A New Battleground for Equality Rights

C/o nytimes.com

Following the Supreme Court’s decision in June to strike down the Defense Against Marriage Act (DOMA), the Department of Defense announced that, effective September 3, 2013, the federal government would grant full spousal benefits to partners of gay and lesbian members of the armed services, which includes the National Guard. More specifically, Defense Secretary Chuck Hagel ordered same-sex spouses of National Guard members to receive the same federal marriage benefits as heterosexual spouses. The Supreme Court’s decision and Hagel’s decree affects about 17,000 individuals including National Guard, reserves and retirees. The new rights include important benefits such as the opportunity to enroll in the military’s health insurance plan. To receive the benefits, a gay same-sex spouse of an active-duty National Guard member just needs to visit a National Guard base and register for a military spouse ID card. This card will then initiate automatically entitles its holder to the federal marriage benefits. Easy right? Not quite.

Several states decided to defy the Pentagon’s order and in doing so turned a straightforward process into a complicated and burdensome one. Although a majority of states immediately followed the Pentagon’s order, several states refused to comply by restricting preventing National Guard gay same-sex spouses from picking up their military spouse IDs. More specifically, several states—including Florida, Georgia, Oklahoma, Texas, South Carolina, and West Virginia—took the a standing against the order. Some states completely denied giving the grant of benefits, while others limited access by requiring same-sex couples to travel to federal National Guard bases to receive the military benefits. For example, in Texas, a clerk told a couple they would have to travel to a federal military base over seventy miles away to get the IDs. This begs the question: Do these states have the a legal right to refuse to comply with the Pentagon’s order?

The defiant state governments argue that compliance with the law would conflict with state laws, which do not permit same-sex marriage. For example, a spokesman for Texas Governor Perry stated that the Texas National Guard “is a state agency and as such is obligated to adhere to the Texas Constitution and the laws of this state, which clearly define marriage as being between one man and one woman.” A commander of the troops in Texas revealed he couldn’t break state law. Put simply, the states believe that since the National Guard units are state agencies, they must follow state laws, which do not recognize same-sex marriages. However, even though the state governor’s supervise the National Guard and the units assist states, the federal government actually finances the members and the National Guard needs to adhere to Department of Defense rules. Additionally, the president can order the National Guard to act contrary to a Governor’s wishes. For example, President Eisenhower used the National Guard to enforce integration in Little Rock, Arkansas against the Governor’s interests. Also, Courts have historically have upheld that the principle that states cannot interfere with federal policies (including immigration, trade, etc.). Thus, states should also follow a federal policy concerning the National Guard since it is far from only a state agency.

Hagel, upset by the refusal of some state’s to follow his command, commented how the state’s’ actions “have created hardship and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they’re entitled to. This is wrong. It causes division among our ranks, and it furthers prejudice, which the Department of Defense has fought to extinguish.” Many individuals argue that the defiant states should not get away with their “discriminatory roadblocks” and urge the Pentagon to ensure that married couples are treated equally by requiring compliance with the law.

After Hagel’s criticism, the Florida National Guard decided to compromise by moving the military benefit functions from state buildings to only federal buildings. The Director of Public Affairs for the Florida National Guard said that Florida wanted to “ensure that everyone is treated equally and all Florida National Guard members get their benefits in the same place.” Florida should not have waited until Hagel reprimanded the state before taking action, and its initial reluctance shows the prejudice directed at same-sex couples. Also, even though every type of couple in Florida receives the benefits in the same way, both federal and state agencies should offer the benefits as the Pentagon’s decree intended.

Oklahoma also changed its policy, which Governor Mary Fallin called a compromise, by allowing same-sex couples to receive the benefits at some federal agencies. Governor Fallin defended her request to deny service as at National Guard state agencies by stating the importance of protecting “the integrity of our state Constitution” and sending “a message to the federal government that they cannot simply ignore our laws or the will of the people.” However, other states, such as Alabama, Kentucky, Michigan, North Carolina and Virginia, have state laws prohibiting same-sex marriage, but still followed the Pentagon’s orders and to provide the IDs to gay same-sex military spouses. Clearly other states’ compliance demonstrates that independent states can still have autonomy while complying with federal law. Oklahoma’’s policy exposes even more prejudice than Florida’s as the plan still “treats gays and lesbian National Guard members differently than their straight counterparts.”

All states should uniformly comply with the Pentagon orders and provide benefits to spouses of same-sex couples in the National Guard. The rights of gays and lesbians in the National Guard—individuals who risk their lives to protect liberty and equality all over the world—should be respected by treating everyone equally.

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