to immigration written by me and Jack Martin, the director of special projects at the Federation for American Immigration Reform (FAIR). Neither Mr. Martin nor I had the opportunity to see each other’s submission before publication, and, now, having read his submission, several points are worth making.

Virginia already has more than 40 laws on the books dealing with immigration related issues, and has led the nation in addressing the issue of unauthorized immigration at the state and local level.

Accordingly, I conclude my article, titled “Making Sense of Immigration: Keeping State and Federal Roles in Balance,” with the following:

Most of the 40 laws now on the books were said to be needed to keep Virginians safe, reduce costs or improve the ability and authority of law enforcement to combat gang activity, drug trafficking, and terrorism. None of these programs has yet been proven to be effective. Some have, however, been shown to affect adversely working people and their families who have committed no crimes. No further legislative action should be taken unless and until the laws now in place have been shown to be inadequate to address any discernable adverse impacts of unauthorized immigration on Virginians. To do otherwise is simply to continue making political points at the expense of human rights and dignity.

After seven years of going over and over the same ground, including election year 2007 in which over 130 pieces of immigrant-related legislation were introduced, I believe those who will ask the 2011 Virginia General Assembly to enact additional laws (and take valuable legislative time to replay failed arguments from the past) have a high standard of proof to meet when it comes to showing why more legislation is needed or will be effective and why its benefits outweigh its costs (both financial and social). Mr. Martin’s piece, entitled “Why Immigration is an Issue for Virginia Lawmakers” doesn’t do that.

Let’s start with the fact that Mr. Martin repeats FAIR’s oft-cited shibboleth about the 9/11 terrorists that seeks to inflame deep-seated fears by conflating terrorism and immigration and tying 9/11 to the “illegal immigration” debate. It is true that seven of the 9/11 terrorists had Virginia driver’s licenses and may have used them as identification to board airplanes. It is also true that, after 9/11, Virginia led the nation by enacting a legal presence requirement in 2003 to bar anyone in the country without authority from getting a Virginia driver’s license or ID. What Mr. Martin doesn’t point out, however, is that every one of the terrorists had entered the country legally and almost all (except possibly three) were still in the country legally. The immigration status of these evil men had nothing to do with their evil purpose nor their access to licenses. They did commit fraud to obtain the licenses; they were in the country legally but not residing in Virginia, as required. However, since Virginia law continues to allow anyone who can show that he or she is in the country legally to get a Virginia driver’s license for the duration of their authorized stay, the reality is that similarly-situated evil-doers would still be able to get Virginia licenses and ID’s today if they were able to establish (truthfully or fraudulently) that they were living in Virginia.

Mr. Martin then goes on to recount FAIR’s disputed “facts” about the “impact of illegal immigration” to bolster his otherwise unsupported argument that “combating illegal immigration is an important and legitimate interest for states.” The impacts of immigration (legal and illegal) are much debated, as testimony before the House of Representatives by Mayor Bloomberg and others shows. For Virginia-specific data, read the report of The Commonwealth Institute on Tax Contributions of Undocumented Immigrants.

Relying on FAIR’s time-worn rhetorical flourishes, Mr. Martin makes no specific recommendations for additional changes he thinks are needed in Virginia law (beyond the 40 laws already on the books), but simply exhorts lawmakers to “do more” to “exercise their authority to discourage illegal immigration.”

Mr. Martin does not say how current Virginia law is inadequate to meet his stated objective of getting “illegal immigrants” to leave Virginia. Data released recently by the Pew Hispanic Center show that the number of unauthorized immigrants in Virginia fell 65% between 2008 and 2009, one of the highest percentage declines in the country during the same period. If Mr. Martin’s real objective is to encourage a reduction of unauthorized migration to Virginia, this data would appear to show that Virginia’s efforts to date are working.

Before we add to the growing fear and distrust among immigrant community members and growing hostility toward new Virginians among our residents, by replaying old “us” vs. “them” arguments, I hope the members of the General Assembly will take a deep breath and ask Mr. Martin and his allies: “what exactly is it that you want us to do, what will it cost for us to do it, and why should we invest our scarce resources doing it at a time when we are seeking to balance our budget and cut taxes?”

