Despite a Pentagon directive saying same-sex couples should be eligible for same-sex partner benefits, the National Guard in Texas and a number of other states is refusing to do so, saying that state level bans on marriage equality prohibit them from processing applications from gay couples.
Prior to Defense Secretary Leon Panetta leaving his post earlier this year, he announced that same-sex partners who sign what is called a “Declaration of Domestic Partnership” form would be eligible for a host of benefits including military identification cards for dependents. This would open up many other possible benefits, including survivor and life insurance benefits and military hospital access.
Since that time, the landmark DOMA Section 3 ruling has meant that the federal government is for the purpose of federal benefits and tax able to recognize same-sex marriages, and now most veteran and army benefits should be open to same-sex couples with a valid same-sex marriage license.
Tuesday was the first day all partners of same-sex troops could claim such benefits — and that was when a number of National Guards decided to make their announcements.
The Texas Military Forces was the first to give notice that it wouldn’t comply with the directive. A spokesman for Governor Rick Perry’s office announced, “As a state agency, Texas Military Forces must adhere with Texas law, and the Texas Constitution, which clearly defines marriage as between one man and one woman.”
The Texas Military Forces is denying that it is withholding benefits, however, saying in a statement as reported by CNN that “The state is not denying any federal benefits to military personnel or same-sex spouses of military personnel. This is a processing issue, not a denial of benefits issue. As such, we fully encourage eligible members to enroll for their federal benefits at one of the 20 nearest federal installations, which are dispersed throughout the state of Texas.”
Enrolling at a federal installation is being offered as a workaround so that, with a federal ID obtained from a federal office, the couples’ marriages will be acknowledged at any military base. However, critics point out that denying to process the benefits application adds up to much the same as denying benefits and thus this defense is hardly convincing.
Both say that their state laws prohibit them from accepting the applications because the state does not recognize same-sex marriages for the purpose of conferring marriage-tied benefits. Both are referring same-sex couples to federal installations.
The situation is made more interesting by the fact that the Alabama National Guard has now explicitly stated that it will follow Pentagon policy and honor partnership benefit applications from same-sex married couples even though they are not recognized under state law.
Why? Even though Alabama does not recognize same-sex marriages either from within the state or outside its borders, the policy directive from the Pentagon says that for these purposes any lawful marriage licenses from any state will be acceptable regardless of the state laws where the application is made.
What begins to emerge here is that this isn’t just a fight about same-sex marriage, though certainly that plays its part, but more where the boundary between state and federal powers are drawn and where that handover occurs.
It should be noted that all states are said to be seeking further clarification on this issue, so it could be that this adds up to little more than bluster and will be resolved within a matter of weeks.
However, should state National Guards dig in their heels, we could see an interesting court case emerge.
It is unlikely that subsequent court action will answer any direct constitutional questions about marriage equality bans themselves, but in examining whether for the purpose of these benefits it is lawful for states to claim authority to enforce their power to discriminate over federal powers, we will see another avenue open up by which state gay marriage bans may become vulnerable.
In somewhat related news, and following our report on veterans being barred from certain benefits under Title 38, the Obama administration has announced that following a court case that found Title 38 unconstitutional, its own determinations to that effect, the fact that the lawmakers defending Title 38 have withdrawn their defense, and Title 38′s almost identical language to the unconstitutional DOMA Section 3, Title 38 will no longer be enforced by the administration.
As such, the Veterans Administration has been instructed to begin the work of opening up all remaining veterans’ benefits to same-sex partnered veterans, something the VA has promised to do as quickly as possible.
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