Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for November, 2013

States Defy Pentagon Order Requiring Equal Treatment for Guard Members

Jim Burroway

November 4th, 2013

Several GOP-led states have vowed to resist Defense Secretary Chuck Hagel’s order requiring National Guard to issue ID cards to spouses of Guard members who are in same-sex marriages. Those ID cards are critical for accessing spousal benefits. According to Reuters:

Oklahoma Governor Mary Fallin, the Republican head of the National Governors Association, called on President Barack Obama and Defense Secretary Chuck Hagel to “stop using the National Guard as a pawn in a larger social agenda,” her spokesman, Alex Weintz, said in a statement on Friday.

“The president has made it clear he supports gay marriage. He has the legal authority to order federal agencies to recognize gay marriages. He does not have the legal authority to force state agencies to do so, or to unilaterally rewrite state laws or state constitutions,” Weintz said.

Josh Havens, a spokesman for Texas Governor Rick Perry, said, “Texas Military Forces is a state agency, and as such is obligated to adhere to the Texas Constitution and the laws of this state which clearly define marriage as between one man and one woman.”

Nine states were initially identified as refusing to issue identity cards to same-sex spouses: Indiana, Georgia, Florida, Mississippi, Louisiana, South Carolina and West Virginia. Reuters reports, “Indiana notified the Pentagon on Friday it had begun issuing the cards after a month-long review, a move defense officials said they welcomed.”

Louisiana has also confirmed that they will also defy Sec. Hagel’s order, while Oklahoma Gov. Mary Fallin said she is exploring her legal options. Georgia’s National Guard has said it will ignore Hagel’s order.

Defense Secretary Orders State National Guards To Treat Gay Couples Equally

Jim Burroway

November 1st, 2013

Since the Supreme Court struck down Section 3 of the Defense of Marriage Act last June, the Defense Department has been rushing to implement policies designed to treat legally wedded same-sex couples equally with married couples generally. But several states have refused to issue Defense Department ID cards to same-sex spouses of National Guard members. Those states include Indiana, Florida, Georgia, Mississippi, Louisiana, Oklahoma, South Carolina, Texas and West Virginia. Defense Secretary Chuck Hagel, in a speech to the Anti-Defamation League, has announced that he is putting a stop to such discriminatory practices:

“Today, I directed the Chief of the National Guard Bureau, Gen. Frank Grass, to take immediate action to remedy this situation. At my direction, he will meet with the Adjutants General from the states where these ID cards are being denied. The Adjutants General will be expected to comply with both lawful direction and DoD policy, in line with the practices of 45 other states and jurisdictions.”

A senior defense official told the Washington Blade that the Pentagon has some critical leverage to deploy against recalcitrant states:

“These are federal ID cards paid for with federal funding to provide federally mandated benefits,” the official said. “I’m not going to speculate on our legal options.”

Justice Department Won’t Defend Law Prohibiting Benefits for Married Gay Troops

Jim Burroway

February 17th, 2012

US Attorney General Eric Holder has announced that the Justice Department will not defend Title 38, which prohibits married gay troops from receiving housing,medial, family separation, disability and death compensation benefits. Citing a similar announcement a year ago in which Holder determined that Section 3 of the Defense of Marriage Act would not stand up to heightened scrutiny and was therefore indefensible as constitutional, Holder said that the same standard should apply to the case of McLaughlin v Panetta as well, which challenges the exclusion of benefits to gay couples in the military solely on the basis of their sexual orientation.

Holder made the announcement in a letter to Congress (PDF: 1504KB/2 pages, via SLDN):

McLaughlin presents a challenge, among other things, to provisions of Title 38 that are the equivalent to Section 3 of DOMA. Like Section 3, the provisions of Title 38 challenged in McLaughlin classify on the basis of sexual orientation, by denying veterans’ benefits to legally married same-sex married couples for which opposite-sex married couples would be eligible. Also like Section 3, these provisions as applied to legally married same-sex couples cannot survive heightened scrutiny because they are not “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456,461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515,535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” ld. at 533. The legislative record of these provisions contains no rationale for providing veterans ‘ benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.

I have accordingly determined that 38 U.S.C. § 101(3) and 38 U.S.c. § 101(31), as applied to same-sex couples who are legally married under state law, violate the equal protection component of the Fifth Amendment. My determination is confined to the defense of those particular provisions against challenge under the equal protection component of the Fifth Amendment, and does not implicate the other challenges raised by the plaintiffs in McLaughlin.

The Washington Blade’s Chris Johnson observes:

Holder’s decision is likely to have a bearing on another lawsuit challenging Title 38 and DOMA,  Cooper Harris v. United States. The lawsuit was filed by the Southern Poverty Law Center earlier this month on behalf of Tracey Cooper-Harris, an Iraq and Afghanistan veteran who’s seeking disability benefits for her spouse.

Holder’s letter essentially places the ball in House Speaker John Boehner’s court to decide whether Congress wants to take up the challenge of defending Title 38 in court. Boehner has already authorized the defense of DOMA on behalf of the House of Representatives.