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Posted at 1:30 PM ET, 01/28/2011

Cuccinelli: Too soon to say if Va. could impose ban on gays in state guard

By Rosalind S. Helderman
Rosalind S. Helderman

Virginia Attorney Gen. Ken Cuccinelli (R) has concluded that he cannot yet fully determine if Virginia could constitutionally retain a 'Don't Ask Don't Tell' policy for gays serving in the Virginia National Guard because the federal government has not yet published its rules for ending the practice.

Cuccinelli's carefully written legal opinion comes in response to an inquiry about a bill filed this year by Del. Bob Marshall (R-Prince William), who has suggested that Virginia impose its on ban on gays, now that the U.S. Congress has repealed the law that banned gays from serving openly in the military.

Cuccinelli was asked by Del. Bill Janis (R-Goochland) whether such a proposal would be constitutional.

Cuccinelli responded that the U.S. Constitution reserves to the states the power to appoint and terminate officers of their state militias. However, courts have upheld a dual system for National Guards, in which service members serve simultaneously in their state guards and in what's called the National Guard of the United States, which allows guard units to participate in federal military actions.

The U.S. Defense Department sets policy for the National Guard in such situations and could revoke national membership for troops serving under different policies than those used by the rest of the military, he writes.

Additionally, courts have said Congress can condition federal funding for National Guard units on following federal policy and Congress would be within its rights to withhold federal funding for Virginia's guard if it did not abide by federal policy. The state receives extensive federal funding for its guard.

Here's the meat of his conclusions:

I am unable to answer your questions because the federal regulations repealing DADT have not been issued. Regardless of what form those regulations take, the Constitution expressly reserves to the States the power to appoint officers to the state militias, and that includes the modern National Guard. The power to determine which state Guard officers are eligible for service in the overlapping National Guard of the United States, however, rests with Congress. Moreover, Congress, through its spending power, can condition the use of federal funds on the States' acceptance of DADT. Should the General Assembly wish to avoid the conditions attached to these funds, it can raise, equip and fund an independent Virginia militia entirely from state revenues.

The General Assembly hasn't shown any particular interest in setting aside the millions it would need to fund its own guard--nor has it shown a lot of enthusiasm for Marshall's bill, HB2474. It has been assigned to the House Rules committee, often the sign of a piece of legislation that will die a quiet death before the end of the legislative session.

By Rosalind S. Helderman  | January 28, 2011; 1:30 PM ET
Categories:  General Assembly 2011, House of Delegates, Ken Cuccinelli, Rosalind Helderman, State Senate  
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Next: UPDATED: Cuccinelli says state grants to charities are unconstitutional

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