Reichley Column: Opening up a can of worms

If you fish, you've probably used a container of worms. These are easy to open. However, as the worms start moving around, they take up considerably more space, making it hard to close the container. This became a popular metaphor for a simple and often reasonable action which brings to light a much more complicated discussion or set of issues.

Politicians tend to avoid "cans of worms" because public perception is more important to re-election than what you actually do. Who knows how many common-sense things remain unsaid because their mention would open a "can of worms?"

Del. Bob Marshall's comment concerning a study that showed aborting a first child increases the risks of abnormalities in subsequent children is one example of how easy it is to get in trouble for the issues raised by simple, truthful statements.

Another example is Sen. Jim Bunning's recent acts blocking a Senate "jobs bill." He wanted to make a simple, defensible point -- we should pay for the bills we enact. But that message was lost, because of the "can of worms" regarding the supposedly "emergency" nature of the bill. Democrats and their news media minions were quick to claim that holding up the bill was hurting thousands of Americans who wouldn't get benefits or might be furloughed from government.

Eventually, a deal was struck, and the Senate voted. In this case, the "emergency" was contrived. Once Bunning allowed the vote, no more was written about the "suffering" caused by holding up the bill. So you may not know that the bill still has not passed. That's right -- after the Senate voted, the bill went to the House, which took days to debate it and which amended it before passing it late last week. Now it goes back to the Senate, before being signed -- so much for having to "hurry the bill along."

Virginia Attorney General Ken Cuccinelli opened his own "can of worms" this past week, when his office issued a simple, reasonable opinion responding to questions about Virginia's public colleges including sexual orientation in anti-discrimination policies. The opinion notes a long-standing legal principle that public colleges act at the behest of the legislature and have no authority to make rules beyond what the legislature allows. The opinion notes that the legislature has "specifically defined unlawful discrimination at educational institutions" and concludes "a Board of Visitors cannot adopt a policy position for which no authority has been granted or that has repeatedly been rejected by the General Assembly."

The letter cites previous opinions by the AG's office backing this position, and notes the legislature has rejected changes to the state anti-discrimination policy. The letter is advisory, meaning it is the legal opinion of the state but does not require action to be taken. The AG's office, performing its required duties, responded to an inquiry by issuing an opinion backed by precedence and state law. This seems simple enough.

But the problem is, "discrimination" is bad. So talk of removing "anti-discrimination protection" isn't going to work out well. State colleges have long since added various sexual orientation and gender identity language into their policies. The last two Democratic governors issued executive orders including sexual orientation as a protected class in state government, again against the advice of the AG's office and contrary to state law. Governor McDonnell wouldn't re-issue that executive order, but he also has no interest in asking the state colleges to change their policies.

Meanwhile, the legislature just rejected another attempt to add sexual orientation to the state anti-discrimination policies.

It seems we were content to let "sleeping dogs lie." We don't want the law to require special protections for sexual orientation, but also don't want to look "bigoted" by fighting the inclusion of such language outside of the law, so long as the schools do it themselves.

Ken's letter upset that delicate balance, bringing to light a subject that politicians didn't want to address directly. As former representative and current George Mason Visitor Vincent F. Callahan, Jr. said, "I don't know what he's doing, opening up this can of worms."

I don't expect any changes to the current school policies. Ken will be attacked for the "bigoted" opinion (even though there is nothing said against gays in the letter). The legislature will reject new language, because passing a bill would itself open a huge can of worms. And the state will avoid discrimination or any action that would bring more pressure for a bill -- which was the likely reason the letter was leaked.

Charles Reichley has been a Prince William County resident since 1981. He can be reached at: criticallythinking@msn.com.