On the heels of the repeal of Don’t Ask, Don’t Tell late last year, Virginia Delegate Bob Marshall declared that he was going to introduce legislation that would ban gays and lesbians from serving in the Virginia National Guard.

Now Virginia Attorney General Ken Cuccinelli has weighed in, saying that the state can do so … provided that it is willing to fund the militia entirely on its own:

Virginia would have to establish and fully fund its own independent militia if it wanted to ban gays from its National Guard force, Attorney General Kenneth Cuccinelli says …Cuccinelli said he could not give a detailed answer to the question until federal regulations repealing the policy are issued. But regardless of how those regulations are written, he said, Congress pays most the Guard’s costs and can yank funding for noncompliance with federal policy. … Cuccinelli said in his opinion that the nation’s state militias evolved over the years into a “dual enlistment system” in which National Guard members “are both members of the organized militia and a reserve component of the armed forces of the United States.” A key aspect of the system, he said, is that the federal government provides virtually all of the funding. The dual enlistment system and the spending power of Congress “has meant in practice that Congress set the standards and policy for state Guard units,” Cuccinelli wrote.

Marshall, for his part, isn’t buying Cuccinelli’s claim and is accusing him of “making this up for political cover” for Republicans who don’t want to be forced to vote on Marshall’s anti-gay bill.