At least four state National Guards won’t follow a Pentagon directive to enroll same-sex partners in benefit programs, citing state prohibitions on gay marriage.
The refusals likely won’t prevent same-sex partners from receiving benefits. But the disputes preview a bigger fight over benefits to come, one that would likely lead to lawsuits that could force states to recognize same-sex unions.
On Tuesday, Oklahoma Gov. Mary Fallin’s (R) office notified her state’s National Guard that processing benefit requests for same-sex couples would violate Oklahoma’s ban on gay marriage. Oklahoma joins Texas, Mississippi and Louisiana, states where the National Guard has already said it won’t process benefits for same-sex couples.
Other states may join those four. Last week, Florida Attorney Generl Pam Bondi’s office declined to offer an opinion on whether her state’s National Guard can process those benefits. Florida Adjutant General Emmett Titshaw sought an opinion from Bondi’s office on whether processing them would violate the state’s constitutional ban on gay marriage; a deputy attorney general wrote back seeking more information.
The fact that National Guards won’t process benefit enrollments doesn’t mean gay troops can’t add their partners to benefit programs; it just means they can’t enroll their partners at a state-run facility. When they are inactive, National Guards are under the command of a state governor, not the federal Department of Defense.
Gay troops will still be able to enroll their partners, but they must do so at a federal facility run by the Department of Defense — like an Army, Navy or Air Force facility. The Florida National Guard is advising gay soldiers that they can still sign their partners up at federal facilities.
“The issue is really a matter of where enrollment can happen,” said Brian Moulton, legal director at the Human Rights Campaign. “We are not aware of Guard members with same-sex spouses being unable to secure benefits through a federal facility.”
While it may be a burden for some gay couples to travel to a federal facility, rather than a state-run Guard facility, it’s unlikely that the burden would be sufficient basis for a court challenge. But the debate hints at another coming divide between state and federal laws, if and when the Department of Health and Human Services offers guidance on how to include same-sex couples in Medicaid expansions.
That’s because, while the Defense Department has federal facilities in every state, there are no federal facilities that administer Medicaid, a program that’s run by the states. If states with same-sex marriage bans refuse to allow gay couples to enroll in Medicaid, despite federal guidance, those couples could take the matter to court.
In several states where same-sex marriage bans are unlikely to be overturned by Republican-dominated legislatures, gay couples have used the courts in creative attempts to force the state to recognize their unions.
Two gay couples in Texas are suing the state for the right to seek a divorce; Attorney General Greg Abbott (R) has argued recognizing the divorce would be tantamount to state recognition of the marriage, which is banned by the state constitution. Couples in Tennessee, Arkansas and other states are both suing for the right to marry, after the U.S. Supreme Court struck down the Defense of Marriage Act earlier this year. The next catalyst may be Medicaid expansion.