Ms. Stephanie Burns
Chairperson
Fairfax Alliance for Citizen Equality
P.O. Box 346
Annandale, VA 22003-0346

Dear Ms. Burns:

At the request of your organization, the Fairfax Alliance for Citizen Equality, we have evaluated the Fairfax County Board of Supervisors's legal authority to take measures relating to discrimination on the basis of sexual orientation. In an April 16, 1997, letter to Katherine Hanley, Chairperson of the Fairfax County Board, Assistant County Attorney Michael Long advised that the Virginia Attorney General has opined that localities such as Fairfax County lack authority to prohibit discrimination on the basis of sexual orientation. (A copy of the letter is attached hereto as Exhibit A). Having carefully examined the relevant statutes, caselaw, and opinions of the Virginia Attorney General, we respectfully disagree with this position and assert that the Fairfax County Board has authority to take action in this area.

First, the Board can authorize the County Human Rights Commission to promote policies designed to ensure equal opportunity for all citizens regardless of their sexual orientation, as well as to investigate complaints of discrimination based on sexual orientation and assist in their voluntary resolution. Second, the Board has the legal authority to adopt an ordinance going beyond the foregoing and affirmatively prohibiting discrimination in housing, real estate transactions, employment, public accommodations, credit, and education on the basis of sexual orientation. Third, the Board has the authority to prohibit discrimination on the basis of sexual orientation in county employment and contracting.

I. AUTHORITY TO INVESTIGATE DISCRIMINATION

Title 15.2 of the Virginia Code prescribes the powers of local governments and describes the various forms of county government which may be adopted by voter referendum. Va. Code Ann. §§ 15.2-300 to -301 (Michie 1997). Several of these governmental systems have identical grants of express authority in the human rights area, while others have distinctive powers set out in separate statutes. Fairfax County has adopted one of the distinctive systems of government, the Urban County Executive Form, as provided by sections 15.2-800 to -801. The express human rights powers of the Fairfax County Board are therefore to be found in section 15.2-853 (copies of the relevant statutory sections are attached hereto as Exhibit B).

Section 15.2-853 gives two powers to the Fairfax County Board. The first is authority to enact an ordinance banning discrimination in a wide range of areas on the basis of "race, color, religion, sex, pregnancy, childbirth or related medical conditions, national origin, age, marital status or disability." Va. Code Ann. § 15.2-853. The second, directly pertinent here, is authority to establish a Human Rights Commission with the following "powers and duties: 1. To promote policies to ensure that all persons be afforded equal opportunity; 2. To serve as an agency for receiving, investigating, holding hearings, processing and assisting in the voluntary resolution of complaints regarding discriminatory practices occurring with the county." Id.

On its face, section 15.2-853 gives the Board authority to promote policies to ensure all persons be afforded equal opportunity and to investigate discriminatory practices. The section does not limit the areas of discrimination that the Human Rights Commission may investigate and attempt to voluntarily resolve, nor does it provide that policies promoting equal opportunity may not consider sexual orientation.^1/ It appears to us inescapable, therefore, that the Fairfax County Board may authorize the Human Rights Commission to investigate complaints of sexual orientation-based discrimination and assist in the resolution of such complaints.

A 1993 opinion of the Virginia Attorney General reached this very conclusion. See 1993 Va. Op. Att'y Gen. 68 (1993) (copies of the Virginia Attorney General opinions discussed in this letter are attached hereto as Exhibit C). The Attorney General there was asked to interpret language in the human rights statute that governs Arlington County and that is virtually identical to the language of the one that governs Fairfax County. That statute is section 15.1-687.3 (recodified at section 15.2-725; see Exhibit B).^2/ The language in question gave Arlington's Human Rights Commission the power to promote policies ensuring all persons were afforded equal opportunity and to "serve as an agency for receiving, investigating and assisting in the resolution of complaints from citizens of the county regarding discriminatory practices . . . ." Va. Code Ann. § 15.1-687.3.