Note: Want to know more? A good resource is "Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions" by the Immigration Policy Center.

Current Virginia Laws Applicable to Aliens

Virginia State Laws Applicable to Aliens and Immigrants

Updated: includes laws in effect on July 1, 2011

Drivers’ Licenses

2003 – Mandates proof of legal presence to obtain a Virginia drivers’ license or a state id card, § 46.2-328.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-328.1 [This law was updated in 2009 to more fully comply with the federal REAL ID law, see SB 1046, http://leg1.state.va.us/cgi-bin/legp504.exe?091+sum+SB1046]

2010 (HB 513) – Permits police to choose whether to charge a person previously convicted of driving without a license either under a local ordinance or a state statute. If the officer charges under the state statute, he must impound the car of the person cited for second offense driving without a license. Under the local ordinance no impoundment is authorized. The impoundment is for 3 days or until the person can obtain a valid license. Teens and persons whose licenses have been expired for a year or less are exempt from impoundment. http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+HB513ER2

Employment and Business

1977 -- Crime for employers to knowingly hire illegal aliens (although there is some question now if it is constitutional because of a federal law passed in 1986) §40.1-111 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+40.1-11.1

1977 – Proof of legal presence required for unemployment compensation benefits, § 60.2-617 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+60.2-617

Pre-1980 – Agricultural employment of workers present on agricultural visas excluded from definition of employment for purposes of unemployment compensation but employers required to count these employees in determining whether the employer is responsible for unemployment taxes for his other farm workers. §60.2-241 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+60.2-214

2000 – Workers’ compensation law amended to treat unlawfully employed alien workers the same as unlawfully employed minors except no payments for partial incapacity or vocational rehabilitation authorized. Law overturned Virginia Supreme Court decision holding that unlawfully employed aliens were not “employees” under the workers’ compensation law and were, therefore, free to sue in tort for injuries incurred on the job. §§65.2-101, 65.2-502, 65.2-603. http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+CHAP1018

1950 (as amended in 2006 and 2007) -- Crime to extort money from aliens by withholding immigration documents or threatening to report them to ICE, §18.2-59 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59;

2006 – Person who threatens to report someone as unlawfully present in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iii of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59

2007 – Person who destroys another’s passport or other immigration document in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iv of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59

2008 – Allows the State Corporation Commission to terminate the corporate existence of a business upon conviction of the corporation of a pattern and practice violation of federal immigration laws. §13.1-753iv of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0588

2008 – Requires all public bodies in Virginia (state and local) to include in written contracts for goods and services a requirement that the contractor agree that it does not and will not during the contract term knowingly employ an “unauthorized alien,” §2.2-4311.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0702

2009 (HB 2016) – Defines abduction to include circumstances in which someone is intimidated into forced labor or services by having his or her immigration documents withheld or by threats to report their immigration status; authorizes prosecution of two or more such acts as racketeering. http://leg1.state.va.us/cgi-bin/legp504.exe?091+ful+CHAP0662

2010 (HB 737) – Requires state agencies to begin using E-Verify program for new employees effective December 1, 2012.  http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+CHAP0633 Governor issued an executive order requiring all state agencies to begin using E-Verify effective July 1, 2011.

2011 (HB 1859, SB 1049) Provides that any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the federal E-Verify program to verify information and work authorization of its newly hired employees performing work pursuant to such public contract. Any such employer who fails to comply shall be debarred from contracting with any agency of the Commonwealth for a period up to one year. Such debarment shall cease upon the employer's registration and participation in the E-Verify program.  Effective on December 1, 2013.  http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+CHAP0573

Education

1975 – Consistent with the Family Educational Rights and Privacy Act of 1974, Virginia law amended to permit disclosure of school records of alien students to federal officers and employees seeking this information in the course of their government duties. §22.1-187 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+22.1-287

Pre-1994 -- Strict domicile requirements for in-state tuition prohibit illegal aliens from qualifying for in-state tuition at our colleges and universities, §23-7.4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+23-7.4

