ANALYSIS: Missouri governor sets new discrimination policy

Tuesday, July 27, 2010 | 10:11 p.m. CDT

 JEFFERSON CITY — It's relatively basic: Laws are created after the Legislature approves a bill and the governor signs it. But that is not the only way for chief executives to enact policy.

Gov. Jay Nixon used such an alternative method earlier this month, approving an executive order that expands Missouri's nondiscrimination policies to cover people who are gay and those who served in the military.

Under the order — which applies to the executive branch of state government — people cannot be treated differently based on sexual orientation or veteran status for jobs and various state services such as licensing, job training and financial assistance.

The policy change breaks some new ground in Missouri. Yet the means for making it happen is not new.

Missouri became the first state to enact a constitutional amendment banning gay marriage after a ruling in Massachusetts legalized same-sex weddings there. Missouri's constitutional amendment in 2004 picked up 70 percent of the vote and was endorsed in every county but St. Louis city.

State law already bars discrimination based on race, color, religion, national origin, ancestry, sex and disability in employment, housing and public accommodations, according to the Missouri Commission on Human Rights. For housing, discrimination based on familial status also is banned and for employment, discrimination based on age is not allowed.

But existing state law does not cover discrimination based on sexual orientation.

Nixon said Friday that he has long believed the state should not discriminate based on sexual orientation.

"I just feel like discrimination of that sort is not part of public service," Nixon said.

And to make that happen, the governor expanded the state's nondiscrimination policy through an executive order — though Nixon's office did not publicize it.

Unlike a state law, an executive order can be repealed by future governors. But the order does not have to go through the Legislature, and that helps governors detour possible opposition.

The method is similar to the technique used by Missouri's last Democratic governor, who maneuvered around critics in the Legislature and business groups to allow state workers to collectively bargain through an executive order.

In 2001, then-Gov. Bob Holden announced just before 5 p.m. on the Friday before Independence Day that he had signed an executive order allowing state employees to collectively bargain.

It affected up to 30,000 of the state's 65,000 workers and allowed union-like fees to be deducted from the paychecks of workers in agencies that elected to bargain. It also triggered an intense fight between the Democratic governor and Republican leaders, who had resisted legislation the year before that would have allowed state workers to collectively bargain.

GOP lawmakers accused Holden of exceeding his authority and launched hearings. Republicans sought to block the effects of the order through court action and votes by lawmakers.

The saga ended 3½ years later as Holden's term in office was expiring. Incoming Republican Gov. Matt Blunt — then Missouri's secretary of state — complied with a court order and published in December 2004 a rule allowing fees for collective bargaining to be deducted from workers' paychecks. Blunt then revoked the executive order when he became governor the next month.

Similar to his predecessor, Nixon has stepped in and given a forward shove to an issue that has not been endorsed by Republican leaders in the Legislature but has support from those that have ties with Democrats.

Backers of barring discrimination based on sexual orientation have worked for about a decade to get support in the Capitol and only in recent years have succeeded in getting the legislation considered by House and Senate committees.

This year, a bill banning discrimination based on sexual orientation was approved by the only House committee led by a Democrat but did not advance to be debated by the full chamber.

Unlike with Holden's collective bargaining order, the Missouri Republican Party has remained silent about Nixon's policy change.

A.J. Bockelman, the executive director of PROMO, said Nixon's executive order sends a strong message from a governor who is identified as a moderate or conservative Democrat. PROMO, a statewide organization that advocates for lesbian, gay, bisexual and transgender equality, said roughly half the states ban discrimination based on sexual orientation.

"You can still be fired in the state if you identify yourself as gay. You can be denied services solely for the fact you identify as being gay," Bockelman said.

But not by many state government agencies because of Nixon's executive order.


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