While Congressional Republicans capture the political limelight with their renewed threat of a government shutdown, several states are taking part in an ugly sideshow with their decision to not allow the National Guard to process marriage benefits for same-sex couples.
Same-sex couples in Texas, Louisiana, Mississippi, and Oklahoma will have to apply for their marriage benefits at federal facilities. This is illegal given the policy change made by the Defense Department last month that gives same-sex spouses of military members the same marriage benefits enjoyed by opposite-sex couples. It’s also a violation of the Supreme Court’s recent decision to strike down provisions in the Defense of Marriage Act that prohibited federal recognition of same-sex marriage. This defiance occurs parallel to the Social Security Administration deciding a couple weeks ago to process spousal retirement claims for same-sex couples, and the Treasury Department announcing around the same time that legally wed homosexual couples will receive the same federal tax benefits as heterosexual spouses.
It’s a political geek show, with Republican legislators threatened by 2014 primaries biting off chicken heads in the hopes that their increasingly freakish efforts will keep their most extreme constituents oohing and ahhing.
Oklahoma Governor Mary Fallin ordered the National Guard to stop processing federal benefits on the grounds that a constitutional amendment passed by voters in 2004 prohibits the state from giving benefits to same-sex couples. The other National Guards are also claiming their own state constitutions only recognize heterosexual marriages. But Alabama, Kentucky, Michigan, North Carolina, and Virginia have said they will go ahead and process same-sex federal benefits despite not recognizing same-sex marriage. So it’s not a question of legality, it’s a question of making an appealing red-meat policy decision before next year’s elections.
Anti-gay-marriage advocates know they don’t have a legal leg to stand on. The claim that the National Guard must follow directives from the state is incorrect: The National Guard is a federally funded institution and takes its lead from the Department of Defense.
Federal judges can reverse these rulings if a case is brought before them. A federal judge in California already ruled in favor of granting a lesbian veteran and her spouse disability compensation based on the precedent of the Supreme Court decision to allow married gay couples health care benefits.
Besides, the states that are granting benefits to same-sex military couples follow a lengthy precedent of caving in when federal law opposes state policy. If President Obama wants to sack up and do something about it he can federalize the National Guard to carry out the dispensation of marriage benefits to same-sex couples so they don't have to file for their federal rights at Air Force bases. He would be acting like Eisenhower did when he forced desegregation of schools in Arkansas. Or when Kennedy federalized Alabama’s National Guard to circumvent George Wallace’s attempt to preserve segregation.
It’s a long shot, but hopefully the legal arguments will sway social conservatives from pointless bigotry that has no place in 2013. Same-sex couples — military members and non-members — should be accorded the same legal rights as opposite-sex couples.