05/08/2010 05:12 am ET | Updated May 25, 2011

Yes, Virginia, There Will Be a Clause

As anyone who cares about human rights in America should know by now, Ken Cucinelli, Virginia's Attorney General, has "urged the state's public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation, arguing in a letter sent to each school that their boards of visitors had no legal authority to adopt such statements."

If this advice is followed, it will be possible to fire someone in a Virginia public college or university on the basis of his or her homosexuality. No other justification need be given.

I am hoping this "advice" is ignored by the institutions that already list sexual orientation as a protected class. But I strongly suspect there are at least a few who will comply, and perhaps all will eventually be forced to. No one really knows.

I'm no lawyer, but it seems pretty clear to me that "sexual orientation" does not specify homosexuality. Wouldn't that mean that an employee could also be fired for being heterosexual as well?

If this directive is followed, there will be some straight people working in the system of public colleges and universities in Virginia who will be outraged by it. Some of them will be working for a gay person who is also outraged by it. And one of these straight workers will leave his or her job, for whatever reason. I am asking that person not to give notice, but to walk into his or her supervisor's office, and ask to be fired on the basis of his or her heterosexual orientation.

Then this worker needs to file suit for wrongful termination. It wouldn't take long for it to hit the papers and the networks. Even if it never makes it to court, depositions will be filed, interviews will take place. And the supervisor must be insistent, no matter what, that the worker (let's call her "Gail") was fired for "flaunting her heterosexuality."

I'll be glad to provide Gail's supervisor with some sample testimony: "I don't mind what someone does in the privacy of her own bedroom, but Gail kept her boyfriend's picture on her desk, talked about their weekends camping, even brought him to the office Christmas party and announced their engagement. Then for months later, everything was 'wedding, wedding, wedding.' When she talked about trying to get pregnant it was the last straw. You have to draw the line somewhere."

It's hard to imagine a court not declaring this unconstitutional as a basis for firing someone, thereby reinstating the protection. But it's also easy to imagine the lawsuit being thrown out by a conservative judge as frivolous. That's less important than reaching the 37% of Americans, particularly those in Virginia, who still claim to pollsters they don't personally know someone gay. It's those people who need, if only for a moment, even involuntarily, to imagine themselves as the ones who could be fired for loving who they love.