The Obama administration determined this month that married same-sex couples are entitled to spousal military benefits, but three GOP-controlled states — Texas, Louisiana and Mississippi — have refused to grant them to members of their National Guards. Now advocates are urging the federal government to push back.
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.
McClatchy News reported Tuesday on the three state National Guards’ refusal to implement the Defense Department’s order that married same-sex active-duty military personnel could receive spousal benefits. A Mississippi National Guard spokesman told the news outlet that the unit was “following state law,” which, like laws in 30-plus other states, bans same-sex marriage.
However, other Republican-controlled states, more than a dozen by McClatchy’s count, have gone forward with providing benefits to same-sex spouses in the National Guard. “It is not in conflict with our state constitution or state laws,” Alaska National Guard spokesman Lt. Bernie Kale told the news service.
The Texas National Guard has asked Texas Attorney General Greg Abbott, who has stated his strong opposition to same-sex marriage in the past, for guidance. Abbott has 180 days to respond.
The Defense Department told McClatchy that National Guard personnel could travel to federal army bases to sign up for benefits. But in a huge state like Texas, that could be a serious challenge for some couples.
OutServe’s letter, obtained by TPM, outlines the Obama administration’s option, the most serious of which is cutting federal funding for those state National Guards. It’s an unlikely option, a White House aide acknowledged to TPM, but it hasn’t been taken off the table.
The authors pointed to a section of federal law that says: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.”
Given that the federal government supplies the majority of National Guard funding, that option would likely force those state militias to stop operating.
“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 TPM.
The more practical option, according to the OutServe letter, would be reclassifying the National Guard human resources officers as federal employees, who would be obligated to enforce federal policies. If necessary, the letter said, the technical equipment for human resources could be relocated to federal property near National Guard offices.
The last resort, if the Obama administration fails to act, would be litigation. According to Upton, one Texas couple has already filed an internal complaint. Tom Hargis, spokesman for the Texas ACLU, told TPM in an email: “All options are on the table at this point.”
“If the state agency takes on the obligation of enrolling people for federal benefits, it has obligation to perform that task in compliance with federal law and Constitution,” Upton said. “It’s hard to see what argument they’re going to come up with.”