The Attorney General concluded that this provision "gives the Arlington County board of supervisors authority . . . to include discrimination based on sexual orientation among the categories of discrimination that may be investigated by the County's human rights commission under its human rights ordinance." 1993 Va. Op. Att'y Gen. at 70. The Attorney General distinguished those counties governed by Virginia's general human rights statute, section 15.1-37.3:8 (recodified at Va. Code Ann. § 15.2-965; see Exhibit B), which does not expressly authorize the promotion of equal opportunity policies or the investigation of discriminatory practice and which limits counties to enacting anti-discrimination ordinances "not inconsistent with nor more stringent than any applicable state law." Like Arlington, however, Fairfax County is governed by a special human rights statute, rather than the general one, and its express authority is virtually identical to Arlington's.^3/

It is, then, surely clear from the plain language of section 15.2-853 of the Virginia Code, and the reasoning of the 1993 opinion of the Virginia Attorney General, that the Fairfax County Board has the legal authority to empower the Human Rights Commission to promote policies against discrimination on the basis of sexual orientation, and to receive, investigate, hold hearings, process, and assist in the voluntary resolution of complaints regarding sexual orientation discrimination.

II. AUTHORITY TO PROHIBIT DISCRIMINATION

Our review of the scope of municipalities' police power under Virginia law leads us to conclude that Fairfax County has authority under its police power to go beyond authorizing the Human Rights Commission to promote equal opportunity policies and investigate claims of discrimination and affirmatively to prohibit discrimination on the basis of sexual orientation.

We recognize that this conclusion differs from that reached by the Attorney General. See 1993 Va. Op. Att'y Gen. 68 (1993); 1985-86 Va. Op. Att'y Gen. 19 (1986); 1985-86 Va. Op. Att'y Gen. 16 (1985) (Exhibit C). Although due consideration is owed to Attorney General advisory opinions, such opinions are not binding on the legislature, courts, or municipal boards. See, e.g., City of Virginia Beach v. Virginia Restaurant Ass'n, 231 Va. 130, 135 (1986); Forest Hills Early Learning Ctr. v. Lukhard, 540 F. Supp. 1046, 1049 (E.D. Va. 1982), aff'd in part and vacated in part on other grounds, 728 F.2d 230, 243 n.14 (4th Cir. 1984).

In this instance, on the basis of the analysis set out below, we believe a court would not necessarily follow the Attorney General's view. Indeed, Arlington County, Alexandria, and Charlottesville all have elected to enact ordinances prohibiting discrimination on the basis of sexual orientation notwithstanding the Attorney General's opinions. See Arlington County, Va., Code § 31.3 (1997); Alexandria, Va., Code § 12-4-1 et seq. (1996); Charlottesville, Va., Code §§ 19-7, 22-11, 22-12 (1994) (municipal employment and contracting).^4/
 

Virginia follows the "Dillon Rule," under which a municipal corporation or other local government body has only those powers that are: (1) "granted in express words"; (2) "necessarily or fairly implied in or incident to the powers expressly granted"; or (3) "essential to the declared objects and purposes of the corporation." Stallings v. Wall, 235 Va. 313, 315-316 (1988). The Dillon Rule of construction, however, is fully consistent with broad police power when such powers are granted in express words or necessarily or fairly implied in or incident to the powers expressly granted.

In this case, broad police powers are in fact delegated. The terms of the statute limit Fairfax County's police power only in that it may not enact laws under its police power that are inconsistent with state law. See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 108-109 (1953) ("[D]ecision after decision has held that the delegated power of municipalities is as broad as the police power of the state, except as that power may be restricted by terms of the grant or by the state constitution.") (citing McQuillin, The Law of Municipal Corporations § 16.02 et seq. (3d ed. 1949)).

