Hours after the dust settled in the halls of Congress over a contentious fight to repeal the controversial “Don’t Ask, Don’t Tell” military policy that prevented gays from serving openly in the U.S. military, the issue has resurfaced anew on a new battleground: Virginia.
State Del. Bob Marshall (R-western Loudoun and Prince William) announced that he is drafting state legislation “barring active homosexuals” from Virginia’s National Guard units, even as President Obama signed the repeal of the policy into law Dec. 22 at the White House.
Marshall, one of Virginia’s most activist – and controversial - lawmakers on social and legal policies, acted almost immediately after both the U.S. House and Senate voted in large majorities to rescind a 17-year policy of disallowing gays and lesbians from serving in the U.S. armed forces. Virginia’s National Guard units operate independently of Federal control and are supervised by state governors.
“With the repeal of ‘don’t ask, don’t tell,’ President Obama seeks to pay back his homosexual political supporters,” Marshall said in a statement. “This policy will weaken military recruitment and retention, and will increase pressure for a military draft,” and he alleged that Congress was “conducting a social experiment with our troops and our national security.”
The conservative state lawmaker said he will file legislation when the General Assembly convenes for its 2011 session to “ensure that the effect of the 1994 federal law banning active homosexuals from America’s military forces will apply to the Virginia National Guard.”
Marshall said that Article 1, Section 8, Clause 16 of the Constitution gives Virginia the ability to adapt the ban because it states: “reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline proscribed by Congress.”
The National Guard units operated by states are the modern-day equivalent of the militias that date to Colonial times.
But Marshall’s nascent efforts hit a giant roadblock in the form of the administration of Gov. Bob McDonnell, a fellow Republican, on Dec. 20.
Tucker Martin, McDonnell’s spokesperson, said in a statement: “The Governor…knows it is critically important that there be one set of rules for all our men and women in the military, since uniformity of major policy across all branches is essential to effective operations. We are not aware of a single instance in recent history where the Virginia National Guard has not complied with the policies and procedures of the Department of Defense…In his role as Commander in Chief of the Virginia National Guard, Governor McDonnell expects the Guard to adhere to the final guidelines implemented by the Department of Defense.”
Given McDonnell’s opposition, Marshall’s chances for success become even more questionable in the House of Delegates, despite its GOP control. With control of the state Senate in the hands of Democrats, passage is even less likely.
One Loudoun lawmaker, state Del. Thomas “Tag” Greason (R-eastern Loudoun), echoed McDonnell’s concerns over having a uniform military code governing U.S. armed forces and states’ National Guard units. He told the Times-Mirror Dec. 22 he would oppose Marshall’s bill.
“I don’t believe we should have two separate standards for our military…one for our National Force and one for the Commonwealth,” Greason said in a statement Dec. 22. “If the individual is capable and meets the physical and mental requirements to do their job in an exceptional way, he or she should be allowed to serve, regardless of their gender, race or sexual orientation…No groups should be discriminated against.”
Greason’s position is noteworthy as he is a graduate of the U.S. Military Academy and also served in the Army as well as the Virginia National Guard.
State Sen. Mark Herring (D-eastern Loudoun and western Fairfax), who is the co-chairman of the Virginia General Assembly’s National Guard Caucus, issued a broadside against Marshall’s effort on Dec. 20.
“The era of discrimination in our Armed Forces has come to an end,” Herring stated. “It is unfortunate that Delegate Marshall continues to try to prevent patriotic Virginians from serving their country and their commonwealth.”
“The citizens of Loudoun County and all Virginia deserve better from their representatives. It is time for Delegate Marshall, and those who would support discrimination in our National Guard, to move on and focus instead on other difficult challenges facing our commonwealth,” added Herring.
Both the ACLU of Virginia and Equality Virginia – a gay-rights organization – attacked Marshall’s plan.
The ACLU threatened an immediate legal challenge if the bill were to be adopted by the General Assembly, calling the proposal “unconstitutional.” The ACLU cited several instances in recent case law where federal courts have struck down “Don’t Ask, Don’t Tell”, and the group said the policy was weak on “equal protection and due process grounds.”
Claire Gastanaga, legislative counsel for Equality of Virginia, challenged Marshall’s assertion that the state legislature could impose a “Don’t Ask, Don’t Tell” policy on National Guard units, mirroring one of McDonnell’s arguments against the proposal.
“The National Guard is a federal military unit which is subject to the same rules as other federal military units,” Gastanaga said in a statement Dec. 20. “Any state statute seeking to set different standards for the Virginia National Guard would be a nullity with no effect.”
Equality Virginia also took a sharp aim at Marshall.
“It is a shame that Delegate Marshall would dishonor the brave men and women serving in our National Guard by seeking to make political points at their expense and waste the time of his colleagues in the Virginia General Assembly who have pressing matters to attend to like balancing the budget and finding solutions to traffic problems that are the real and present concern of his constituents.”
The “Don’t Ask, Don’t Tell” policy has received widespread scrutiny at the federal level in recent months as Congress considered its repeal.
Defense Secretary Robert Gates – a Republican appointee from the administration of President George W. Bush - has advocated against it. In testimony before the Senate Armed Services Committee, four of the five military commanders of the branches of the U.S. armed forces stated their belief that the policy should immediately or eventually be repealed.
In the vote on the Senate floor, eight Republican U.S. Senators – conservatives and moderates – voted to rescind the measure. Both Virginia Senators, Jim Webb and Mark Warner – Democrats – sided with the majority favoring repeal.
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