Dissenting Opinion by
Justice JOHNSTONE.I respectfully dissent. ; While the majority fashions an eloquent argument in support of its position, that argument merely attempts to evade the democratic and unambiguous purpose of the Kentucky Civil Rights Act, which is “[t]o safeguard all individuals within the state from discrimination.” KRS 344.020 (emphasis added). The majority’s judicial machinations aside, there is no exception to the Civil Rights Act for the Kentucky National Guard or the Kentucky Department of Military Affairs.
The Appellants in this case were undeniably serving the Commonwealth at the time of the alleged events. As the majority correctly notes, “[t]he Constitution of Kentucky, Section 220, gives to the Kentucky Legislature the power to maintain and regulate the ‘Militia.’ ” Op. at 18. Moreover, the Governor is the Commander-In-Chief of the militia, except when it is called into the service of the United States. Ky. Constitution § 75. And significantly, Kentucky Guardsmen are in the service of the Commonwealth “unless and until ordered to active duty.” Perpich v. Dept. of Defense, 496 U.S. 334, 345, 110 S.Ct. 2418, 2425, 110 L.Ed.2d 312, 325 (1990). Only when “that triggering event occurs does a Guardsman become a part of the Army and lose his status as a state serviceman.” Gilbert v. United States, 165 F.3d 470, 473 (6th Cir.1999) (quoting United States v. Hutchings, 127 F.3d 1255, 1258 (10th Cir.1997)). The fact that the Kentucky National Guard receives federal funds does not alter the status of the Guardsmen: “the issue of status depends on command and control and not on whether ... state or federal funds are being used.... ” Gilbert at 473. In this *21case, none of the plaintiffs had been called to active duty, so they were still under the state’s control.
The Kentucky Civil Rights Act provides that any person who has been injured under the Act “shall have a civil cause of action in Circuit Court.” KRS 344.450. And the state is not above suit for violation of the Act. In Dept. of Corrections v. Furr, Ky., 23 S.W.3d 615, 617 (2000), this Court held that the state has waived sovereign immunity for claims under KRS 344:
What hollow words indeed if the safeguard against discrimination does not include the right to be free from acts of discrimination committed by the Commonwealth itself, or in its name.
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To immunize the Commonwealth from the application of the Kentucky Civil Rights Act frustrates the act’s purpose and intent, deprives many of its citizens of its protection, and renders meaningless its pledge to safeguard all individuals from discrimination.
(Emphasis in original). These facts led the Franklin Circuit Court in this case to properly conclude: “[Wjhile the Plaintiffs were under the exclusive command of the Kentucky National Guard, the laws of the Commonwealth of Kentucky applied.... [And] the Kentucky National Guard, while under state control, must abide by the provisions set forth in KRS 344.”
The majority claims that Appellants’ suits against the Kentucky National Guard and the Kentucky Department of Military Affairs are nonjusticiable because “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian.” Op. at 16 (quoting Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842, 849 (1953)). In fact, “discipline” is a motif running throughout the majority opinion: some form of the word is used no less than nineteen (19) times. With such heavy reb-anee on the term, it makes sense to have a clear understanding of its meaning. The majority seems to ascribe at least three (3) different meanings to “discipline.” In the quote above, from Orloff, “discipline” refers to a formal grievance procedure or judicial protocol. Examples of discipline in this sense include the Uniform Code of Military Justice (see Chappell v. Wallace, 462 U.S. 296, 302, 103 S.Ct. 2362, 2366-67, 76 L.Ed.2d 586, 592 (1983)), the Board for Correction of Naval Records (see id.), and the National Guard Military Complaint System (see op. at 20). The word “discipline” also denotes a state of preparation or fitness. E.g., “It is because of this unique purpose that the military demands a respect for duty and a commitment to discipline that is without counterpart in civilian society.” See op. at 16. The third use of the word “discipline” is in the context of punishment. E.g., “A soldier in the Army is not free to quit his job, cannot be fired, and is subject to military discipline and military law.” See op. at 17.
But all of this discussion about discipline just diverts attention from the facts of the present case. The complainants in this case did not file suit based on a disciplinary matter, they claimed they were discriminated against. Failing to promote a Guardsman because of race, transferring a Guardsman because of race, or calling a Guardsman “nigger” or “black bitch,” if true, is not “discipline” of the type the majority claims is “prescribed by Congress.” Nor is it any other form of “discipline” that could be properly sanctioned, either by the military or any other institution. And it certainly is not the type of protected military action that is, according to the majority, designed to “foster instinctive obedience, unity, commitment and esprit de corps.” Op. at 16 (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 *22S.Ct. 1310, 1313, 89 L.Ed.2d 478, 484 (1986)). Such treatment demonstrates unabashed racial bigotry.
