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Anti-Gay Argle-Bargle

Ian S. Thompson,
Senior Legislative Advocate,
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October 7, 2013

For far too long, the dual discrimination of the Defense of Marriage Act (DOMA) and “Don’t Ask, Don’t Tell” dishonored the service and sacrifice of gay and lesbian members of the Armed Forces. But that’s all in the past now, right?

Not if some governors have their way.

Following the landmark decision in U.S. v. Windsor, the Defense Department said it would now treat all married military personnel equally, and would work to make the same benefits available to all military spouses. To say that this day was a long time in coming would be an understatement.

What we have seen in the weeks since, however, is a drip, drip, drip of state governors, acting in their role as commanders in chief of their state National Guards, refusing to allow married same-sex military couples to apply for federally paid for benefits at National Guard locations. This rogues gallery of states consists of Louisiana, Mississippi, Oklahoma, and Texas. These states argue that their constitutions – which prohibit marriage for same-sex couples – do not allow them to permit these couples to apply for federal benefits at National Guard facilities. Mark Joseph Stern at Slate, borrowing a phrase from a certain Supreme Court justice, rightly described this as “argle-bargle.”

Besides the fact that state National Guards are funded in large part by federal tax dollars, not a single cent of state funds is used to pay for these benefits. They are paid for entirely by the federal government. Oh yeah, and there are numerous states with similar anti-gay constitutional bans, including Alabama, Kansas, and Virginia (to name only three), that have not tried to erect these discriminatory hurdles that force these couples to spend precious time and resources traveling often long distances to federal facilities.

This effort needs to be seen for what it is – a way to play anti-gay politics at the expense of military couples. That’s why the ACLU joined forces with the American Military Partner Association in launching a national petition last month that calls on the Defense Department to once again reaffirm that all married military couples must be treated equally, and state National Guards cannot choose to ignore this order by denying some lawfully married couples equal access to the federal benefits to which they are entitled.

On September 30, the two most senior Democrats on the House and Senate Armed Services Committees – Rep. Adam Smith (D-Wash.) and Senator Carl Levin (D-Mich.) – echoed these same requests in a letter to Secretary Hagel.

The resistance by these state National Guards – prompted by the actions of a handful of governors – cannot go unaddressed by DOD. The Supreme Court’s ruling in U.S. v. Windsor requires the military to treat all married couples equally. Denying some lawfully married couples who happen to be of the same sex the ability to apply for benefits they are entitled to in the communities where they live and work is not what equal treatment under the law looks like.

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