Consistent with the inclusive terms of the grant, the Supreme Court of Virginia has repeatedly explained that Virginia local governments' police power is "[v]ery broad and comprehensive." Elsner Bros. v. Hawkins, 113 Va. 47, 49 (1912). That power "`embraces regulations designed to promote the public convenience or the general prosperity as well as regulations designed to promote the public health, the public morals or the public safety.'" West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 282 (1937) (quoting Bacon v. Walker, 204 U.S. 311 (1907)); see also McMahon v. City of Virginia Beach, 221 Va. 102, 107 (1980) ("A local governing body must necessarily enjoy broad discretionary powers to protect the public health and general welfare of its residents."). Indeed, within its territorial limits, the local government's delegated police powers are "quite equal to those possessed by the legislature itself." Elsner Bros., 113 Va. at 50.^5/

Applying these principles, the Virginia Supreme Court has upheld a broad range of legislation under the police power. Among other things, the Supreme Court has concluded that a municipal authority may use its police power to enact ordinances that: require landowners with wells to connect with the municipal water supply system, McMahon, 221 Va. at 107; regulate the location of establishments selling alcoholic beverages, City of Norfolk v. Tiny House, Inc., 222 Va. 414, 420 (1981); prevent pawnbrokers from dealing in weapons that may be used for personal injury, Elsner Bros., 113 Va. at 52; require permits for the purchase of guns, Stallings, 235 Va. at 318; and prohibit the sale of alcohol near a school, Repass v. Town of Richlands, 163 Va. 1112, 1117 (1935).

Those cases in which the Court has held municipal acts to be beyond the scope of police power, by contrast, are very fact-specific. See, e.g., City of Virginia Beach v. Murphy, 239 Va. 353 (1990) (a municipality's police power authorizes it to criminalize public nuisances, but not mere private nuisances); White v. Town of Culpepper, 172 Va. 630 (1939) (same); City of Winchester v. Redmond, 93 Va. 711, 718 (1896) (no police power to offer reward for apprehension and conviction of incendiaries).

Importantly, the Fairfax County Circuit Court's conclusion in 1997 that Fairfax County did not have authority to ban certain firearms from recreation centers and other government buildings has no bearing on the scope of Fairfax County's police power. See Finnell v. O'Neill, Chancery No. 151722 (Fairfax County Cir. Ct. January 5, 1998). Rather, the court reached that decision on the basis of a provision in the Virginia Code that expressly prohibits localities from "adopt[ing] any ordinance to govern the purchase, possession, transfer, ownership, carrying or transporting of firearms." Va. Code Ann. § 15.2-915. No such prohibition exists here.

In construing the scope of municipal authority, the Supreme Court of Virginia has looked to the case law from other jurisdictions. See, e.g., King v. County of Arlington, 195 Va. 1084, 1089, 1093 (1954) (Wisconsin and Illinois); West Bros., 169 Va. at 282-289 (New York, Wisconsin, Oklahoma, Connecticut, Massachusetts). That case law supports the proposition that anti-discrimination legislation falls within municipalities' police power.

In Porter v. City of Oberlin, 205 N.E.2d 363 (Ohio 1965), the Supreme Court of Ohio held that a municipal ordinance prohibiting housing owners, real estate agents, and lending institutions from discriminating on the basis of race, color, or creed was a valid exercise of the police power. The court concluded that, "the police power clearly includes the power to prohibit the owner of property from discriminating, in its sale or rental or in the terms, conditions and privileges of such sale or rental, against any person purely because of race, creed or color." Id. at 368.

In Filippo v. Real Estate Commission, 223 A.2d 268 (D.C. 1966), the court similarly concluded that a fair housing ordinance was within the District of Columbia's police power. The court rejected the plaintiff's argument that "the scope of police regulations . . . is limited to public facilities such as streets and sidewalks, or to conditions which tend to cause injury to persons or property either by direct physical injury or by the creation of a nuisance." Id. at 271. Instead, the court concluded that the regulations were reasonable police regulations, targeted at poor housing conditions which are "productive of material discomfort and . . . endanger, disturb or incommode the people." Id. at 273.

In Hutchinson Human Relations Commission v. Midland Credit Management, Inc., 517 P.2d 158, 162 (Kan. 1973), the Supreme Court of Kansas concluded that "the enactment of a civil rights ordinance is a proper exercise of a municipality's police power as tending to promote the health, safety, convenience and general welfare of its citizens." See also Seattle Newspaper-Web Pressmen's Union v. City of Seattle, 604 P.2d 170, 174 (Wash. Ct. App. 1979) (Fair Employment Practices Ordinance is a valid exercise of the city's police power); Kentucky v. Beasy, 386 S.W.2d 444, 447 (Ky. 1965) (city's police power authorizes it to enact penal legislation prohibiting discrimination in places of public accommodation); Holiday Universal Club v. Montgomery County, 508 A.2d 991, 995 (Md. Ct. Spec. App. 1986) (passage of an ordinance prohibiting discrimination in public accommodations is a valid exercise of the county's police power).^7/

The very few cases holding that antidiscrimination ordinances exceed local power have so held for reasons that are inapplicable here. In 1964, the Nebraska Supreme Court struck down a municipal ordinance prohibiting racial discrimination in employment. See Midwest Employers Council v. City of Omaha, 131 N.W.2d 609, 616 (Neb. 1964). The court concluded that discrimination in employment was a matter of statewide concern and the state legislature had expressly declined to pass such legislation. Id. at 614-616. In Virginia, by contrast, employment discrimination is a proper subject of local regulation. See Va. Code Ann. §§ 15.2-725, -853, -965.

Also in 1964, the Supreme Court of Delaware struck down a local ordinance prohibiting discrimination by restaurants on the basis of race, color, or religion. See Mayor and Council of Wilmington v. Smentkowski, 198 A.2d 685, 686-687 (Del. 1964). The Court concluded that the ordinance conflicted with state law, which affirmatively granted restaurant keepers the "privilege" to select patrons on any grounds, including race and religion. Id. Virginia law does not affirmatively grant the privilege to discriminate on the basis of sexual orientation.^8/ Indeed, such a privilege would almost certainly violate the United States Constitution: a law that "impos[es] a broad and undifferentiated disability on a single named group" is "an exceptional and . . . invalid form of legislation." Romer v. Evans, 116 S. Ct. 1620, 1627 (1996) (striking down a state statute that "imposes a special disability upon [homosexuals] alone").

In 1944, the Supreme Court of Utah held that a local ordinance requiring restaurants to admit all "orderly people" could not be construed as a civil rights statute because the city lacked authority to enact such a statute. See Nance v. Mayflower Tavern, 150 P.2d 773, 774 (Utah 1944). That case involves an attempt to use a city ordinance as the basis for a private cause of action and is thus inapplicable here.^9/

In sum, the great weight of authority supports the position that antidiscrimination legislation is within municipalities' police power.

Moreover, such a determination is well-supported by the data about sexual orientation discrimination. Ample evidence exists that discrimination specifically based on sexual orientation undermines the health, safety and general welfare of the inhabitants of Fairfax County and may therefore be banned under the county's police power.

The Federal Bureau of Investigation, which collects statistics on hate crimes throughout the United States, reported that in 1996 more than 1,200 criminal offenses were based on sexual-orientation bias, a figure representing close to 12% of the total number of hate crimes reported. See Federal Bureau of Investigation, Press Release: Crime in the United States 1996 (visited Jan. 21, 1998) <http://www.fbi.gov/pressrel/hate96/hate.htm>. Similarly, in 1995 over 1,000 of all reported hate crime incidents -- nearly 13% -- involved sexual orientation. Fifty-one hate crime incidents of that type were reported in Virginia that year. See Federal Bureau of Investigation, Uniform Crime Reports: Hate Crime 1995 (visited Jan. 21, 1998) <http://www.fbi.gov/ucr/hatecm.htm>. In 1996 this figure increased to 55 incidents involving 60 offenders and 57 victims; four of these incidents resulted in injury or death to the victim. See Virginians for Justice & National Coalition of Anti-Violence Programs, Anti-Lesbian, Bisexual, Transgendered Violence in 1996 (1997). In addition, a single survey by the Arlington Gay and Lesbian Alliance in 1990 reported 22 incidents of sexual-orientation-based harassment and violence in that county. And one organization has reported 2,529 episodes of anti-gay harassment and violence in just 14 U.S. cities in 1996. See Parents, Families and Friends of Lesbians and Gays, Hate Crimes Fact Sheet (visited Jan. 21, 1998) <http://www.pflag.org/pom/hate.html> (citing National Coalition of Anti-Violence Programs, Anti-Lesbian/Gay Violence in 1996).

