The repeal of “Don’t Ask, Don’t Tell” in 2010 allowed gay, lesbian, and bisexual service members to serve openly for the first time in American history. And this past summer, the Supreme Court struck down key provisions of the Defense of Marriage Act, creating a pathway for the military to recognize same-sex couples for the purpose of spousal benefits. As a direct result of the ruling, the Department of Defense instructed military facilities to begin enrolling same-sex spouses of service members in military benefits programs starting September 3, 2013. But a handful of anti-gay, activist governors continue to discriminate against same-sex military spouses by refusing to enroll them in benefits programs at National Guard facilities.
Most recently, Gov. Mary Fallin (R-OK) directed the Oklahoma National Guard to reject same-sex military spouses applying for federal benefits programs at National Guard facilities, stating that the Pentagon’s instructions to extend these benefits conflicted with her state constitution’s ban on marriage for same-sex couples. She joins the governors of Texas, Louisiana, and Mississippi, who have given similar orders to the National Guards in their respective states in order to further publicize their personal, anti-gay beliefs.
Because the National Guard is often under the control of a state governor instead of the president—despite being funded almost exclusively by the federal government—Gov. Fallin argued that she had the authority to defy Pentagon directives instructing the National Guard to treat same-sex military couples the same as other couples applying for spousal benefits. Consequently, same-sex military couples in Oklahoma—and these three other states—are forced to travel to a federal facility in order to receive the exact same benefits and services they could have applied for and received at a local National Guard facility.
Make no mistake: The actions of these governors are not guided by a genuine concern for the laws in each of their states. Their refusal to treat gay and lesbian troops the same as their heterosexual counterparts is a political stunt that inflicts real burdens on military couples.
Here are a few facts to keep in mind when considering their actions.
These governors have a history of anti-gay politics
The governors of these four states have been public and outspoken opponents of equal rights for gay and lesbian Americans, specifically on the issue of marriage equality. In response to the Supreme Court’s ruling on the Defense of Marriage Act, Gov. Fallin told the press, “Like the vast majority of Oklahomans, I support traditional marriage. I do not and will not support expanding the definition of marriage to include same-sex couples.”
Texas Gov. Rick Perry (R) made headlines during his bid for the presidential candidacy in 2012 when he produced a television ad criticizing the repeal of “Don’t Ask, Don’t Tell.” He stated, “You know there is something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.” He also signed a bill in 2003 that prohibited Texas from recognizing same-sex marriages performed in other states.
Following the Supreme Court’s decision on the Defense of Marriage Act, Louisiana Gov. Bobby Jindal (R) said, “I believe every child deserves a mom and a dad. … In Louisiana, we will opt for traditional marriage.” In 2008, he appointed known anti-gay activists to the Louisiana Commission on Marriage and Family, a committee that purports to collect and analyze “data on the social and personal effects of marriage and child-bearing within the state of Louisiana” in order to advise state policymakers.
Mississippi Gov. Phil Bryant (R) fares no better. Dissatisfied with a Mississippi church refusing to wed an interracial couple, Gov. Bryant stated his belief that all couples should have the right to marry in the Bayou State. However, he immediately clarified his statement: “I wouldn’t say gay couples, no. I’d say a man and a woman. Let me make sure, let’s get that right. When I say couples, I automatically assume it’s a man and a woman.” In 2004, when Bryant was lieutenant governor of Mississippi, he publicly supported an amendment banning same-sex marriage in the state constitution.
Military benefits are conferred by the federal government, not individual states
Whereas Oklahoma, Texas, Louisiana, and Mississippi are presently within their rights to deny same-sex couples the marriage benefits that the state would confer to different-sex couples, the benefits of concern here are not funded or conferred by the state at all. Military and veterans benefits are granted by Congress and funded by the federal government. National Guard facilities in these four states routinely enroll different-sex military spouses in federal benefits programs voluntarily, and it is discriminatory to allow some couples to access federally funded benefits while denying access to same-sex couples. In other words, it is not up to the states to determine who is eligible to receive benefits that the federal government provides to married military couples.
Moreover, the vast majority of National Guard funds—unrelated to benefits—also come from the federal government. In fiscal year 2012, for example, the Army National Guard received about $13 billion in federal funds. In Mississippi alone, the federal government provided $685 million in support of the state National Guard, whereas the Mississippi government paid just more than $7 million. That’s approximately $95 from the federal government for every $1 that Mississippi contributed to its own National Guard.
The National Guard receives substantial amounts of funding from the federal government because it is also required to carry out the duties of the federal government—such as deploying overseas or responding to some domestic crises—at the request of the commander-in-chief.
