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The Virginia National Guard could exclude gays from service once federal regulations repealing the military's "Don't Ask, Don't Tell" policy are issued, but the federal government would have the ability to condition its funding of the state guards on compliance with the new rules, according to an opinion issued by Virginia Attorney General Ken Cuccinelli.
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The opinion released today came in response to a request by Del. William R. Janis, R-Henrico, and on the heels of legislation submitted by Del. Bob Marshall, R-Prince William that would keep in force the current "Don't Ask, Don't Tell," policy in the Virginia National Guard.
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[T]he attorney general 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 the U.S. Congress.
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Further, Cuccinelli said that Congress, through its spending power, "can condition the use of federal funds on a State's 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 opinion concludes.
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That prospect is unlikely, say officials, given the fact that the overwhelming majority of funding for state Guards is provided by the federal government.
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