A proposal to ban gays from serving openly in the Virginia National Guard was struck down last Tuesday in the House Rules panel of the Virginia General Assembly. Del. Bob Marshall, R-Prince William, sponsored the ban in response to the U.S. Senate's Dec. 18 repeal of the military's "Don't ask, Don't tell" policy. The repeal will allow gays and lesbians to serve openly in the military for the first time.
Marshall said his legislation, which would have retained DADT in the Virginia Guard, was an attempt to "continue the prohibition that's been the rule for the United States military since 1778."\nDel. Joseph Morrissey, D-Charles City, objected to Marshall's proposal.
"It's a Neanderthal outlook to suggest that gay Virginians would not make good or great soldiers," Morrissey said. "That type of legislation is a throwback to 60 or 70 years ago and has no place in a progressive Virginia."
To counter Marshall's measure, Morrissey sponsored a bill that would have required the Guard to follow federal recruitment standards. After the committee rejected Marshall's proposal, however, Morrissey's bill was removed from the docket.
"I think [the panel] wanted to prevent me from having my opportunity to say how mean-spirited and disparaging and churlish it was to even suggest we ought not to let gays serve in the army," Morrissey said. "That didn't work, because I came right back the next day, and I gave a 10-minute floor speech on it."
Morrissey said Marshall's proposed ban had "no legal efficacy" and would have been struck down by a federal district court had it been signed into law. He claimed it was unconstitutional because it would have violated Congress's right to control militia.
As justification for his bill, however, Marshall cited Article 125 of the Uniform Code of Military Justice, which makes sodomy an offense punishable by court-martial.
"When you have active male homosexuals, the presumption is, that's the behavior they're engaging in," he said.
Seth Kaye, co-president of Queer and Allied Activism, rejected this assumption. He argued that soldiers do not engage in sexual activity on the job; rather, they focus solely on their work.
Last week Virginia Attorney General Ken Cuccinelli commented on the legality of continuing DADT within the Virginia National Guard. He stated in a press release that, should the General Assembly wish to "evade the conditions attached to federal funding," it could forfeit the $200 million of federal money and "raise, equip and fund an independent Virginia militia entirely from state revenues."
Both Marshall and Morrissey criticized Cuccinelli's statements, though for different reasons.
Marshall said he thought Cuccinelli's action to make money the object of discussion was "to run from the battlefield before anyone steps into it."
"I mean, what the hell is he doing?" Marshall said. "Does he really think the Republicans in Congress who voted against [the repeal of DADT] are going to force Virginia to enforce this?"
Morrissey found Cuccinelli's suggestion "outrageous" and neglectful of some of the state's population.
"Instead of trying to find an avenue to prevent gays from serving, how about upholding the rule of law as attorney general?" Morrissey said. "And the rule of law says that [the] National Guard, i.e. militia, must follow the dictates of Congress. And Congress says gays shall serve ... Attorney General Cuccinelli must realize he's the attorney general for all Virginians, not just straight Virginians."
Kaye said he was surprised Cuccinelli's idea even entered the public discourse.
"No one wants to pay for a private militia when we have a national one that's just fine," he said.
Morrissey described the right of gays to serve openly in the armed forces as a matter of dignity.
"There's many of us, including myself, who believe one's sexual orientation has nothing to do with whether one would make a good soldier, lawyer, doctor or any other profession," he said.
Marshall said he plans to continue his efforts to prevent gays from serving openly in the Guard and already has submitted a budget amendment proposing the same measure.
"I wish Del. Marshall the same success with his budget amendment that he's had with his other bill to ban gays from the Virginia National Guard, which was zero," Morrissey said.
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