Okla. eyes legal options after Hagel order to Guard units
The Tulsa (Okla.) World
OKLAHOMA CITY — Oklahoma may be taking the federal government to court again, this time over Defense Secretary Chuck Hagel’s order that the Oklahoma National Guard must comply with federal policy on same-sex spouses.
Alex Weintz, spokesman for Gov. Mary Fallin, said she “is working with Oklahoma Attorney General Scott Pruitt to evaluate the legal options available to the Oklahoma National Guard.”
In early September, the Pentagon said it would treat all legally married couples the same regarding spousal benefits, regardless of the sex of the partners. This followed a U.S. Supreme Court decision invalidating a portion of the national Defense of Marriage Act and ordering the federal government to recognize same-sex marriages performed in states where such unions are recognized.
On Sept. 17, Fallin told the Oklahoma National Guard to stop issuing identification cards to same-sex military spouses, saying recognition of same-sex marriage violated the state Constitution. Federal installations, such as Tinker Air Force Base and Fort Sill, were not affected by Fallin’s order.
On Thursday night, Hagel lambasted the nine states that have refused to follow the Pentagon policy and said he had ordered their National Guard commanders to do so.
“Not only does this violate the states’ obligations under federal law, their actions have created hardship and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they’re entitled to,” Hagel said Thursday in New York.
Weintz stopped short of saying Oklahoma will refuse to follow Hagel’s order, but made it clear Fallin would not go along with it willingly.
“Gov. Fallin is calling on President Obama and Secretary Hagel to stop using the National Guard as a pawn in a larger social agenda,” said Weintz. “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.”
Whether Oklahoma’s sovereignty claim will hold remains to be seen. The Supreme Court’s thin majority decision this summer rested more on the U.S. Constitution’s equal protection clause than on state’s rights.
Another complicating factor is the dual nature of the National Guard, which is subject to both state and national governments.
A 2004 Oklahoma constitutional amendment defines marriage as the union of one man and one woman, but both the state and U.S. constitutions have so-called supremacy clauses giving primacy to the federal constitution and laws.
Hagel did not say how the Obama administration will deal with states that don’t comply with the order, but Weintz suggested that federal support of the Oklahoma National Guard is at risk.
Weintz said Hagel “is threatening to revoke federal funding for Oklahoma’s National Guard” if the order is not obeyed.”
On Friday, Indiana said it will begin issuing the identification card on the advice of its attorney general. Besides Oklahoma, the other hold-out states are Florida, Georgia, Louisiana, Mississippi, South Carolina, Texas and West Virginia.