The National Guard: ‘Separate but Equal’ for the 21st Century?

Seven states ignore Pentagon orders to treat same-sex marriages equally

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Harry Walker / MCT via Getty Images

Oklahoma Governor Mary Fallin warns that Washington "cannot simply ignore our laws or the will of the people.”

Military leaders like to cite the importance of unity of command, where everyone knows who is boss. Unfortunately for that vital martial guideline, each state’s National Guard reports to both its governor, and — through the Pentagon — to the President.

That dual-headed command structure has led to a second confederation of seven southern states that is refusing to issue ID cards that entitle same-sex spouses of military members to claim benefits. After the Supreme Court struck down the federal Defense of Marriage Act in June, the Pentagon said it would recognize same-sex marriages and issue military ID cards to same-sex spouses, including members of the National Guard.

But some states, citing state laws barring such unions, said their National Guard same-sex couples would have to visit a federal facility to get their spousal ID cards that entitle them to benefits, ranging from base access to commissary privileges to health care. In some states, such federal sites are hours away.

Florida, Georgia, Indiana, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and West Virginia initially balked, although Indiana and West Virginia have backed down. Florida and South Carolina decided to make it tougher on everyone, by deciding that anyone seeking a spousal ID would have to visit a federal site to get one. “Our adjutant general has responsibility to meet the policies and governing authority of both state and federal levels,” says South Carolina National Guard Major Cynthia King. “If they are in conflict, he must ensure both are being met.” A spokesman for the Florida National Guard told the Miami Herald that “we want to ensure that everyone is treated equally and all Florida National Guard members get their benefits in the same place.”

Georgia is simply sending gay military couples to federal facilities. “The State of Georgia does not recognize same-sex marriages and is not authorizing the Georgia National Guard to process the applications for same-sex married benefits at state facilities,” the Georgia Department of Defense says. “Any personnel seeking to apply for same-sex married benefits will be referred to federal facilities.”

It’s somewhat analogous to the “separate but equal” doctrine that created separate drinking fountains for blacks and whites during the Jim Crow era. Such a clash “is a pretty rare thing,” says Lawrence Korb, who served as the Pentagon’s top personnel chief during the Reagan Administration. State National Guard units are under their governors’ command unless they are federalized, as many were for the wars in Afghanistan and Iraq. But if they are not federalized, “technically” they are not under the Pentagon’s control, he says. Yet because the Pentagon provides 96% of the Guard’s budget, it retains the upper hand. “The Air National Guard,” Korb says, “doesn’t pay for those F-16s they’re flying.”

Hagel has been resolute on the subject. “Whether they are responding to natural disasters here at home in their states or fighting in Afghanistan, our National Guardsmen all wear the uniform of the United States of America,” he said. “They – and their families – are entitled to all the benefits and respect accorded to all of our military men and women.”

But Oklahoma Republican Gov. Mary Fallin basically told Hagel to go pound sand. “Oklahoma law is clear. The state of Oklahoma does not recognize same sex marriages, nor does it confer marriage benefits to same sex couples,” she said in a statement last week endorsing a decision to send gay couples to federal facilities for ID cards. That decision, she added, “protects the integrity of our state Constitution and sends a message to the federal government that they cannot simply ignore our laws or the will of the people.”

A spokesman for one of the recalcitrant states says his National Guard is just following the governor’s order, which is based on a law passed by the state’s voters several years ago limiting marriage to a woman and a man. “You can debate it all you want,” says the official, who asked that his state not be named, “but that’s what’s happening here, and I don’t see it changing.”

Advocates of same-sex unions aren’t retreating. “All service members and their families serving in the National Guard deserve to be treated equally, no matter what state of our nation they serve in,” says Stephen Peters, president of the American Military Partner Association, a nonprofit group dedicated to the families of gay service personnel. “It’s clear from the response of some state officials that further action by the secretary of defense must be taken to correct this unfortunate resistance to diversity.”

Pentagon officials have threatened further action, without specifying just what that might be. Korb, now a senior fellow at the Center for American Progress, isn’t sure any additional action is needed. He suggests that the decision of two states to back down indicates “they have spoken to their lawyers,” and he expects the others to do the same, eventually.

Eugene Fidell, former president of the National Institute of Military Justice and a lecturer at Yale Law School, says if push comes to shove, the law is on Hagel’s side. “Basically, when federal and state law conflict, and the federal law is within Congress’s power to enact,” he says, “the federal law trumps state law under the Supremacy Clause of the Constitution.”

7 comments
RicardoRivera
RicardoRivera

All seven states are from the south and this is why we shouldn't be shocked for the continuing bigotry against people who differ from those with the power to bring them equality! These states can spin this nonsense which ever they want In the end it's racism. It won't last for long because, anyone who wants equality is on the right side of history and the debate. Regardless how we feel individually some issues in life must be viewed as a whole with everyone' in mind not just those who feel they the ones living life right so they can stand on the mountain top judging good people when in reality they the ones who are in the wrong! I say this because, we have decades of how their thinking works and it's full of judgment, suppression and keeping traditions that only work for the select few while ignoring the needs of the rest. I suggest these states fall in line unless those governors intend to keep their jobs.

ARTRaveler
ARTRaveler

Nationalize the guard for as long as it takes to do the paperwork.  If it takes state employees and corporate people away for a day or two, so be it.  The states can't be allowed to run their own little armies unless they plan on paying 100% of the bills, 100% of the time.  And beg when a coastal hurricane bothers their little red-neck state.

notsacredh
notsacredh

" Pentagon officials have threatened further action, without specifying just what that might be. Korb, now a senior fellow at the Center for American Progress, isn’t sure any additional action is needed. He suggests that the decision of two states to back down indicates “they have spoken to their lawyers,” and he expects the others to do the same, eventually."

It's a shame that the courts may be needed to force red states to respect the rights of the men and women that fight for and protect them, Spitting in the faces of our service people isn't something they should be proud of.

Chosun1
Chosun1

“It’s clear from the response of some state officials that further action by the secretary of defense must be taken to correct this unfortunate resistance to diversity.”

That is a really funny choice of words ... "diversity" in particular, given that the Pentagon is actually trying to create conformity and eliminate diversity.

Ohiolib
Ohiolib

@ARTRaveler Even better, just threaten to stop paying for all the non-registered couples. The notion that government money comes with government strings is hardly radical. And if a state is that opposed to equality, let them run their own guard. Nobody is stopping them. 

ARTRaveler
ARTRaveler

@Chosun1 Diversity doesn't mean to deny some people a right that other people have, as you well know!

Chosun1
Chosun1

@ARTRaveler @Chosun1 -- The use of "diversity" in the sentence at issue and your redefining of the term are interesting but not correct.  To be diverse means to be different, not treating different things as being the same.  You seem to be confusing "acceptance" with "diversity"....  It is a common mistake of those who learned English from political activists posing as scholars instead of English language scholars.