Texas, Louisiana and Mississippi, have refused to grant benefits to same-sex couples that are members of their National Guards.
This post originally appeared at Occupy Democrats
By Salvatore Aversa
With the repeal of DOMA, and the subsequent announcement that retired and current military personnel would be eligible for full benefits with their partners, President Obama helped usher in a new era of civil rights. However, not everybody is happy with the decision, and three states in particular are refusing to implement spousal and family benefits.
On June 22, 2013, the Conservative controlled Supreme Court made a surprising 5-4 decision to repeal provisions inside DOMA, or the Defense of Marriage Act. One such provisions was a law barring the federal government from recognizing same-sex marriages legalized by the states.
Under the 1996 DOMA law, marriage had been defined as a union between a man and a woman. The Pentagon was unable to offer full benefits to same-sex partners of its personnel, who are federal employees. It withheld health care cover and other entitlements.
Discussions had started that DOMA may be shot down by the upcoming Supreme Court ruling.
“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the department to construe the words ‘spouse’ and ‘marriage’ without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents will be granted full military benefits,” Defense Secretary Leon E. Panetta said at the time.
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
In response to the Supreme Court decision, the Defense Department announced on August 14, 2013 that it would begin offering benefits to same-sex spouses and families of military personnel, civilian Defense Department and other employees beginning in September 2013.
Under the new policy, spousal and family benefits will include health coverage, housing allowances and survivor benefits, and will be available to all legally married military spouses. They will also be able to claim entitlements retroactively.
“The Department of Defense remains committed to ensuring that all men and women who serve in the U.S. military, and their families, are treated fairly and equally,” Defense Secretary Chuck Hagel wrote in a memo released by the Pentagon.
In order to be eligible, couples nut provide a certificate of marriage “that is valid in the place of celebration.” In order to allow members to apply for benefits, the Pentagon said that they would grant up to seven days of leave to those who need to travel to a jurisdiction where same-sex marriage is recognized by law in order to get married. Currently, thirteen states and the District of Columbia have legalized same-sex marriage. The Pentagon will also grant leave up to 10 days for those outside of the United States.
“This will provide accelerated access to the full range of benefits offered to married military couples throughout the department, and help level the playing field between opposite-sex and same-sex couples seeking to be married,” Mr. Hagel said.
In February 2013, the Pentagon announced that it would grant some benefits to committed same-sex partners of service members. The announcement came less than two years after President Obama signed the repeal of Don’t Ask, Don’t Tell and a year after he stated that they would not defend the constitutionality of laws blocking same sex spouses of military personal from receiving benefits.
When the Supreme Court struck down a key provision of DOMA, it cleared the way for federal agencies, under the direction of the Obama Administration, to recognize same-sex marriages in all departments, including Veterans Affairs, the IRS, and the military.
Starting September 3, 2013, couples that are legally married should have been able to enroll in programs, such as the military’s health care and housing plans. However, that was not the case across the country. Three National Guards units in the South are resisting the new law.
Texas, Louisiana and Mississippi, all three under Republican control, have refused to grant benefits to same-sex couples that are members of their National Guards. Since the new law took effect, the three states have since stalled processing requests for benefits from same-sex couples.
The three states are stating that their state constitution does not recognize same-sex marriage.
However, Texas, Louisiana and Mississippi are in the minority of states. 25 of the 32 states that have similar same-sex marriage bans will comply with the federal directive. And additional three have said that they are still deciding what they will do and four have not responded.
States that will comply include some of the deepest red in the United States. Oklahoma, Kansas, South Dakota and Kentucky have agreed to provide equal benefits.
Advocates are urging the federal government to push back on those states resisting.
The leaders of OutServe-SLDN, an LGBT advocacy group composed of active and former military, sent a letter last week to Gen. Frank Grass, chief of the National Guard Bureau, laying out the options for confronting those states. The authors argued that it was the U.S. Defense Department’s responsibility to make things right.
“You, as the responsible official for these activities, have authority to ensure systems are properly used to enroll all eligible applicants and ensure access to federal entitlements,” the letter, which was copied to Chairman of the Joints Chief of Staff Martin Dempsey said.
The three Republican attorney generals have come out against gay rights and benefits. They hope to appeal to Republican primary voters, and ultimately replace Gregg Abbott as the state’s top lawyer.
Texas State Senator Ken Paxton attacked first by publicly supporting the state leaders’ decision to not provide state benefits to same-sex couples who serve in the Texas Military Forces, as directed by the Pentagon.
“The Texas Constitution prohibits us from recognizing same-sex marriage in any form, and I support General (John) Nichols in his position to withhold state benefits from same-sex couples who serve in the Texas Military Forces,” Paxton said in a statement.
While states are refusing to give benefits, the Defense Department has stated that National Guard personnel may travel to federal army bases to sign up for benefits.
However, in a state as large as Texas, that could be prove to be difficult for some.
Further, the states argument that the the ruling goes against the state constitution may not be a good enough reason. A majority of the funding to the National Guards comes from the federal government, and not the state.
“The federal DOD directive trumps anything in this area,” said Kevin Cieply, associate dean for academics at Atlanta’s John Marshall Law School and a retired col. JAG officer, to MSNBC. “The National Guard is most of the time following federal guidelines, federal directive, spending federal funds. A very small portion of their operation is state funded.”
Those states are expected to face a considerable legal challenge for defying the Department of Defense.
In a letter, OutServe said that the Obama Administration has several options. The most serious of which would be to cut all federal funding to the state National Guards.
The White House has said that it was an unlikely option, but has not been taken off the table.
“It’s a pretty heavy threat if the military determines it could make it,” Kenneth Upton Jr., a senior staff attorney at Lambda Legal, an LGBT advocacy firm, told TalkingPointsMemo.
According to OutServe’s letter, the more practical option would be reclassifying the National Guard human resources officers as federal employees, who would be obligated to enforce federal policies. If necessary, the technical equipment for human resources could be relocated to federal property near National Guard offices.
This is an MSNBC breakdown of the states that ban same-sex marriage and where they stand on the military’s directive to offer equal benefits for gay married couples.
States with same-sex marriage bans that will comply with the DOD:
- North Carolina
- North Dakota
- South Carolina
- South Dakota
- West Virginia
States with same-sex marriage bans that are still deciding:
States with same-sex marriage bans that didn’t respond:
States with same-sex marriage bans that won’t process requests for benefits from same-sex couples: