President Obama (right) could follow Presidents Kennedy and Eisenhower, who both federalized National Guard units. (Photos of Dwight D. Eisenhower and John F. Kennedy public domain. Washington Blade photo of Barack Obama by Michael Key).
As National Guard units in several states refuse to process spousal benefit applications for troops in same-sex marriages, one advocate says there’s a unique — yet unlikely — solution: President Obama could federalize the state units.
Ret. Lt. Col. Chris Rowzee, spokesperson on National Guard affairs for the American Military Partner Association, raised the possibility of federalizing the National Guard units to ensure states offer spousal benefits to gay troops.
“This would be an extreme example, but they could … federalize the troops, and in that case, the state governor would have zero say over what the guard unit then does,” Rowzee said. “We certainly hope that it doesn’t come to something like that. We hope that the governors of these states recognize that the right thing to do for these guardsman and these families is to give them support and the entitlements to which they are entitled.”
Rowzee added she’s not calling for Obama to take control of the National Guard units, but noted she wants some kind of response from the Obama administration.
At least four states — Texas, Oklahoma, Mississippi and Louisiana — are refusing to give troops in same-sex marriages military IDs for their partners by denying these couples’ applications at state-run facilities. That hampers the couples’ ability to receive health, pension and housing benefits afforded to other service members.
Despite an Aug. 13 directive from Defense Secretary Chuck Hagel saying these benefits should be available nationwide, even in non-marriage equality states, these four states are citing state constitutional amendments banning same-sex marriage as the reason they cannot enroll these couples into the Defense Enrollment Eligibility Reporting System.
The American Military Partners Association has called for a response from the Obama administration to prompt a change from the state National Guards. The more obvious method that has been discussed before is a deprivation of federal funds for these installations as a result of disobeying a federal directive.
Chris Jenks, a former Army judge advocate general and law professor at Southern Methodist University, said federalizing elements of the National Guard and withholding funds are both viable options for Obama.
“Ultimately, if the governors of the four states persist in their order to their state National Guards to not provide benefits to same-sex married guard members, the governors run a risk that the president will federalize those state national guards,” Jenks said. “One hopes it wouldn’t come to that. But if the gay rights movement is the civil rights struggle of our time, it will be interesting to see how far the first African-American president will allow state governors to countermand him.”
In the 1950s, President Eisenhower federalized the Arkansas National Guard when the governor of that state was using it to enforce racial discrimination at Little Rock Central High School. In 1963, President Kennedy took similar action in Alabama to desegregate the University of Alabama.
The situation today, of course, isn’t exactly parallel. Eisenhower and Kennedy federalized the units in Arkansas and Alabama to force integration of schools – not to make the guard units themselves operate in a non-discriminatory manner.
Under the relevant statute, the president would have to declare a national emergency in order to bring the National Guard units of those states under his direct command.
Fred Sainz, vice president of communications for the Human Rights Campaign, said his organization is asking for a federal response to the situation, but does not endorse the idea of federalizing the National Guard units.
“We are urging Secretary Hagel to talk to these state governments about the need to have uniformity and fairness for all service members in accessing the benefits to which they are entitled by law,” Sainz said.
The Obama administration has been quiet on the issue of individual National Guard units resisting the order for nationwide spousal benefits for gay troops.
White House Press Secretary Jay Carney had no immediate answer when the Washington Blade asked if Obama was aware of the issue and believes these units are violating federal policy. Carney deferred to the Pentagon, but also said he could take the question and talk about the issue later. As of last week, the Blade had not received a White House response.
Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, would only say troops in same-sex marriages are able to enroll at federal installations.
“All Federal Military installations (in Texas, Oklahoma, Mississippi and Louisiana) will issue IDs to all those who provide a valid marriage certificate from a jurisdiction that recognizes same-sex marriage,” Christensen said.
But Rowzee maintained that directing troops to travel to a federal installation isn’t an adequate solution to the problem. For starters, the issue isn’t just enrollment for benefits, but also participation in guard activities like family readiness programs.
“The rationale that they are using to deny giving me the ID cards to begin with is rationale that very easily could be applied to even something as simple at the spouse being given access to the base, being able to drive to the base to pick up her guardsmen from a deployment,” Rowzee said.
Legal experts who spoke with the Blade agreed the decision to refuse to process these applications violates federal law.
SMU’s Jenks said these states are caught between state and federal governments, but are ultimately exceeding their authority.
“I think the state governments have overreached and it’s unfortunate that they are using the National Guard in a politicized fashion, that’s not why the National Guard exists,” Jenks said. “Ultimately these efforts by the states will not be successful.”
One initiative that has emerged as states have begun to withhold these benefits from gay troops is a petition led by the American Civil Liberties Union and the American Military Partner Association calling on the Pentagon to reaffirm that all married military personnel are eligible for these benefits.
Another group that is pursuing action on the issue in Texas is Lambda Legal. Representing Alicia Butler and Judith Chedville, a lesbian military couple denied benefits at Camp Mabry, Lambda sent a letter on Sept. 13 to Texas Military Forces saying current policy “fails its troops and their families.” The letter requests a response in 10 days.