Clearly, continued discrimination based on sexual orientation threatens the health and safety of Fairfax County's gay and lesbian residents, as well as the county's general welfare. As the Supreme Court has emphasized, laws prohibiting discrimination on the basis of sexual orientation do not grant "special rights"; rather "[t]hese are protections taken for granted by most people either because they already have them or do not need them." Romer, 116 S. Ct. at 1627. Without any anti-discrimination ordinance in place, Fairfax County's gay and lesbians may not only be more likely targets of hate crimes but also be reluctant to report these crimes for fear that disclosure of their sexual orientation will lead to adverse employment and housing actions. This potential underreporting hurts Fairfax County's ability to protect against and punish violent attacks on its citizens.

Recognizing the threat that such bias poses, ten states and at least 165 cities and counties have used their police powers to outlaw sexual orientation discrimination in employment, housing, public accommodations, or all three. See National Gay and Lesbian Task Force, Employment Non-Discrimination Bill Introduced (visited January 21, 1998) <http://www.ngltf.org/press/enda2.html>; Human Rights Campaign, States, Cities and Counties Which Prohibit Discrimination Based on Sexual Orientation (visited April 10, 1998) <http://www.hrc.org/issues/workplac/nd/ndjuris.html>. Twenty-one states have modified their hate crime laws to include crimes based on sexual orientation. See National Gay and Lesbian Task Force, Hate Crime Laws in the United States December 1997 (visited Jan. 21, 1998) <http://www.ngltf.org/97cgal/hate.gif>

In support of the conclusion that local governments lack authority to prohibit discrimination on the basis of sexual orientation, opinions of the Attorney General have relied on the fact that local governments are expressly authorized to enact human rights legislation prohibiting discrimination on other grounds. See 1993 Va. Op. Att'y Gen. 68 (1993); 1985-86 Va. Op. Att'y Gen. 19 (1986); 1985-86 Va. Op. Att'y Gen. 16 (1985). As the Virginia Supreme Court has stressed, however, "the maxim that the mention of one thing implies the exclusion of another is an aid to statutory construction, not a rule of law." Gordon v. Board of Supervisors, 207 Va. 827, 833 (1967) (express authority to lend real property does not exclude by implication authority to lend money); see also Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 674 (1986) ("`[The] mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to the others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent.'") (internal citations omitted).

Where, as here, a local government derives its authority from its general police power, not from the statute enumerating specific grounds on which it can act, the enumeration of those grounds does not limit its preexisting general power. "[T]he passage of [a] subsequent statute [expressly granting a power] does not preclude the existence of the power hitherto, as is often evidenced by statutory enactment of the preexisting common law." Hopkins v. City of Richmond, 117 Va. 692, 703 (1915), overruled on other grounds by Irvine v. City of Clifton Forge, 124 Va. 781 (1918); accord Gordon, 207 Va. at 831.

Nor does local prohibition of sexual orientation discrimination conflict with Virginia's statewide prohibition of discrimination on the grounds of "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability." Virginia Human Rights Act, Va. Code Ann. § 2.1-715 (Michie 1995). A statute and an ordinance are not inconsistent and can coexist as long as "`the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required.'" Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231, 234 (1974) (quoting King, 195 Va. at 1090); see also Shaw v. City of Norfolk, 167 Va. 346, 353 (1937) ("There can be no conflict unless one authority grants a permit or a license to do an act which is forbidden or prohibited by the other."); Kisley, 212 Va. at 695 ("[a] local legislative body, in the exercise of its police powers, may forbid the doing of an act where State legislation is silent on the subject").

As noted above, Virginia plainly has not "licensed, authorized, or required" discrimination on the basis of sexual orientation, and such a license would almost certainly violate the United States Constitution. See Romer, 116 S. Ct. at 1627.^10/ Moreover, prohibiting sexual orientation discrimination may actually reinforce existing statutes, as it will remove an employer's ability to fire a gay or lesbian individual based on the pretext of sexual orientation when the actual motivation for discharge centers on the individual's race, gender, ethnicity, or other prohibited ground. Accordingly, a local ordinance prohibiting discrimination on the basis of sexual orientation is fully congruous with state law.

