National Guard units have a unique status, existing under the authority of their respective states and the federal government.
The American Civil Liberties Union and the American Military Partners Association, a gay service members group, launched a petition last week calling on the Pentagon to “put these states in line and enforce equal access to benefits for all military families nationwide.”
The Obama administration pledged to provide federal benefits to legally married same-sex couples after the Supreme Court struck down key parts of the Defense of Marriage Act in June.
But the four state National Guards say their state constitutions, all of which define marriage as a union only between a man and a woman, conflict with a new Pentagon rule requiring the military to treat married couples equally.
A host of other states that don’t recognize same-sex marriage — including Alabama, Kentucky, Michigan, North Carolina and Virginia — have said they will process the federal benefits, raising a question about whether the other four states’ policies are more a matter of discretion than legal obligation.
“They’re service members applying for benefits, so we give them to them,” said Lt. Col. Kirk Hilbrecht, a spokesman for the Kentucky National Guard.
Florida is still deciding whether to process benefits for same-sex couples. Maj. Gen. Emmett Titshaw Jr., who oversees the guard forces there, asked the state’s attorney general, Pam Bondi, to offer an opinion on the matter, but she declined. Bondi asked Titshaw to first clarify how the Defense Department’s directive would conflict with his duties under Florida law.
Opponents of same-sex marriage have applauded the four states for their defiance.
“What we’re seeing here is the unconscionable and immoral impulse of the federal government to force itself into state marriage policy, where it has no right to meddle,” said Bryan Fischer, director of issues analysis for the American Family Association.
The Pentagon has declined to comment on whether it is reviewing the state policies or whether the federal government can force states to process benefits applications. The White House and Justice Department did not respond to questions about whether they will challenge the noncomplying states.
‘A true Rubicon moment’
Alicia Butler’s views are unequivocal.
“I see politics here,” said Butler, whose spouse, Judith Chedville, is a member of the Texas National Guard and served in Iraq in 2003. “Points are being scored by standing up to the federal government or by going against gays. It’s really just a cheap shot.”
Butler and Chedville, who were married in California in 2008, were excited about the Supreme Court’s ruling, which made them both eligible for military benefits. “The first thing I said was that our license would be more than just a piece of paper now,” Butler recalled. “It was nothing as far as Texas was concerned.”