Va. AG: Banning Gays From Guard Would Cost State$$$$$$

RICHMOND, Va. (AP) -- Virginia would have to establish and fully fund its own independent militia if it wanted to ban gays from its National Guard force, Attorney General Kenneth Cuccinelli says.

Cuccinelli issued an advisory opinion earlier this week at the request of Del. Bill Janis, R-Henrico, who asked whether the legislature can order the Virginia National Guard to continue the "don't ask, don't tell" policy recently repealed by Congress.

Cuccinelli said he could not give a detailed answer to the question until federal regulations repealing the policy are issued. But regardless of how those regulations are written, he said, Congress pays most the Guard's costs and can yank funding for noncompliance with federal policy.

"Should the General Assembly wish to evade the conditions attached to federal funding, the General Assembly can raise, equip and fund an independent Virginia militia entirely from state revenues," Cuccinelli said.

Janis requested the opinion after Del. Bob Marshall, R-Prince William County, introduced legislation to ban gays from the Virginia National Guard. Marshall says repeal of "don't ask, don't tell" would weaken military recruitment and retention and increase pressure for a military draft.

"It won't serve the people of the United States and it won't serve those who have dedicated their lives to service," Marshall said Friday. "I have military people who are mad as hell about this."

Marshall said Cuccinelli's opinion "is speculation of a rather odd variety" and that determining eligibility for a state militia is not among the "enumerated powers" the Constitution reserves for Congress. He said Cuccinelli is "making this up for political cover" for fellow Republicans who don't want to have to take a position on the issue.

The don't ask, don't tell policy, implemented in 1993, allowed gays and lesbians to serve, but only if they were silent about their sexual orientation. Previously, recruits who stated that they were gay on a questionnaire were denied entry into the military.

Cuccinelli said in his opinion that the nation's state militias evolved over the years into a "dual enlistment system" in which National Guard members "are both members of the organized militia and a reserve component of the armed forces of the United States."

A key aspect of the system, he said, is that the federal government provides virtually all of the funding. The dual enlistment system and the spending power of Congress "has meant in practice that Congress set the standards and policy for state Guard units," Cuccinelli wrote.

Marshall's legislation is pending in the House Rules Committee. He said he has not been told when the committee will act.

Republican Gov. Bob McDonnell has said that while he opposes gays openly serving in the military, he opposes Marshall's bill because he believes the Virginia National Guard should comply with federal policy.

By LARRY O'DELL
Associated Press