Consistent with this analysis, several states have concluded that municipalities may afford broader antidiscrimination protection than state law without creating a conflict. Courts have concluded, for instance, that municipalities may prohibit discrimination in employment-related practices that are not covered by state employment discrimination law, see Seattle Newspaper-Web Pressmen's Union, 604 P.2d at 173 (quoting Village of Struthers v. Sokol, 140 N.E. 519, 521 (Ohio 1923)) ("`No real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa.'"), or by actors not covered by state law, see New York State Club Ass'n v. City of New York, 505 N.E.2d 915, 921-922 (N.Y. 1987) (city ordinance permissibly prohibits discrimination in certain private clubs not covered by state antidiscrimination law), aff'd, 487 U.S. 1 (1988); Laborers' Int'l Union v. Burroughs, 541 So.2d 1160, 1161 (Fla. 1989) (county may prohibit discrimination by small employers not covered by state law; state legislature left this area open to local regulation). Indeed, Fairfax County's own human rights ordinance prohibits discrimination by employers who employ four or more persons, see Fairfax County, Va., Code § 11-1-2(11) (1991), while state law prohibits discrimination by employers employing more than five persons, see Va. Code Ann. § 2.1-725(B).

Fairfax County is authorized to "provide for all the governmental functions of the locality, including, without limitation, the organization of all departments of government which are necessary and the employment of officers and other employees needed to carry out the functions of government." Va. Code Ann. § 15.2-1500.

Fairfax County is further required to have "a grievance procedure for its employees that affords an immediate and fair method for the resolution of disputes which may arise between the public employer and its employees." Va. Code Ann. § 15.2-1506. A grievance is defined as "a complaint or dispute by an employee relating to his employment, including but not necessarily limited to . . . discrimination on the basis of race, color, creed, religion, political affiliation, age, disability, national origin or sex." Va. Code Ann. § 15.2-1507 (emphasis added).

Fairfax County's power to "provide for . . . without limitation . . . the employment of officers and employees" and to hear grievances "including but not necessarily limited to" discrimination on enumerated grounds authorizes it to prohibit discrimination on the basis of sexual orientation in county employment. See City of Atlanta v. McKinney, 454 S.E.2d 517, 522 (Ga. 1995) (upholding under police power and power to regulate municipal employees a city ordinance prohibiting sexual orientation discrimination in city employment).^11/

IV. CONCLUSION

For the foregoing reasons, we conclude that the Fairfax County Board has the legal authority to take the following three actions: first, to authorize its Human Rights Commission to promote policies to ensure equal opportunity for all citizens regardless of their sexual orientation, as well as to investigate complaints of discrimination based on sexual orientation and assist in their voluntary resolution; second, to pass an ordinance prohibiting discrimination in housing, real estate transactions, employment, public accommodations, credit, and education on the basis of sexual orientation; and third, to prohibit discrimination on the basis of sexual orientation in county employment and contracting.

Very truly yours,

David B. Isbell

Adam E. Pachter

Attachments

Footnotes:

