The Virginia National Guard could still exclude gays from service once federal regulations repealing the military's "don't ask, don't tell" policy are issued, but it would likely lose its lifeline of federal funding, according to an opinion issued by Attorney General Ken Cuccinelli.
The opinion, released Friday, came in response to a request by Del. William R. Janis, R-Henrico, and on the heels of House Bill 2474, submitted by Del. Robert G. Marshall, R-Prince William, that would keep in force the current "don't ask, don't tell" policy in the Virginia National Guard.
Cuccinelli issued another opinion Friday advising that two budget amendments proposed by Gov. Bob McDonnell — providing a total of $1 million in funds to two charities — were unconstitutional.
Janis wanted to know whether the Virginia General Assembly has authority to mandate a continuation of "don't ask, don't tell." Cuccinelli said that he was unable to specifically address the issue because the federal regulations repealing the policy have yet to be issued.
However, he said that while the states have the power to appoint officers to the state militias, including the modern National Guard, the power to determine which Guard officers are eligible for service in the overlapping National Guard of the United States rests with Congress.
Cuccinelli said Congress, through its spending power, can condition the use of federal funds on a state's acceptance of "don't ask, don't tell." "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 opinion said.
That prospect is unlikely, say officials, given that the overwhelming majority of funding for state guards is provided by the federal government.
After Marshall proposed his bill, the gay-rights advocacy group Equality Virginia said on its website that "any state statute seeking to set different standards for the Virginia National Guard would be a nullity with no effect."
Cuccinelli said that amendments proposed by McDonnell — donating $500,000 each to the medical humanitarian group Operation Smile and to the Federation of Virginia Food Banks — are not permitted under the Virginia Constitution.
He observed that the law does not categorically prohibit payments to charities from the state, such as a state program that pays money to a nonprofit hospital to render services to the indigent. But he said the appropriations are improper because the Virginia Constitution prohibits the direct appropriation of state funds, personal property or real estate to any charitable institution not owned by the state.
"The question is not whether these amendments serve noble purposes," Cuccinelli wrote in his response to a request for a ruling by Del. John M. O'Bannon III, R-Henrico. "The question is one of fidelity to the text of our Constitution. And where the Constitution commands or forbids, the government must obey."
McDonnell press secretary Jeff Caldwell said the governor "appreciates the attorney general's efforts to provide legal clarity to this issue.
"As the opinion outlines, this is a practice of the General Assembly that has existed for many years." Caldwell said the administration will conduct an in-depth review of the issue.
jnolan@timesdispatch.com
(804) 649-6061
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