By Terry L. Price and Sandra J. Peart

When Virginia Attorney General Ken Cuccinelli told the Commonwealth’s public colleges and universities that state law does not allow anti-discrimination policies protecting their communities from bias based on sexual orientation, he claimed in the press that his letter “is not excusing mistreatment of fellow human beings” but is “a statement of law.”

Cuccinelli's argument missed the fact that something can be a statement of law while excusing the mistreatment of fellow human beings, a fact that Virginians know well. Because law is not equivalent to morality, law sometimes allows — indeed encourages — the mistreatment of fellow human beings. When it does so, the law surely needs to be changed. 

In a much-need response to Cuccinelli’s critics, Governor McDonnell issued an executive directive clarifying his administration’s stance on employment discrimination. According to McDonnell, state and federal law work in concert to prohibit employment discrimination of all kinds, including discrimination on the basis of sexual orientation.

But the attorney general sees the law differently. It is precisely this difference in interpretation that calls for Virginia leaders to do more work to ensure not only that our law comes down on the side of morality but also that it does so with clarity and conviction.

Why the potential disconnect between law and morality? After all, much of morality is straightforward. Murder, rape and robbery are morally wrong. And, accordingly, the law clearly prohibits them.

The potential disconnect between law and morality has its source in a different kind of moral question. It does not ask, “What actions are morally wrong?” but, rather, “Who deserves the full protection of the law?” Answering questions about moral membership can be much harder than determining what kinds of actions are morally wrong. Equally important, answering them incorrectly can have morally disastrous consequences.

Our historical tendency has been to come down on the side of exclusivity in response to such questions. Like many people in the past, our leaders held that women, the mentally disabled, and Native and African Americans did not deserve the same protections under the law that others enjoyed. The results were disastrous — massive resistance, Jim Crow, eugenics.

Great courage was required of leaders whose job it was both to change the laws and dismantle the oppressive practices the law had allowed. We now see — and many of the people who held those views came to see — that exclusive beliefs were the root of moral disasters.

How, then, should our leaders to respond to the current controversy over whether or not members of our college communities should be fully protected against bias based on their sexual orientation?

One response would be to deny the current issue is analogous to past moral disasters. But, of course, people on the wrong side of a moral issue always think there is some relevant distinction that sets their case apart and puts them on the right side. Otherwise, they would not be on that side.

We do not need to defend the assumption that state leaders who oppose an anti-bias bill are on the wrong side of the issue. Nor do we need to convince them that they are wrong about who deserves the full protection of the law. Instead, we believe two reasons should convince them to err on the side of inclusivity.

First, our historical record of dealing with questions about who deserves the protection of the law is one of near complete moral ineptitude. For whatever reason, psychological or biological, we simply are not very good at making judgments of how people perceived to be morally outside our own group ought to be treated. History is rife with examples of how our judgments about the treatment of outsiders have gone awry.

Second, being too inclusive of outsiders does not produce morally disastrous results. It is difficult to find a single instance in which greater exclusivity would have avoided any significant moral costs. Yet library stacks are filled with the details about how exclusivity has produced great moral misery. Because of that historic misery, people have good reason to view aspects of our past with regret and shame.

To avoid wincing as we look back at ourselves, or bowing our heads in shame as others look back on us, our leaders should err on the side of inclusivity. Rather than trying to walk the fine line between enforcing a law and not excusing mistreatment of fellow human beings, our leaders should change the law. And we should demand that they do so.

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Terry L. Price is professor and associate dean for academic affairs at the University of Richmond’s Jepson School of Leadership Studies. Sandra J. Peart is professor and dean of the Jepson School.

A version of this opinion piece was published Wednesday, March 17 in the Norfolk Virginian-Pilot newspaper