2002 – All Virginia colleges required to “inform the Attorney General of the Commonwealth whenever a student who has been accepted for admission to such an educational institution pursuant to a student visa fails to enroll or who has been attending such an educational institution pursuant to a student visa and withdraws at such institution or violates the terms of his visa.” Attorney General required to report names to ICE. §23.2-2 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+23-2.2

Health and Social Services

1950 -- Mental health department required to determine the nationality of any person admitted to a state facility and to report to immigration anyone determined to be an alien, §37.2-827 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+37.2-827

2005 -- Proof of legal presence required to obtain state benefits including welfare and Medicaid, §63.2-503.1 and §32.1-325.03 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-503.1 and http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+32.1-325.03

2011--Department of Social Services required to develop a plan to address delivery of services to victims of human trafficking.  No due date specified. http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+CHAP0258

Housing

2007 -- Penalties for residential overcrowding violations increased, §15.2-2286 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-2286

2007 – Local zoning administrators in NOVA given unprecedented authority to subpoena birth certificates and other personal documents in order to enforce local housing ordinances, §15.2-2286 4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-2286

2008 – Expands the power to subpoena documents to all zoning administrators statewide, 15.2-2286 4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0581

2008 – Gives zoning administrators the power to seek an inspection warrant allowing them to search private dwellings for zoning violations, §15.2-2286 15 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0777

Law Enforcement and Corrections

1950 (last amended in 1994) -- Sheriffs and the department of corrections required to identify criminal aliens in Virginia jails and prisons and report them to the Central Criminal Records Exchange, §53.1-218 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-218

1950 (last amended 1982) Clerks of court required to furnish court records to ICE regarding any alien committed to a correctional facility after conviction, 53.1-219 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-219

1985 – Provides for transfer of criminal aliens to federal custody or to be held pending deportation, §53.1-220.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-220.1

1985 (last amended in 1994) – Probation and parole officers required to ask about citizenship status and report to the State Police anyone who fails to produce evidence of citizenship; State Police required to review arrest reports from law enforcement and reports from probation and parole and report to ICE the identity of all convicted offenders suspected of being illegal aliens, § 19.2-294.2 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-294.2

1993 – Aliens (except lawful permanent residents) prohibited from owning, possessing or transporting assault firearms, §18.2-308.2:1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C01 and dealers prohibited from selling assault firearms to aliens (except lawful permanent residents), §18.2-308.2:2, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C2

1995- Aliens (except those lawfully admitted to permanent residency) prohibited from obtaining concealed weapons permits, §18.2-308 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308

2000 – Gun dealers prohibited from hiring illegal aliens to sell firearms, §18.2-308.2:3 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308

2004 – Persons not lawfully present in the United States prohibited from owning, possessing or transporting any firearm, §18.2-308.2:1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C01

2004 - Police officers given authority to arrest without a warrant anyone committing a crime who is an illegal alien previously deported after a felony conviction. § 19.2-81.6 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-81.6

2004 – Compensation Board required to maintain records re: citizenship of inmates and to encourage local jails to participate in the USDOJ State Criminal Alien Assistance Program, Appropriations Act of 2004.

2006 – Juvenile justice intake officers required to report to ICE any juvenile charged with a violent juvenile felony being detained in a secure facility who the intake officer has probable cause to believe is not lawfully present, §16.1-309.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+16.1-309.1

2006 -- Director of the Department of Juvenile Justice required to coordinate with the Dept of Corrections requests for compensation from the State Criminal Alien Assistance Program for the costs of incarcerating undocumented aliens, § 66.3.2 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-219

2006 – Person who falsely identifies himself to a law enforcement officer guilty of a class 1 misdemeanor, §19.2-82.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-82.1

2007 – Allows the courts to assess as part of the costs taxed to the defendant the costs of any interpreter appointed for the defendant when the defendant fails to appear for trial and is convicted of a failure to appear and the interpreter appears in the case and no other case on the date the defendant is convicted, §19.2-164 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-164

2008 – Judicial officer may presume, subject to rebuttal, that a person charged with certain criminal offenses should not be entitled to bail if the person is found to be in the United States without authority, §19.2-120.1 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0469

2008 – Requires the sheriff or other officer in charge of a jail to inquire into the citizenship and immigration status of every person taken into custody at a jail, §19.2-83.2 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0180


