How the Family Foundation of Va. kept a gay prosecutor off the bench
The Virginia House of Delegates voted against the appointment of an openly gay prosecutor for a Richmond judgeship early Tuesday after a conservative lobbying group questioned whether he would pursue an activist agenda from the bench.
Prosecutor Tracy Thorne-Begland, a former Navy pilot and deputy Commonwealth’s attorney, received only 33 of a necessary 51 votes to earn a judicial appointment from the 100-member House. Thirty-one delegates, all Republicans, voted against Thorne-Begland’s appointment, while 26 delegates did not vote and 10 abstained.
Thorne-Begland was the only judicial candidate voted down by the General Assembly. Only two other judicial candidates received any ‘nay’ votes.
Thorne-Begland’s candidacy had drawn little scrutiny and his appointment appeared imminent until last week, when the right-wing Family Foundation of Virginia and conservative Del. Bob Marshall began an offensive against him.
In an email to supporters three days before the House vote, the Family Foundation said Thorne-Begland was unfit to serve as a General District Court judge — handling primarily traffic cases, misdemeanors and contract disputes — because of his outspoken opposition to the military ban on gay and lesbians while he was in the Navy and his advocacy for equal rights for LGBT people.
“Until we can be assured he will not put his obvious political agenda ahead of the law, we don’t believe he should be approved,” the Family Foundation email said.
Chris Freund, vice president and communications director for the Family Foundation, said the group learned about Thorne-Begland’s nomination only days before its email.
“A member of the General Assembly called and had become aware of his background,” Freund said. “The more research we did, and the more we read about some of his past statements, political activities and views on Virginia law and the Constitution, we just really started to question whether or not he was going to be willing to follow those laws if he became a judge.”
Despite evidence and testimony about Thorne-Begland’s distinguised legal career, multiple lawmakers who had approved Thorne-Begland’s candidacy in subcommittee flip-flopped and either didn’t vote or voted against his appointment Tuesday.
“He’s been our delegation’s candidate from the beginning and after Friday’s email from the Family Foundation, that was the first time anybody raised any concerns about him,” said Delegate Jennifer McClellan, one of Thorne-Begland’s sponsors. “This came out of nowhere. I can’t think of any other time where [the Family Foundation] have mobilized out of the blue like that.”
McClellan said that during questioning in front of a joint judicial subcommittee more than 40 days before the vote, legislators had the opportunity to ask Thorne-Begland anything but raised no concerns about his sexual orientation, military career, or activism.
“He didn’t keep anything secret,” McClellan said. “When the members of the committee had the opportunity to ask him questions, the only thing they asked him about his military service was, ‘What kind of plane did you fly?’”
But Freund said that process was insufficient and that lawmakers didn’t have an opportunity to “vet him thoroughly.”
“They don’t have a lot of time,” Freund said of lawmakers on the judicial subcommittee. “They can ask questions but it’s just simply based on a resume that’s put in front of them and some paperwork and they kind of take the word of the legislators who have brought the individuals before the committee.”
McClellan said that the Family Foundation and some conservative lawmakers misrepresented the facts and because the conservative outcry came after the judicial subcommittee process, Thorne-Begland had no ability to respond or defend himself.
For instance, the Family Foundation email claimed that Thorne-Begland “violated DADT, while in the Navy.” In fact, ”Don’t Ask, Don’t Tell” did not become law until late 1993, the year after Thorne-Begland came out as gay on the national news show “Nightline.” At the time he appeared on “Nightline,” military policy prohibited all gays and lesbians from serving.
Despite boasting of “extensive research capabilities,” Freund admitted the error.
“That’s a goof we need to correct,” Freund said.
As of Friday morning, no correction had been posted on the Family Foundation’s website.
The military policy that at the time barred service by gays and lesbians ultimately led to Thorne-Begland’s dismissal, but the Navy gave him an honorable discharge and presented him with a medal recognizing his service.
