Letter to Delegate Robert Marshall concludes that proposed law would invite litigation on equal protection and due process grounds.

Richmond, VA – The ACLU of Virginia today advised Delegate Robert Marshall against introducing a bill that would prohibit gay men and lesbians from serving in the Virginia National Guard.  Marshall announced his plan to draft legislation for the 2011 General Assembly after Congress voted to repeal ‘Don’t Ask, Don’t Tell,’ last weekend.
The civil liberties group warned the controversial delegate from Prince William County that such a bill would be challenged in court, should it become law.
“Not only is Delegate Marshall’s proposal an affront to gay men and lesbians throughout the state,” said ACLU of Virginia Executive Director Kent Willis, “but it will surely be ruled unconstitutional before it is ever implemented.”
“A federal court recently declared ‘Don’t Ask, Don’t Tell’ to be unconstitutional, and Congress has now repealed that antiquated law,” added Willis.  “Delegate Marshall is outflanked on this one and would only be wasting taxpayers’ dollars and the General Assembly’s time by pushing this legislation.”
According to the ACLU’s letter, which was faxed to Delegate Marshall earlier today, a court challenge could be brought on several different fronts.  Earlier this year, in Log Cabin Republicans v. United States, a federal court in California struck down ‘Don’t Ask, Don’t Tell’ on substantive due process grounds, holding that individuals in the military have a degree of personal autonomy that includes “freedom of thought, belief, expression and certain intimate conduct.”  The reasoning of this case could be used by a federal court in Virginia.
In addition, the letter states that the U.S. Supreme Court has ruled in Romer v. Evans that, with few exceptions, the government violates the equal protection clause of the Constitution whenever it implements policies that discriminate against gay men and lesbians.  The letter also questions whether the state legislature has the authority to defy the repeal of ‘Don’t Ask, Don’t’ Tell’ since Article I, Section 8, of the U.S. Constitution gives Congress broad authority to determine the rules and regulations covering all militia.
The ACLU praised Virginia Governor Bob McDonnell, who has already expressed his opposition to Marshall’s proposal.  “We were glad to see the Governor respond to Marshall so quickly,” said Willis. “Perhaps if Delegate Marshall hears that a large number of other elected officials oppose the bill, he’ll decide that it’s simply not worth the effort.”
A copy of the ACLU’s letter can be found online at http://acluva.org/wp-content/uploads/2010/12/20101221MarshallDADTVirginiaNationalGuard.pdf

Contact:  Kent Willis, Executive Director,  (804) 644-8022

Stay informed

ACLU of Virginia is part of a network of affiliates

Learn more about ACLU National