2011-- Requires the Department of Criminal Justice Services, in conjunction with the Office of the Attorney General, to advise law-enforcement agencies and attorneys for the Commonwealth regarding the identification, investigation, and prosecution of human trafficking offenses using the common law and existing criminal statutes in the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+9.1-102

Voting Rights

2006 – DMV required to send info it gets on noncitizens to State Board of Elections and State Board directed to remove names from election roles, §24.2-404 and §24.2-410.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-404 and http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-410.1

2008 – Requires general registrar of a county, city or town to cancel the voter registrations of any person who does not respond within 14 days to a notice from the registrar that they have been reported by the DMV not to be United States citizens, §24.2-427 B.1 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0382

Miscellaneous

1996 - English is the official language of the Commonwealth, § 1-511 of the Code of Virginia http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+1-511

2007 – Established the Commission on the Prevention of Human Trafficking, §30-287 et seq of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+30-287

2007 Established the Virginia Commission on Immigration, §2.2-2530 et seq of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-2530 (Commission sunsetted in 2009).

2011--Establishes January 11 as Global Human Trafficking Awareness Day in Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+HJ561ER

McDonnell and Cuccinelli at Odds Over 14th Amendment Protection for GLBT People?

When Governor McDonnell issued his executive directive prohibiting discrimination based on sexual orientation, he said that GLBT people are protected by the 14th amendment to the United States Constitution:

The Equal Protection Clause of the United States Constitution
prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

Today, Ray Reed reported in the The Lynchburg News and Advance this exchange between a student attending Boys State and Attorney General Cuccinelli that strongly suggests that the AG and the Governor do not agree on this fundamental legal principle:

"I'm sure you are aware of a letter that was sent to state universities regarding discrimination policies based on sexual orientation," a student said to Cuccinelli. "How is that not a violation of the equal protection clause of the 14th Amendment?" the student asked.

"I know about it," Cuccinelli replied. "I signed the letter. It was legal advice we gave to universities that was consistent with what five attorneys general before me had given. [This is a matter of debate as former Governor and Attorney General Gerald Baliles has pointed out. Prior AG's were focusing on local governments, not universities, in their opinions.]

"State universities are not free to create any specially protected classes other than those dictated by the General Assembly," Cuccinelli said.

"Your question is, why is that not a violation of the 14th Amendment's equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment," he said.

"There are judges who think these things 'evolve,' is the word they like to use," Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

The Attorney General's answer to the student prompts two follow up questions: "Would the AG or his office would defend the Governor if someone the Governor disciplines under the Executive Directive were to sue him?" "Would the AG defend a university nondiscrimination policy that includes sexual orientation?"

The AG has said in an unpublished statement given to a Washington Post reporter in response to attacks on his office's defense of George Mason's on campus gun prohibition that it's his job to defend state law and state officers and agencies unless their acts are unconstitutional.

How would he apply this standard if asked to defend either university nondiscrimination policies or the Governor's executive directive that protect GLBT Virginians from discrimination?

Bob Marshall -- More Labeling and Stereotypes

When it comes to a willingness to label and stereotype to serve his cause, Bob Marshall appears to have no limits.

Casting aside his penchant for papering over his personal agenda with cites to peer reviewed studies and research, Marshall shot from the lip again yesterday in an AP story by Bob Lewis about Equality Virginia's legislation to protect state workers from discrimination.

This time his target was gay, lesbian, bi-sexual and transgender Virginians.

Lewis' story says opponents of SB 66, which would prohibit discrimination in state employment, believe it is unnecessary and, then, quotes Delegate Marshall:

"I think there first should be some finding that homosexuals, as a class, are being discriminated against," said Del. Robert G. Marshall, R-Prince William, an ardent social conservative. "In all of my experience and reading, gay individuals seem to have more income, to attend more cultural events, to take more vacations than the rest of us. Show me where this discrimination is going on."

So, Bob, what do the studies show?