Paul Castillo, staff attorney for Lambda Legal, said he “absolutely” thinks Texas is violating federal law by denying benefits to troops in same-sex marriages.
“The state law does not inhibit the National Guard from completing a federal mission,” Castillo said. “The DEERS system and benefit administration is federally funded along with the personnel operating the system, so there’s no reason for them to discriminate in issuing the spousal IDs and enrolling them in the DEERS system.”
Castillo said Texas confirmed receipt of the letter. Since that time, Castillo said communications between Lambda and the state are ongoing, although he couldn’t elaborate on them.
Whether a lawsuit is in the works by any of these groups remains to be seen. None would rule out the possibility of litigation if nothing changes at these guard units.
For Rowzee, the decision of these guard units to withhold benefits is particularly disappointing in the wake of advancements in marriage equality throughout the country following the Supreme Court decision against the Defense of Marriage Act.
“Do I honestly believe that the governor of Texas will be forever able to defy a DOD directive? No, and I think he knows that,” Rowzee said. “I think he’s using this issue to try to gain political points, and the problem is it harms people in the meantime. It harms our military families.”
Whether this is an example of the DOD unacceptably lacking any institutional memory or another example of willful neglect by recalcitrant homophobes in the Pentagon wagging the dog, the bottom line is that they have been here before in terms of the resistance of some National Guard units to change (including Louisiana specifically), and, therefore, they should have PREEMPTIVELY contacted each of them, and ORDERED them to comply or face denial of federal funding. That they haven’t yet even AFTER the defiance we’re seeing is another example of the Obama’s Administration indefensibly repeatedly choosing to treat military homophobes with kid gloves. FROM “Integration of the Armed Forces 1940-1965,” Center of Military History, United States Army, 1985:
“[In 1961, nearly] fourteen years after [President Truman ordered the military to racially integrate], ten states with large black populations and understaffed guard units still had no Negroes in the guard. …. As early as 1949 the legal counsel of the National Guard Bureau had concluded that the federal government had the right to compel integration. Essentially the same stand was taken in 1961 by the Defense Department's Assistant General Counsel for Manpower. … But in the 1960s, long after the services had integrated their active forces and seemed to be moving toward a similar policy for the guard, doubts about federal authority over a peacetime guard appeared. The National Guard Bureau disputed the 1949 opinion of its legal counsel and the more recent one from the Defense Department and stressed the political implications of forcing integration; a bureau spokesman asserted that ‘an ultimatum to a governor that he must commit political suicide in order to obtain federal support for his National Guard will be rejected’. … Finally in December [1964, Secretary of Defense Robert] McNamara issued a directive spelling out his department's obligations under the act's controversial Title VI, Non-discrimination in Federally Assisted Programs. This directive was one of a series requested by the White House from various governmental agencies and reviewed by the Justice Department and the Bureau of the Budget in an attempt to coordinate the federal government's activities under the far-reaching Title VI provision. After arranging for the circulation of the directive throughout the services, Secretary McNamara explained in considerable detail how grants and loans of federal funds, transfer, sale, or lease of military property, and in fact any federal assistance would be denied in cases where discrimination could be found.
… The Civil Rights Act of 1964 altered the Defense Department's attitude toward the National Guard. Title VI of the act undercut all arguments against federal supremacy over the guard, for it no longer mattered who had technical responsibility for units in peacetime. In practical terms, the power to integrate clearly rested now with the federal government, which in a complete reversal of its earlier policy showed a disposition to use it. On 15 February 1965 Deputy Secretary of Defense Vance ordered the Army and Air Force to amend National Guard regulations to eliminate any trace of racial discrimination and ‘to ensure that the policy of equal opportunity and treatment is clearly stated’. Vance's order produced a speedy change in the states.”
PREEMPTIVELY contact them? Nobody knew how the Supreme Court would rule on DOMA.
I think same sex marriage should be allowed in all 50 states and any state that has a problem with it be penalized from federal funds. equality and civil rights are not something we vote on. they are in the constitution
The Federal law, DOMA, still says marriage is between a man and a woman….that may disagree with equal opportunity, but it is Federal Law. Obama disobeyed the law when he required the military to accept these marriages (he did not support and defend the laws of this Nation, knowing violated the law of the land, and could be impeached. If there were any legal challenges to his orders, the President would lose the case, not the National Guard. Either the legislature votes to repeal the law, or the law is challenged and deemed Un-Constitutional by the Supreme Court, until then, the President is the one in violation, and the military, according to the Unified Code of Military Justice (UCMJ) are not required to follow an illegal order.
The DOMA law has not been repealed or ruled un-Constitutional, if the President pushes this, he can be impeached for violating the law. Second point, the military isn't required to follow an illegal order (UCMJ), as long as DOMA is the law, the President cannot force any military organization to accept or perform gay marriages.
Homosexuals do not have rights to circumvent laws, that does not constitute homophobia.
this was in 2013, the supreme court ruled forequal marriage under civil law in 2015
This should not even be an issue. The National Guard is still bound by Army and DOD Regulations. The End. Pay these soldiers their benefits.