^1/ The Commission's investigative power is limited only in that it cannot issue or request subpoenas while investigating discrimination based on sexual orientation.  See Va. Code Ann. §§ 15.2-853 to -854.
^2/ The only real difference between the two is that Arlington does not have a list of specific grounds for which it is expressly authorized to prohibit discrimination.  With respect to investigatory authority, however, the relevant wording is almost exactly the same.  The Fairfax County Commission is authorized to "serve as an agency for receiving, investigating, holding hearings, processing and assisting in the voluntary resolution of complaints regarding discriminatory practices. . . ."  Va. Code Ann. § 15.2-853.  The Arlington County Commission is authorized to "serve as an agency for receiving, investigating and assisting in the resolution of complaints from citizens of the county regarding discriminatory practices. . . ."  Id. at § 15.2-725.
^3/ The Attorney General did opine that Arlington's authority in this area was "not shared by other jurisdictions."  1993 Va. Op. Att'y Gen. at 70.  This statement, however, is simply mistaken.  Although most Virginia jurisdictions do not have such express authority, Fairfax County has a grant of authority almost identical to Arlington's.
^4/ In addition, Virginia Beach has adopted an administrative policy, enforced by its Director of Human Resources, prohibiting discrimination on the basis of sexual orientation in city employment.  See Virginia Beach, Va., Policy 6.06 (1995).  The Virginia Attorney General has opined that municipalities lack authority to prohibit discrimination on the basis of sexual orientation in city employment and contracting.  See 1985-86 Va. Op. Atty. Gen. 19.
^5/ In Elsner Brothers, the Court construed the police powers delegated to Richmond in its city charter.  The Court subsequently concluded that towns and cities are granted power "at least as broad as the general grant of police power relied upon in Elsner Brothers."  Stallings, 235 Va. at 318.  The police power granted to counties is similarly broad.  See Va. Code Ann. § 15.2-1200.
^6/ In Hopkins v. City of Richmond, 117 Va. 692, 697 (1915), overruled in part by Irvine v. City of Clifton Forge, 124 Va. 781 (1918), the Virginia Supreme Court concluded that municipalities' police power authorized them to enact segregation ordinances.  Hopkins has, of course, been overruled on the ground that segregation ordinances violate the federal constitution.  See, e.g., Dawson v. Mayor and City Council of Baltimore City, 220 F.2d 386 (4th Cir.), aff'd, 350 U.S. 877 (1955).  The Court's conclusion that an ordinance is a valid exercise of the police power if it "tend[s] to promote peace and good order," 117 Va. at 703, retains its authority, however, and that conclusion supports the enactment of antidiscrimination legislation under the police power.
^7/ In McCrory Corp. v. Fowler, 570 A.2d 834, 840 (Md. 1990), the Maryland Court of Appeals held that a local government lacked authority to create a private cause of action in employment discrimination matters.  The Fourth Circuit has held that the Fairfax County Human Rights Ordinance does not create a private cause of action.  See Lawrence v. Mars, Inc., 955 F.2d 902, 907 (4th Cir. 1992).
^8/ Until 1993, Virginia had laws on the books authorizing the revocation of an alcohol license from establishments that had become "a meeting place or rendezvous for . . . homosexuals"  and prohibiting holders of alcohol licenses from employing "any person who has the general reputation as a . . . homosexual."  Va. Code §§ 4-37, 4-98.10, 4-114 (repealed 1993).  Those sections were repealed in 1993, 1993 Va. Acts, ch. 866, and previously had been held unconstitutional and unenforceable, see French Quarter Cafe v. Hampton, Civ. A. No. 91-1180-A (E.D. Va. Oct. 23, 1991).
^9/ See supra note 5.  Moreover, in support of the city's authority to enact such a statute, the plaintiff in Nance relied in part on the city's power to license restaurants and other businesses.  The court rejected that argument, reasoning that "[e]ven the most liberal civil rights statutes do not purport to embrace many of the types of businesses" over which the city had licensing authority, including loan agencies, employment agencies, laundries, and barber shops.  150 P.2d at 775.  The view that certain types of businesses are not and cannot be subject to civil rights legislation is, of course, obsolete.
^10/ To the extent that Bowers v. Hardwick, 478 U.S. 186 (1986), which narrowly upheld an anti-sodomy criminal statute against constitutional attack, remains good law, see Romer, 116 S. Ct. at 636, 640-42 (Scalia, J., dissenting), it is inapposite.  Forbidding a specific act of homosexual conduct, which Bowers did, is entirely different from licensing discrimination of the basis of sexual orientation or status, which Romer forbids.
^11/ In Commonwealth v. County Board, 217 Va. 558, 577, 581 (1977), the Virginia Supreme Court held that a county's power to hire employees and to fix the terms and conditions of their employment did not include the power to bargain collectively with its employees.  In support of that conclusion, the Court relied on extensive legislative history establishing the Virginia legislature's "clear and unambiguous" intent to foreclose collective bargaining.  Id. at 564-565, 577-578.  As noted above, we are aware of no legislative history indicating that the legislature expressly intended to foreclose prohibition of sexual orientation discrimination, and such an intent would raise substantial questions under the federal constitution.  See Romer, supra.