By Mike Dorf
As recently reported in the NY Times, state six states are currently refusing to issue spousal ID cards or to process federal benefits applications for same-sex spouses of military service members on the ground that to do so would violate state laws that deny legal recognition to same-sex marriages--despite the fact that Defense Secretary Hagel has taken the position that same-sex military spouses should be entitled to fully equal treatment with opposite-sex military spouses. Here I ask whether there is any basis in law for the resistance of state officials.
The short answer is no. State officials say that it would violate state law for them to comply with the orders but even assuming that is so, the state officials must comply because the Supremacy Clause means that in cases of conflict, federal law prevails over state law--unless the federal law itself is invalid. Is there any reason for thinking that the federal government lacks authority to require state militia officials--like those of the Texas State Guard who have instructed same-sex spouses that they must travel to distant federal bases to obtain their ID cards and to submit their paperwork--to conform to federal law?
Standing alone, the Constitution's Article II, Section 2, could be read to support the position of the recalcitrant states. It makes the President the Commander in Chief "of the Militia of the several States, when called into the actual Service of the United States" but by negative implication and in light of the 10th Amendment, reserves to the States the authority to govern the state militias when not called into actual service. So perhaps Texas et al could argue that neither the President nor the Secretary of Defense have authority to issue rules governing state militia officials--including rules governing who is married--when the militia members are on stateside reserve duty.
Yet that argument is fatally undermined by the clause of Article I, Section 8 that grants to Congress the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Insofar as States have reserved powers to conduct training of members of the National Guard, they must comply with rules set by Congress. And with the invalidation of DOMA
§ 3 in Windsor, the numerous statutes delegating authority for promulgating rules to the President and the Defense Secretary pretty clearly encompass the Hagel order.
Undergirding this analysis is the "dual enlistment" system that has been in place for decades, under which members of the National Guard are simultaneously in both the federal Guard and the state militia (and swear an oath to both), unless and until called to active federal duty, which terminates their state service. One might think this arrangement inconsistent with the state/federal division of labor that Articles I and II appear to assume, but the Supreme Court unanimously rejected that objection in 1990 in Perpich v. Dep't of Defense.
And that brings me, finally, to the Second Amendment. DC v. Heller and MacDonald v. City of Chicago have generally been coded as ideologically conservative and, in an important sense they obviously are: Gun rights are more popular on the right than the left. But in another sense, the triumph of the "individual right" view of the Second Amendment meant the defeat of another principle beloved by conservatives: federalism. Under the now-discarded "collective right" view of the Second Amendment, its purpose and import were to preserve state militias. Although no case law elaborated on exactly what that meant in practice, and although the Perpich Court failed to mention the Second Amendment at all, one plausible way to give the collective right teeth would have been to limit the scope of non-emergency nationalization of state militias. So it is at least a tiny bit ironic that some of the States that most strongly support the individual right view of the Second Amendment are the very ones that might have benefited from the alternative, collective right view of that Amendment, in constructing an argument for a state right to resist federal control of the militia. He who lives by the sword (or gun) dies by the sword (or gun).