- The Washington Times - Sunday, December 19, 2010

Responding to the federal repeal of the military policy banning open gays from serving in the armed forces, a state lawmaker in Virginia plans to fight back with legislation that bars “active homosexuals” from serving in the Virginia National Guard.

Delegate Robert G. Marshall said the Constitution reserves states with the authority to do so and that he’ll introduce a bill in the state General Assembly next year that ensures the “the effect of the 1994 federal law banning active homosexuals from America’s military forces will apply to the Virginia National Guard.”

“With the repeal of ‘don’t ask, don’t tell,’ President Obama seeks to pay back his homosexual political supporters,” the Prince William County Republican said, echoing a sentiment shared by many of the repeal’s most ardent opponents. “This policy will weaken military recruitment and retention, and will increase pressure for a military draft.”

“The Constitution never would have been ratified if states were not [guaranteed] unqualified control of the militia, now called the National Guard,” he said.

But Claire Gastanaga, legislative counsel for Equality Virginia, a gay-rights group, said the National Guard is a federal military unit subject to the same rules as other federal military units and that “any state statute seeking to set different standards for the Virginia National Guard would be a nullity with no effect.”

“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 the traffic problems that are the real and present concern of his constituents,” she said.

Mr. Marshall announced his plans shortly after eight Senate Republicans joined almost all the chamber’s Democrats to repeal the ban on a 65-31 vote, setting up the end of the 17-year-old “don’t ask, don’t tell” policy.

The next step will be for the military to complete a readiness review and for Mr. Obama, Defense Secretary Robert M. Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen to certify - as expected - that the change won’t hurt readiness or unit cohesion.

The fallout from the vote continued on Sunday’s political talk shows, with both parties returning to familiar arguments. Republicans noted that three of the four service chiefs have expressed reservations about repeal, while Democrats said the policy was a blot on the nation’s reputation and that the repeal was a long-overdue push toward equality.

“This shows me that America has come to a point where it understands that sexual orientation should not be used against you,” Sen. Richard J. Durbin, Illinois Democrat, said on “Fox News Sunday.”

The “don’t ask, don’t tell” policy was issued by the Defense Department under President Clinton as a compromise way of enforcing the ban on homosexuality in the ranks that had existed in one or another form for decades but which Congress voted to make a part of the law in 1993.

Since then, more than 14,000 troops have been dismissed under the ban, some of whom took vocal roles in the repeal effort.

A leading figure in Virginia’s conservative circles, Mr. Marshall is “seriously” considering a 2012 bid for the U.S. Senate seat held by Democrat Jim Webb, who supported repeal. In 2008, he narrowly lost his bid to be the party’s U.S. Senate nominee to former Gov. James S. Gilmore III at the Republican convention.

But the near upset underscored how his political stock has risen in recent years, in which he’s been involved in some of the state’s most high-profile legislative and legal battles.

In 2006, he spearheaded the push to get on the ballot an amendment to the state constitution defining marriage as the union of a man and a woman. In 2008, he led a successful state-constitution challenge to a bipartisan transportation deal brokered that had handed an unelected body the power to levy taxes to raise millions of dollars for road projects in Northern Virginia. This year, he sponsored the bill that challenged the federal government’s authority to mandate that every resident purchase health insurance.

The law helped give the state attorney general’s office the necessary legal standing to challenge the federal health care overhaul in court. Last week, a federal judge in Virginia ruled in the state’s favor, striking down key parts of the health care law.

The ruling marked the first dent in the president’s signature initiative and another legal victory for Mr. Marshall.

Now his sights are set on the “don’t ask, don’t tell” repeal.

“President Obama and a majority in Congress are conducting a social experiment with our troops and our national security while Americans in uniform are fighting wars in Iraq and Afghanistan and, indeed, might be called into battle in Korea,” he said.

“In countries where religions and cultures find homosexual acts immoral, the Obama administration’s repeal policy will work to the detriment of all American troops in securing local cooperation with our nation’s foreign-policy goals,” he said.

Though the “don’t ask, don’t tell” policy and the statutory ban date only from the 1990s, Mr. Marshall argues that it really tosses aside 232 years of American military tradition, saying “the practice of barring homosexual participation in the armed forces dates back to the American Revolution, when Gen. George Washington commanded the Continental Army.”

“Gen. Washington did not tolerate personal behavior by his troops that was incompatible with the character traits he expected from his soldiers in exercising their military duty,” he said. “In March of 1778, Washington discharged, via public rebuke, a soldier who had attempted a homosexual act with another soldier and then lied about it under oath.”

• Seth McLaughlin can be reached at smclaughlin@washingtontimes.com.

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