RICHMOND, Va. (AP) – Orders outgoing Gov. Mark R. Warner and Gov. Timothy M. Kaine issued banning job discrimination against gays and lesbians by state agencies are unconstitutional, Attorney General Robert F. McDonnell has ruled.

In a seven-page legal opinion, the Republican attorney general said the two Democratic governors illegally altered state public policy by treating gays and lesbians as a protected class of employees.

Kaine, a lawyer, said he had “some grave doubts” about the opinion’s legal accuracy and would not rescind it.

“I’m not going to tell my agency heads and cabinet secretaries that they’re now free to discriminate,” Kaine said.

McDonnell issued his ruling at the request of Del. Robert F. Marshall, R-Prince William, a sponsor last year of a proposed constitutional amendment to ban same-sex marriage and a frequent author of anti-abortion legislation.

“The governor, on his own, can’t just make public policy,” Marshall said.

“First, there’s been no demonstration that homosexuals, as a class, are subjected to discrimination,” he said. “Second, I see it as a way to give legal status to sodomy and other practices homosexuals engage in.”

McDonnell, however, argued that the opinion was not about sexual orientation or practices but the scope of executive fiat.

“If this order was about puppies, it would have the same result,” said J. Tucker Martin, McDonnell’s press secretary. “It’s not so much an opinion about sexual orientation; it is about the separation of powers.”

Martin said such a policy can’t be set without legislative approval.

The attorney general’s opinion does not have the force of law, nor is it binding on Kaine. It could, however, serve as a basis for a lawsuit to overturn the order.

“I guess somebody who felt wounded by this could try to file some suit ordering me to allow people to discriminate, but I would find that to be kind of weird,” Kaine said.

Sixty of the 100 members of the House of Delegates and 24 of the 40 senators have either issued statements or signed pledges that sexual orientation would not figure into whom they employ on their legislative staffs.

Kaine’s office said 14 of the 19 Fortune 500 corporations based in Virginia have sexual orientation discrimination bans in effect, as do eight of the state’s top 10 employers.

U.S. Sens. John W. Warner and George Allen, both Republicans, have a similar policy, as did McDonnell’s predecessor, Republican former Attorney General Jerry W. Kilgore. Kilgore lost last fall’s governor’s race to Kaine.

“The idea that the governor can’t set a policy for state employees that the majority of legislators themselves have embraced makes no sense,” Mark Warner said in a one-paragraph statement.

Warner banned job discrimination against gays and lesbians by state agencies on Dec. 16, less than a month before he left office. Kaine put the same provisions in the first executive order of his term, issued Jan. 14, moments after he finished his inauguration speech in Williamsburg.

Kaine said that as head of the executive branch of government, he has the right to set the personnel practices for executive branch agencies, but acknowledged that his order does not affect the legislative and judicial branches.