“People said how he violated military code because you’re not supposed to argue for a partisan candidate or cause,” McClellan said. “But he didn’t do that. He simply said, ‘I’m gay.’ People don’t understand that there are gay Republicans, too.”
Despite the outcome of the vote, Freund said the Family Foundation would continue to oppose bills to protect LGBT people from discrimination in government employment.
“We have no evidence that discrimination has been or is taking place,” Freund said.
A qualified attorney
On Wednesday, the editorial boards of four of Virginia’s largest daily newspapers — The Washington Post, the Richmond Times-Dispatch, The Roanoke Times, and The Virginian-Pilot — roundly criticized the General Assembly’s vote to reject Thorne-Begland.
The Post said Thorne-Begland was “overqualified for a judgeship,” and The Virginian-Pilot called Tuesday’s vote “among the lowest moments in a legislative session that’s been full of them.”
The papers were not alone. Richmond Commonwealth’s Attorney Michael Herring held a press conference Tuesday to criticize legislators.
“Where is the empirical evidence that once a gay person puts on a robe, he or she advances a gay agenda?” Herring said. “If there’s a tough call to make, you make the tough call, you draw criticism and you move on to the next decision. You don’t duck the call. I don’t know how Virginia overcomes now this perception that it is an anti-gay forum.”
Defense attorney Bill Irwin said Thorne-Begland’s qualifications exceeded those of the average prosecutor.
“As a defense attorney, you were always happy when Tracy had one of your cases because you knew everything would be above board,” Irwin said. “You couldn’t ask for a better prosecutor than Tracy.”
Irwin said Thorne-Begland maintained high ethical standards and did not try to manipulate the law for his benefit.
“Tracy, like all prosecutors, wanted to see justice done,” Irwin said. “He would never push things. He would never conceal evidence. He would never do anything like that.”
“What I can tell you is that as a judge, he would follow the law,” Irwin said. “Whether he agreed with it or not, he would have followed it.”
Gov. Bob McDonnell, who said before the vote that sexual orientation should be irrelevant in the judicial appointment process, expressed his concerns Tuesday.
“If anyone voted against Mr. Thorne-Begland because of his sexual orientation that would be very disappointing and unacceptable,” McDonnell said.
But McClellan said the motive behind the campaign against Thorne-Begland was clear.
“All of this was a smokescreen because they did not want him appointed because he was gay,” McClellan said. “Some will come right out and say it. Maybe not publicly, but that is what they truly believe.”
James Parrish, executive director of Equality Virginia, agreed with McClellan.
“Tracy was stricken from the position because he’s an out gay man,” Parrish said. “There’s no getting around it. All Virginians, not just LGBT Virginians, should be outraged that this behavior still goes on among our elected officials.”
But Delegate David Albo, one of the few Republicans to vote in favor of Thorne-Begland’s appointment, said the supposed issue of military insubordination caused veterans in the General Assembly to “freak out.”
“I would have been able to get him elected if it was just [concerns about his gay rights activism],” Albo said. “Every single person in the military had a problem with him for going outside of his chain of command.”
“My counter to that was while that may be true, if you look at his discharge papers, he was honorably discharged,” Albo said. “The Navy must not have thought it was that bad if he was honorably discharged, but that wasn’t enough to sway the veterans.”
Albo said that Thorne-Begland’s “gay activism” likely caused some delegates to vote against him.
“Everybody I’ve talked to made this a big anti-gay thing,” Albo said. “There were some legislators who probably voted against him because of his gay activism, but the big debate was by the veterans.”
Some of those veterans claimed that Thorne-Begland violated a military oath by coming out on “Nightline” as a show of opposition to “Don’t Ask, Don’t Tell,” but military experts disagreed.
“Thorne was speaking out to defend himself and he was also speaking out to defend the military from a bad policy and a bad law that our commander-in-chief and others have said did not serve the military,” said Nathaniel Frank, author of “Unfriendly Fire,” a book about “Don’t Ask, Don’t Tell.” “For someone to speak out and say ‘this is not serving the military’ should not be considered any kind of violation of military code.”