But if there is a military or nondiscriminatory reason to support the treatment these Guardsmen received, I do not believe it is beyond the comprehension of a civilian to grasp. As Justice Oliver Wendell Holmes famously observed in a slightly different context but with equal effect here: “Even a dog knows the difference between being kicked and being tripped over.” And to address the majority’s fears of a complete breakdown of military “discipline” if civil rights suits against the Guard are brought in civilian court, I offer Justice Scalia’s dissenting remarks in United States v. Johnson: “I do not think the [adverse] effect upon military discipline is so certain, or so certainly substantial, that we are justified in holding ... that [the Legislature] did not mean what it plainly said in the statute before us.” Johnson, 481 U.S. 681, 699, 107 S.Ct. 2063, 2073, 95 L.Ed.2d 648, 664 (1987) (Federal Tort Claims Act case involving a serviceman negligently killed while on duty. Three Justices joined Justice Scalia’s dissenting opinion, which eviscerated Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950)). Racial discrimination is a vile vestige from a bygone era in the history of our nation and our state. Permitting the Kentucky National Guard to continue to evade responsibility for its discriminatory acts — if it committed those acts — simply because it is a military body, will only make this Court an accomplice in entrenching that institution on the wrong side of history. And all individuals in our Commonwealth will be worse off for it.
The majority also claims that the Supremacy Clause bars Appellants’ claims: “Although Congress has not enacted statutes expressly preempting state regulation of discrimination suits against military authorities, the federal scheme described above strongly suggests that the field has been impliedly preempted by federal law.” Op. at 19. Not only does the majority’s argument rely heavily on Feres, supra, an opinion whose inherent shortcomings were pointed out in Johnson, supra, but the argument also misapprehends federal constitutional law. The majority is correct that the Militia Clause clearly gives Congress power over military affairs and specifically power over disciplining the militia. But these premises ignore the facts established above; namely, that Appellants do not complain about matters of “discipline”' — they decry alleged acts of blatant discrimination — and when the Kentucky National Guard has not been called into active service, it remains under the regulation of the Kentucky Legislature.
Preemption can occur in three ways: (1) Congress expressly intends to preempt a state law; (2) Congress “occupies the field” of regulation; or (3) compliance with both federal and state regulations is a physical impossibility. Gustafson v. City of Lake Angelus, 76 F.3d 778, 782-83 (6th Cir.1996). Congressional intent is the focus of a preemption inquiry. Id. at 783. The majority concedes that nothing in the Militia Clause, or any subsequent federal regulation, expressly prevents state legislatures from extending civil rights coverage to state Guards. And though courts may hold that Congress exempted the federal military from Title VII civil rights claims, that limitation is a far cry from implied preemption preventing states from extending those rights to state Guards. In the absence of a conflict, States are permitted to extend their citizens protections greater than federal law provides. The Kentucky Legislature has done just that with KRS 344, a fact we recognized in Meyers v. Chapman Printing, Ky., 840 S.W.2d 814, 817 (1992):
*23One important purpose of the Kentucky Civil Rights Act was to incorporate the anti-discrimination “policies embodied” in the Federal Civil Rights Acts of 1964 (P.L. 88-352, Title VII — Equal Employment Opportunity) as amended.... But there are further purposes expressed in the Kentucky statute not specified in the Federal, including “protect[ing] ... personal dignity and freedom from humiliation.” Whereas the policies embodied in the Kentucky Act are the same as the federal counterpart, the statutory remedy provided through the comt system differs markedly because of these further policy statements and because of the difference in remedy provided in KRS 344.450 as contrasted with those provided in the Federal Act....
(Internal citations omitted, emphasis added). KRS 344 was modeled after Title VII, both statutes are designed to protect civil rights, and they do so in the same manner. There simply is no conflict between the state and the federal laws, and the fact that KRS 344 extends greater protections than Title VII does not create such a conflict. KRS 344 plainly says that any individual who has been harmed under the Act may bring suit in Circuit Court. There is no exemption for the Kentucky National Guard. The limitations that apply in federal settings do not likewise apply to state matters. Even the Supreme Court in Chappell, supra, conceded that some civil rights violations in the military might properly be brought in civilian courts: “This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.” Chappell, 462 U.S. at 304, 103 S.Ct. at 2368, 76 L.Ed.2d at 594 (1983).
Despite the majority’s attempt to cloak the Kentucky Department of Military Affairs and Kentucky National Guard in the armor of federal protection, that organization remains subject to the provisions of KRS 344 and is not entitled to summary judgment in this case. As a circuit judge, I presided over a factually similar case in Moore v. Kentucky Department of Military Affairs and Army National Guard, 92-CI-06861 (unpublished). In denying the defendant’s motion to dismiss in Moore, I reached the same result then as I do today:
KRS 344.040 makes it unlawful for an employer to discriminate against an individual on the basis of race or sex, as well as other classes. KRS 344.030 defines “employer” as “a person who has eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year....” And KRS 344.010(1) defines “person” to include “the state, any of its political or civil subdivisions or agencies.”
The Department of Military Affairs, Army National Guard is attached to the office of the governor. KRS 36.010(5). As such, it falls within the definitions and provisions of KRS Chapter 344, and specifically KRS 344.010(1). Consequently, the Guard is subject to suit under KRS Chapter 344, and this Court does have subject matter jurisdiction ....
Moore, Order Denying Motion to Dismiss at 3-4 (January 12, 1993). Though a decade has passed since Moore, I steadfastly believe that this disposition alone faithfully complies with both the letter and spirit of the law.
STUMBO, J., joins this dissenting opinion.