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Posted at 12:16 PM ET, 12/29/2010

Democrat counters Marshall on Va. National Guard with bill to confirm gays can serve

By Rosalind S. Helderman
Rosalind S. Helderman

A Richmond-area delegate is proposing a bill that would codify in state law that the Virginia National Guard is subject to the same eligibility requirements as the U.S. military, a proposal designed to ensure that gays and lesbians can serve openly in the Guard once the Defense Department completes the process of repealing the federal "Don't Ask, Don't Tell" policy.

The legislation, proposed by Del. Joseph D. Morrissey (D-Richmond), is intended to counter a bill that will be filed by Del. Robert G. Marshall (R-Prince William) that would declare that gays cannot serve in the Virginia National Guard, regardless of Congress' vote this month to repeal the policy.

"It's a Neanderthal, backwards policy proposed by Del. Marshall and it has no place in Virginia," said Morrissey at a morning news conference. "To say that it's outrageous would be an understatement."

Morrissey says that Marshall's bill is illegal because the U.S. Constitution gives Congress the power to organize, arm and discipline state militias.

If he's right, it would mean his own legislation is legally unnecessary. But Morrissey said he thought it was important to push back against Marshall's proposal.

"Sometimes, as I've seen in my three years in the General Assembly, it's important that we codify what is required of Virginians vis-รก-vis federal law," he said.

Plus, he's raising the political stakes in the fight over the Guard, wagering that Marshall's proposal will be widely unpopular. A number of public opinion polls have indicated that citizens wanted DADT repealed.

At his news conference, Morrissey also issued a direct challenge to Virginia Attorney Gen. Ken T. Cuccinelli (R), who has said that he's been guided in his first year in office by strict adherence to the language of the Constitution. Morrissey dared Cuccinelli to repudiate Marshall's reading of the Constitution, which would give states wide latitude in the control of their Guard units.

"I should note that the attorney general so far in his term has taken great pains to maintain fidelity to the Constitution," Morrissey said. "Here is a clear example where legislation could not be more diametrically opposed and inconsistent with the Constitution. This is an area for him to come forward and say this legislation has no legal efficacy or basis in law."

Gov. Bob McDonnell (R), commander in chief of the Guard, has said he disagreed with Congress' decision to repeal DADT but that the Virginia National Guard should follow the same rules as the rest of the military.

Cuccinelli's office has indicated that he will review Marshall's legislation after it is filed. The General Assembly will consider both bills when it convenes next month.

By Rosalind S. Helderman  | December 29, 2010; 12:16 PM ET
Categories:  Barack Obama, Bob Marshall, Ken Cuccinelli, Rosalind Helderman  
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