Virginia Attorney General Ken Cuccinelli said in an advisory opinion that he cannot answer an inquiry from Del. Bill Janis, R-Goochland, on whether the Virginia General Assembly can ban gays from serving openly in the Virginia National Guard because the federal regulations that will abolish the U.S. military's "don't ask, don't tell" ban on gays serving openly have not yet been issued. "Regardless of what form those regulations take, the Constitution expressly reserves to the states the power to appoint officers to the state militias, and that includes the modern National Guard," Cuccinelli wrote.

Cuccinelli also wrote that Congress could condition the funds it appropriates on states' acceptance of the policy, and if the General Assembly wants to avoid strings attached to the monies, "it can raise, equip and fund an independent Virginia militia entirely from state revenues."

Del. Bob Marshall, R-Prince William, filed a bill that seeks to ban gays from openly serving in the Virginia National Guard in the wake of the federal repeal of the "Don't Ask, Don't Tell" policy.