The animus of state governors does not trump the federal government
The most infamous example of a rogue governor defying the federal government was when Arkansas Gov. Orval Faubus (D) refused to desegregate a high school in Little Rock following the landmark case Brown v. Board of Education in 1954. Gov. Faubus inappropriately used the National Guard to block African American students, known as the Little Rock Nine, from entering a previously all-white school in 1957 in direct defiance of the Supreme Court decision. President Dwight D. Eisenhower responded by federalizing the Arkansas National Guard, effectively removing it from the authority of the governor, and ordered active-duty troops to Little Rock to allow the students to enter the school. If the history of gubernatorial insubordination tells us anything, it’s that the animus of state governors does not trump the federal government.
To use another example, states have a variety of laws governing the distribution of emergency contraceptives such as Plan B. In Mississippi, for example, pharmacies and individual pharmacists are not required to provide emergency contraception if they express a moral objection. In contrast, in 2010, emergency contraception was placed on the list of drugs that all military facilities around the world must stock and provide to service members at their request. Despite this discrepancy between state law and federal directive, servicewomen seeking emergency contraception at the medical treatment facility at Keesler Air Force Base, Mississippi—home to an Air National Guard unit—are guaranteed access.
So with regard to contentious social issues—such as same-sex marriage and access to emergency contraception—the National Guard has historically either followed federal law and Pentagon directives or been forced to comply with them.
Lingering inequality disrespects the service of our military members
Alicia Butler was turned away when she and her wife, Texas National Guard Lieutenant Judith Chedville, tried to apply for spousal benefits at a military installation in Austin. The couple was directed to a federal facility, forcing them to spend an additional three hours for the round trip and to find child care for their newborn.
Spokespeople for the governors and the National Guards in Oklahoma, Texas, Louisiana, and Mississippi have attempted to downplay the bigotry behind these decisions by pointing out that same-sex couples are not being outright denied military benefits but are just being denied benefits at National Guard installations. In a letter, Maj. Gen. John Nichols said that the Texas National Guard “remains committed to ensuring its military personnel and their families receive the benefits to which they are entitled.” However, the letter also instructs the state’s National Guard facilities to reject the benefits claims of gay and lesbian couples. As Butler points out, “What they’re saying in effect is, ‘well, we don’t want to give you these benefits, but we have to, so we’re going to make it as inconvenient as possible.’”
This type of anti-gay activism runs counter not only to Defense Department directives but also to the core values of military service. As Secretary of Defense Chuck Hagel stated in response to the Supreme Court’s decision to strike down provisions of the Defense of Marriage Act:
Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country, and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.
Although the federal government and the military have taken great strides toward equality for gay and lesbian service members, these four states’ governors continue to treat these service members like second-class citizens by any means within their reach, creating unnecessary burdens for those who already sacrifice in order to serve their country and their communities.
National Guards in states with similar same-sex marriage bans do not see a problem
Thirty-five states explicitly prohibit same-sex marriage under state law or the state constitution, yet only Oklahoma, Texas, Louisiana, and Mississippi have chosen to discriminate against same-sex military spouses applying for federal benefits. States such as Kentucky, which has both a constitutional amendment and a statute defining marriage as solely between one man and one woman, have complied with the federal government and the Pentagon in extending these benefits, stating simply that, “They’re service members applying for benefits, so we give them to them.” It is unclear why these four states believe that processing federal benefits for same-sex couples at National Guard facilities is in conflict with state law when states with similar laws and/or constitutional amendments have accepted the reality of the Supreme Court’s decision.
It’s no secret that the governors of Oklahoma, Texas, Louisiana, and Mississippi harbor prejudice against LGBT Americans. Because the Department of Defense does not collect data on sexual orientation, it is impossible to determine precisely how many families are affected by the decision of these state governors to discriminate against same-sex military spouses. We do know, however, that nearly 55,000, or 12 percent of all National Guardsmen reside in one of these four states. Moreover, Texas alone comprises the second-largest population of National Guardsmen in the country. To be certain, the number of people impacted by these governors’ actions is substantial.
Moreover, the decision of these governors is not just wrong prima facie; it signals a dangerous trend of states unlawfully continuing to discriminate against same-sex couples in defiance of the Department of Defense and the federal government. Since these governors have come out against processing benefits for same-sex spouses, South Carolina has ordered that no couple—gay or straight—can apply for federal benefits at National Guard facilities, and Florida is still in the process of determining whether it will process same-sex spousal benefits in National Guard facilities.
As Butler clearly stated, “It’s really just a cheap shot.” The National Guard is not a publicity tool for state governors to make a political point. It is time for these governors to sideline their disingenuous legal concerns and stop playing politics with military benefits, as it comes at the expense of those who serve.
Katie Miller is a Research Assistant with the LGBT Research and Communications Project at the Center for American Progress.