The National Guard revives DOMA to deny benefits to gay couples.

The National Guard Revives DOMA

The National Guard Revives DOMA

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Expanding the LGBTQ Conversation
Sept. 23 2013 12:27 PM

The National Guard Revives DOMA

Oklahoma Gov. Mary Fallin
Oklahoma Gov. Mary Fallin joins the likes of Orval Faubus and George Wallace in defying the federal government.

Photo by Alex Wong/Getty Images

Last week, Oklahoma became the fourth state to prohibit its National Guard from providing benefits to married same-sex couples, joining the esteemed ranks of Texas, Louisiana, and Mississippi. All four states are in direct violation of a Pentagon directive, bolstered by a presidential decree, mandating that all legally married gay couples in the military be given marriage benefits following the death of DOMA. Yet the states argue that their constitutions—all of which ban same-sex marriage—forbid them from allowing gay service members equal treatment under the law.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

This is argle-bargle. As a general and steadfast principle, when state law and federal law come into conflict in the United States, federal law wins. Courts have repeatedly ruled that a state can’t interfere with or reject federal policies regarding immigration, trade, taxation, tariffs, advertising, substance regulation, and a vast array of issues vital to national interests. That’s not judicial activism; it’s the Constitution. The Supremacy Clause of Article VI insists that “the laws of the United States ... shall be the supreme law of the land,” regardless of “the constitution or laws of any state to the contrary.”


Opponents of the Pentagon’s new gay-friendly policy point out that it derives from an executive decree rather than a legislative act, rendering its supremacy over state law null. This, too, is pure nonsense. Since 1937, the Supreme Court has recognized that valid executive agreements pre-empt existing state law in all but a few narrow circumstances. And in the realm of military matters, an executive action by the U.S. president clearly overrides the will of homophobic Oklahomans—no matter how much the state’s governor wants to keep gay troops from receiving equal benefits.

Anti-gay activists fighting against the Pentagon’s order have one final argument: Each National Guard, they claim, is a state-based institution, and thus solely subject to its own state’s laws. Wrong again. State governors may normally supervise their state’s National Guard, but each guard is federally funded and must follow rules laid out by the Department of Defense. Moreover, any National Guard in any state may be federalized by the president and commanded to follow his orders—sometimes contrary to a governor’s wishes.

That, of course, is what happened in Little Rock, Ark., in 1957, when the state’s viciously racist governor, Orval Faubus, used National Guard soldiers to enforce segregation. Faubus’ belligerent racism compelled President Dwight D. Eisenhower to federalize the troops, commanding them to defy their own erstwhile leader. This happened again in 1963, when President John F. Kennedy was forced to federalize Alabama’s National Guard to thwart Gov. George Wallace’s ferocious fight against integration. At no point did any serious legal scholar question the president’s ability to issue these directives—which were, it should be noted, much more controversial than Obama’s move toward equality.

What ground, then, are Oklahoma, Texas, Louisiana, and Mississippi left to stand on? Plenty of other states with same-sex marriage bans are following the executive decree and granting benefits to gay service members; it’s hard to believe that the four states’ legislators truly believe their own legal rubbish. Take away the constitutional defense, and the four holdouts are left with unadulterated and unpatriotic homophobia. Conservative legislators cherish the flag-waving defense, the retreat to patriotic principles like protecting our flag and supporting our troops. When those troops happen to be gay, though, conservatives’ support is often nowhere in sight.