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States’ Rights Clash: Texas Defies Pentagon On Same-Sex Benefits

texas military forces

The Texas National Guard says it will deny benefits for same-sex spouses, despite the Pentagon’s position on the subject.

The decision is based firmly on a states’ rights argument. In Texas, the state constitution defines marriage as a union of one man and one woman. Therefore, the Texas Military Forces, which falls under the direction and control of the state government, will follow the law as written in the Texas Constitution, said Maj. Gen. John Nichols, commanding general of the Texas Military Forces (TXMF).

In August, U.S. Secretary of Defense Chuck Hagel penned a notice to the military directing the various agencies to start offering same-sex couples military benefits. The memorandum came shortly after a primary provision in the Defense of Marriage Act was struck down by the US Supreme Court.

“It is now the Department’s policy to treat all married military personnel equally,” Hagel’s memo read. “The Department will construe the words ‘spouse’ and ‘marriage’ to include same-sex spouses and marriages, and the Department will work to make the same benefits available to all military spouses, regardless of whether they are in same-sex or opposite-sex marriages.”

The Defense Secretary’s memo went on to state that he expected all family and spousal benefits would be available to same-sex couples by Sept. 3. Children of a same-sex domestic partner are included in the military benefits order. Hagel added that the Defense Department understands that some same-sex couples are stationed or live in states where marriage is defined traditionally. Due to the varying laws about same-sex marriage, the impacted military members were granted non-chargeable leave to travel to a location where same-sex couple could marry.

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TXMF Maj. Gen. John Nichols said in an internal memo that due to a potential conflict, the guard would be unable to enroll same-sex families into the DEERS system at state-supported facilities until official and legal clarification on the matter materializes. DEERS is the Defense Enrollment Eligibility Reporting System utilized by military members. Nichols suggested that same-sex couples impacted by the Texas Military Forces decision should opt to enroll for health benefits at a federal installation.

Texas Military Forces spokeswoman Laura Lopez told The Washington Blade that the goal of the guard is to offer benefits to their airmen and soldiers under existing federal law, but that they also must adhere to state laws as well. Lopez also said, “The Texas Military Forces will continue to follow state law until legal clarification is determined. It is important to note that soldiers and airmen are not being denied these benefits, there are multiple locations throughout the state where they can enroll for same-sex benefits.”

But Stephen Peters, president of the American Military Partner Association, disagrees with the Texas decision and believes the group must give same-sex couples benefits because the agency receives some federal funding.

“It’s simply disgusting that Governor [Rick] Perry would try to play politics with our military families,” Peters said. “Considering the far majority of the funding for Texas Guard facilities comes from the federal government, I don’t believe they have a leg to stand on.”

Lucy Nashed, a representative from Rick Perry’s office, declined to comment on the amount, if any, of federal funding the Texas Military Forces agency receives, although she did say that the state must comply with existing law. Nashed also said, “The Texas Constitution clearly defines marriage as between one man and one woman. Texas Military Forces must adhere with Texas law and the Texas Constitution.”

The Supreme Court only struck down the portion of the Defense of Marriage Act that references the federal definition of marriage. It left standing the part of DOMA that gives states the option of not recognizing same-sex marriage.

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