Took me less than two minutes to find these facts this morning:

Workplace protection is linked to higher earnings for gay men. Median earnings for gay men are $3,000 below the income of men with female partners, though the gap shrinks in states with workplace-protection laws and increases where none exist. Among less-educated men in the 11 states that protect workers from discrimination based on sexual orientation, earnings of partnered gay men come closer to earnings of men with female partners.
For more information:
Gates, Gary. 2003. "Income of Gay Men Lags Behind that of Men Partnered with Women." Washington, DC: The Urban Institute.
Gates, Gary. 2003. "Workplace Protection Linked to Higher Earnings for Less-Educated Gay Men." Washington, DC: The Urban Institute.
Gates, Gary. 2001. "Domestic Partner Benefits Won't Break the Bank." Commentary in Population Today. April 1.

I know there's more "evidence" out there, and, Bob, if you'd talk to the GLBT people who live in your district, I'm sure they'd provide many personal stories of discrimination, and confront your offensive stereotype of them as the ballet going, beach partying, comfortably rich.

Bob, here's my question for you ... what would you say if I had been quoted as saying, "in all my reading and experience, social conservatives are all poorly educated, hard drinking people whose idea of entertainment is to stay home and make babies?" You'd be righteously outraged, wouldn't you?

So, why shouldn't your ignorant use of gross stereotypes to defend your indefensible objection to granting all Virginians the basic human right of a workplace free from discrimination provoke the same outrage among fair minded people?

The answer is, it should, and it does.

Video Coverage of Equality Virginia's Press Conference on SB 66, March 1, 2010

Thanks to Rick Sincere of the Republican Liberty Caucus you can watch video of Equality Virginia's press conference today focused on the need to pass SB 66, the bill that would codify protections against discrimination for all Virginia state employees.

Watch Viola Baskerville, former Secretary of Administration in the Kaine Administration; Equality Virginia CEO, Jon Blair; Glen Pond on behalf of the Virginia Governmental Employees Association, and Dr. Patricia Cummins on behalf of the AAUP here.

Watch Rick Sincere on behalf of the Republican Liberty Caucus;Andres Tobar on behalf of the Virginia Coalition of Latino Organizations; Irving Taylor on behalf of the AARP; Ben Greenberg of the Virginia Organizing Project; Lawrence Webb, member of the Falls Church City Council and first out gay African American elected official in Virginia; and Delegate Adam Ebbin, the first out gay member of the Virginia House of Delegates, here.

Watch Senator Donald McEachin and questions and answer session, here.

The "Natural Consequences" of Hate

Christina got this exactly right. Once you let "hate" define your views (even if it is just to "hate the sin"), you can't control how it eats away at your soul and undermines your humanity. (See, Keeping it Civil re: hate as the language of politics).

Bob is a friend whose inability to accept responsibility for the natural consequences of his own actions and choices erodes his credibility as a messenger to others on the consequences of theirs.


EMBATTLED DELEGATE FACES CONSEQUENCES OF RANT ON ABORTION

By Christina Nuckols

The Virginian-Pilot Column

DEL. BOB Marshall looked haggard and bewildered as he searched his cluttered desk Wednesday for a way to explain and soften the hurtful words he had spoken a few days earlier.

“The Bible regards barrenness as a curse, not children,” he muttered as he leafed through the Encyclopedia of Judaism, then reached for a medical journal. “I should have used the term 'physical complications.’ ”

The Prince William County Republican insists his comments at a Feb. 18 press conference were taken out of context, but that rant against Planned Parenthood isn’t easily explained away.

“The number of children who are born subsequent to a first abortion who have handicaps has increased dramatically. Why? Because when you abort the first-born of any, nature takes its vengeance on the subsequent children,” he said in a videotaped speech. “In the Old Testament, the first-born of every being, animal and man, was dedicated to the Lord. There’s a special punishment, Christians would suggest, and with (sic) the knowledge that they have from faith has been verified by a study from the Virginia Commonwealth University. First abortions of the first pregnancy are much more damaging to a woman than latter abortions.”

Advocates for the disabled were enraged when they learned of the remarks, but there was a delayed reaction. Early media reports didn’t include the quote, in part because Marshall was sandwiched between other speakers accusing Planned Parenthood of racial genocide. But the slow response may also stem from Marshall’s split personality. Journalists and fellow legislators struggle to reconcile the rumpled, self-deprecating fellow most genuinely like with the steely crusader who too often wages misplaced attacks on the innocent.