Frank added that military regulations preventing service members from speaking out on partisan political issues should not apply in Thorne-Begland’s case.
“It wasn’t a partisan position,” Frank said. “That was a law that was being, and ultimately was supported by both parties.”
Frank said the military set up a system that forced gay service-members to deny their sexual orientations, but also required their presence in order to succeed.
“There was never any time when, realistically, the military could have rooted out all gays and lesbians,” Frank said. “And there would have been gaping holes in the military if they had done that.”
“The military set up a situation where people had to be less than fully honest to serve, but also for the military to complete its mission,” Frank said.
The ‘Traditional’ Family Foundation
The Family Foundation of Virginia was founded in 1985 and calls itself “the largest and most influential Virginia-based organization of its kind.”
The foundation, which identifies as nonpartisan, lists among its successes: requiring pre-abortion ultrasounds, adding a traditional marriage amendment to the Virginia constitution, instituting a ‘conscience clause’ to allow discrimination in adoption, and defeating an amendment to protect LGBT employees from workplace discrimination. The group said the 2012 legislative session was “one of the most successful policy sessions we’ve ever seen.”
The foundation also issues a report card for legislators every two years, which it calls “one of the most sought after political documents in Virginia.” The group says it distributed 100,000 report cards during 2009.
While legislators said the group held a great deal of power among the religious right, another faith-based group in Virginia said the Family Foundation misinterprets scripture and represents a fading sect of ultraconservative Christianity.
“It was clear that [the Family Foundation] frightened a great deal of folks in the General Assembly into either voting against Tracy’s nomination, or scared them out of showing up to vote,” said John Humphrey, an attorney and board member for People of Faith for Equality in Virginia.
“They talk about protecting families and protecting marriage and that they are not an organization that wants to discriminate,” Humphrey said, “but their actions opposing Tracy’s nomination clearly show that bigotry is at the root of the stands they are taking.”
People of Faith for Equality in Virginia, an interfaith group, believes that scripture dictates acceptance of all people and encourages equal rights, Humphrey said.
“There’s a lot of really ugly and incorrect interpretations of scripture, but over time we’ll be able to get there,” he said. “We’ll be able to welcome everyone into the Christian community regardless of their sexual orientation.”
Humphrey said that the Family Foundation established itself at a time when more conservative ideas represented mainstream thinking.
“They have the patina of a great deal of authority and influence,” Humphrey said, “and they do cow many legislators into following them, but the reality is that they represent a minority of opinion in the state on these issues and their influence is waning.”
McClellan said that there was an understanding among Republican legislators, especially those from heavily conservative districts, that failing to follow the Family Foundation’s agenda could lead to political distress. She said votes on trans-vaginal ultrasounds and anti-abortion rights legislation earlier during the session demonstrated that reality.
“I have heard either directly or indirectly from some people who are a little more moderate or who personally don’t believe in some of the bills,” McClellan said. “But between pressure from the Family Foundation and conservative members of the caucus, they feel compelled to vote a certain way because those groups say, ‘If you don’t, you will get a primary challenge from the right and we will take you out.’”
Freund said the Family Foundation did not involve itself in the primary process and that its power came from voters.
“Any influence the Family Foundation has is because the voters in Virginia that agree with our positions and our principles are very involved in the political process,” Freund said. “I have yet to meet the legislator who said they were voting for or against something simply because it was a position that we had.”
Despite the fact that the Family Foundation’s efforts succeeded in blocking Thorne-Begland’s appointment, Humphrey said it would ultimately hurt the group in the long run.
“Their organizing of the opposition to Tracy’s nomination reveals how much oppression and venom remains embedded in our politics,” Humphrey said. “But, in that sense, I’m thankful for their opposition because it helps to point out and bring to light how deeply unfair and hate-filled their stance is.”