When I first met Marshall in 1998, he handed me a computer disc filled with pornography. It was a startling introduction, but 12 years later he can walk up to me and start discussing the evils of bestiality without inspiring a blush, much less a call to 911. I’ve grown accustomed to his campaigns against abortion and gay rights, but also his work for autistic children. I know all of his tales about tormenting nuns at Catholic school, taking judo lessons from a bodyguard of Chiang Kai-shek and meeting Harry Truman.

His kids have grown from teenagers to adults. Except Chris, who died at age 19 when the pickup truck he was a passenger in struck a tractor-trailer one night in 2001. Since then, I’ve rarely seen Marshall without a camera around his neck.

“I just wanted people to have memories,” Marshall said. “I cried for nine months after his death. A friend of mine who’s a photographer said I needed therapy.”

If I sometimes feel a little protective toward him, I’m also troubled by that other, darker side of Marshall, the one he presents to the rest of the world. My own religious beliefs make it easy to understand his opposition to abortion, but I cannot condone his harshness toward the women who have made that difficult choice.

“I feel sorry for these women,” he said. “I’m the occasion of an unresolved conflict for some women who’ve had an abortion. It’s still bothering them.”

His words are far from convincing, and it’s even harder to explain his attitudes toward gay people. Some of the unborn whose lives he says he is fighting to save would certainly grow up to be gay and therefore second-class Virginians under the laws he has written.

Marshall is consumed by a moral code that blinds him to the consequences of his own actions and words. “Hate the sin, love the sinner” is a nice-sounding mantra that is rarely achieved. Hate isn’t something so easily contained and channeled. It’s a corrosive force that eats away at both the guilty and the innocent, even disabled children and their parents.

I still believe there’s a part of Marshall who understands that and would do anything to retract his malevolent words. But he won’t find it flipping through his theology and medical books.

House of Delegates Refuses to Protect State Workers From Being Fired Because They Are Gay

Today, the Virginia House of Delegates refused even to vote on a proposal to protect state workers from being fired for being gay, or black, or Latino, or disabled, or a veteran, or a person with genetic markers for breast cancer, or old ... .

Delegate Adam Ebbin proposed an amendment to the budget (which will require lay offs and job cuts across the state workforce) that said:

No employee of the Commonwealth, including employees of public institutions of higher education, shall be discharged or laid off from employment based on his race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran. Any employee discharged or laid off in violation of this subsection may bring an action pursuant to §2.2-2639c. of the Code of Virginia and recover back pay and attorneys fees as provided therein.

Delegate Ebbin made the following points in support of his amendment:

In this budget we are forced to adopt reductions in funding that could lead to the lay off or discharge of hundreds of employees across state government and in our colleges and universities.

These employees have no meaningful protection from lay off or discharge based on factors other than merit such as race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran.

Although state employees should have some protection from discrimination under the Governor’s executive order, the new Governor has removed protections previously provided for the state’s gay, lesbian, bisexual or transgender employees, saying that it is up to the legislature to set the state’s policy in this regard.

And, even if applicable, the executive order offers little in the way of remedies for an employee who loses his or her job through the discriminatory action of a single supervisor.

Finally, state employees have little protection from discrimination under federal civil rights laws because of a series of Supreme Court decisions that have interpreted the 11th Amendment to the US Constitution as providing state immunity from suit in federal or state court for violations of the federal Civil Rights Act, the Age Discrimination Act, the Americans with Disabilities Act and the Equal Pay Act. It has been the policy and practice of the Office of the Attorney General for at least the last decade to aggressively assert this immunity defense in all discrimination cases brought pursuant to federal law by state employees.

This budget amendment does no more than extend to state employees the same limited right to recover back pay for discriminatory discharge that the state has extended to private employees in businesses with 5 to 15 employees (who also lack federal civil rights act protection). The only difference is that this amendment also protects state employees from discriminatory discharge based on sexual orientation and gender identity and adds protection from discrimination based on “genetic information” a new protection added by the federal Genetic Information Nondiscrimination Act of 2008, that protects employees from discrimination based on the results of genetic testing like testing that reveals a predisposition to breast cancer.

We’ve heard a lot about what’s good for the goose should be good for the gander in the context of debates about extending mandated benefits to both state and private employees alike. It’s time to assure our state employees, that as they face the uncertainty of the current economic and budget crisis, that we believe that they should be protected from discriminatory discharge just like their peers in the private sector.

It’s the right thing to do. And, it’s an action supported by almost 90% of Virginians who agree that even gay, lesbian and transgender people deserve protection from workplace discrimination and the right to work for the government.

I urge you to adopt this amendment.

So, what did the House do with this eminently reasonable proposal?

It ducked taking a stand on what the Governor has said is its job ... setting the personnel policy of the Commonwealth.

Delegate Bob Marshall (again!) moved to "pass the amendment by," a procedural move to kill it.

The House voted in favor of his motion 61-38 after a question from Delegate David Englin made clear that a vote in favor of the motion was a vote to kill the amendment.

You can watch the debate on the amendment:

Time to Do the Right Thing

Today, Equality Virginia, the AARP, the AAUP, the Virginia Education Association, the Virginia Governmental Employees Association, the Virginia AFL-CIO, and the Virginia Coalition of Latino Organizations stood together in support of SB 66, a bill that would, for the first time, codify protections against discrimination for Virginia's hard-working and underpaid state employees.

In 1970, Governor Linwood Holton established a tradition that Virginia chief executives followed until this year; his first official act as Governor was the issuance of an executive order promising state employees equal opportunity and protection from discrimination in the workplace.

35 years later, Governor Warner concluded his term by signing an executive order extending this protection to discrimination based on sexual orientation -- a promise of opportunity continued in Governor Kaine’s first executive order on Equal Opportunity issued the day he was sworn in as Virginia’s 70th Governor – a promise also extended by Governor Kaine’s order to Virginia’s veterans.

Despite this long history of executive action, the Virginia legislature has never acted to incorporate in the Code of Virginia an explicit and comprehensive ban on discrimination in public employment. And, as then Attorney General McDonnell said in an opinion he issued in 2006, the legislature's failure to act deprives the Governor of the authority to extend anti-discrimination policies to Virginia's gay, lesbian, bi-sexual or transgender employees by executive order.

It is past time for the Virginia legislature to make the Commonwealth’s equal opportunity policy clear and applicable equally to all public employees.

No state employee should have reason to doubt Virginia's commitment to equal opportunity in employment for all regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, disability, sexual orientation, or veteran status.

Today, eight members of the Senate General Laws Committee voted to report a bill that codifies past executive actions and makes equal opportunity a matter of legislative enactment.

Much has been made of the fact that this bill would include sexual orientation in the legislature's statement of the Commonwealth’s nondiscrimination policy.

Protecting Virginia’s gay, lesbian, bi-sexual and transgender public employees from discrimination is not a radical idea.

Virginia is far behind private sector employers in adopting such a nondiscrimination policy. Top employers protect their workers from discrimination based on sexual orientation, because it simply makes good business sense.

All of Virginia’s top ten largest private employers have sexual orientation protections in their non-discrimination policies:
• Wal-Mart
• Northrop Grumman Newport News
• Food Lion
• Sentara
• Inova Fairfax Hospital
• Science Applications International (SAIC)
• Booz Allen Hamilton
• Target
• UPS

30 states now have laws and ordinances that ban discrimination by all employers (public and private) based on sexual orientation; 12 and the District of Columbia include gender identity. Such nondiscrimination laws now cover over half of the United States population.

A poll of Virginia voters conducted by a bi-partisan polling team has found that, even among Virginia voters who would vote for a marriage amendment, 86% said gays and lesbians should have the right to work for the government.

It is time for the Virginia General Assembly to reject the insubstantial, biased, and fear based arguments against this legislation and make equal opportunity in employment the law for all Virginia state employees regardless of race, national origin, sex, age, disability, political affiliation, religion, and, yes, sexual orientation.

It is simply the RIGHT thing to do.

Please urge your Senator to vote YES on SB 66. You can find out who your senator is and how to contact him or her on the Virginia General Assembly home page.